Opinion
No. COA05-866
Filed 21 March 2006 This case not for publication
Appeal by Defendant from judgment entered 23 February 2005 by Judge Robert F. Floyd, Jr. in Superior Court, Scotland County. Heard in the Court of Appeals 6 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General Gary A. Scarzafava, for the State. Allen W. Boyer, for defendant-appellant.
Scotland County Nos. 03CRS54666-67, 04CRS1211.
An instruction on the principle of acting in concert is proper when there is evidence that two or more persons acted together with a common plan or purpose to commit the crime. State v. Moxley, 78 N.C. App. 551, 555, 338 S.E.2d 122, 124 (1985), disc. review denied, 316 N.C. 384, 342 S.E.2d 904 (1986). Because we find the State presented substantial evidence that Defendant acted pursuant to a common plan, we hold the trial court did not err in instructing the jury on acting in concert. Additionally, since the State presented substantial evidence of the crimes of felony breaking and entering and felony larceny, the trial court did not err in denying Defendant's motions to dismiss. The State presented evidence tending to show that at 4:27 a.m. on 13 November 2003, Officer Jack Pratt of the Laurinburg Police Department observed two men exiting the Wright Stop store, which had been closed or out of business for a week. He noted that the glass window of the front door had been broken out. He identified the first man he saw exiting the store as Defendant Edward Louis Bethea and the second man, who followed Defendant out approximately fifteen seconds later, as Horace Harrington. Pratt observed Harrington carrying a cardboard box. When the officer approached, Harrington dropped the box and ran. Officer Pratt detained Defendant. Officer Pratt observed that the cardboard box contained beer, wine, alcohol, cigarettes, and cigars. He also observed near the front door an orange bag containing similar items. Defendant told Officer Pratt that Horace Harrington was the person responsible and that he could take the officer to where all of the stolen goods were located, at "105 Marcella Street," approximately 100 yards from the Wright Stop. A few months later Defendant saw Officer Pratt and told him that he "was on that powder when [Officer Pratt] caught [him] coming out that store."
Earl McLean testified for the State that after midnight on 13 November 2003, he received a call from Defendant, who is his first cousin, inviting McLean to come to McLean's sister's house at 105 Marcella Street to have some beer and wine. McLean went to this address and saw Defendant, Horace Harrington, and his brother, James McLean, in the residence. McLean saw beer stored in the kitchen cabinets and garbage bags. McLean asked where they obtained the beer. Defendant responded that Harrington broke into the Wright Shop. Harrington asked someone to go back with him to the store to "watch out" for him. Defendant left the residence with Harrington. Shortly afterward, the police brought Defendant and Harrington back to the residence.
Ronnie Wright of R. Wright Associates, Incorporated, the owner of the Wright Stop, testified that Defendant did not have permission to enter the Wright Shop.
Defendant did not present any evidence. Defendant was found guilty of felony breaking or entering, felony larceny, and habitual felon status. The offenses were consolidated for judgment and Defendant was sentenced to an active term of imprisonment for a minimum of 168 months and a maximum of 211 months.
On appeal, Defendant argues that the trial court erred in (1) instructing the jury on acting in concert, and (2) denying his motion to dismiss.
First, Defendant contends that the trial court erred by submitting an instruction on acting in concert. We disagree.
This principle of acting in concert posits that:
[i]f `two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.'
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (quoting State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971), death sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761 (1972)) (alterations in original). The principle applies when the defendant "is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). An instruction on the principle is proper when there is evidence that two or more persons acted together with a common plan or purpose to commit the crime. Moxley, 78 N.C. App. at 555, 338 S.E.2d at 124.
Defendant argues there is no evidence that he and Harrington acted pursuant to a common plan or purpose. We disagree. Earl McLean's testimony established that Defendant accompanied Harrington to the store after Harrington requested someone to act as his lookout. Officer Pratt saw Defendant exit the store just before Harrington, who was carrying a cardboard box full of purloined items. Officer Pratt also found a bag full of similar contraband at the front door. Based upon this evidence, a reasonable inference may be drawn that the two men were acting together in a common plan or purpose to commit the crimes. The trial court properly submitted the instruction. This assignment of error is overruled.
Second, Defendant contends the trial court erred by denying his motion to dismiss for insufficient evidence. We disagree.
A motion to dismiss is properly denied if substantial evidence is presented to establish every element of the charged offense and to identify the defendant as the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002). The evidence must be examined in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Larceny consists of the wrongful taking and carrying away of the personal property of another without the owner's consent and with the intent to deprive permanently the owner of the property. State v. Edwards, 310 N.C. 142, 146, 310 S.E.2d 610, 613 (1984).
We hold the evidence summarized above is sufficient to establish all of the elements of the offense of larceny and to identify Defendant as a perpetrator.
"The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein." State v. Mitchell, 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993). Defendant argues that the State did not present sufficient evidence that he entered the store with the intent to commit a felony. But Earl McLean testified for the State that in the early morning of 13 November 2003, he met Defendant and Harrington at 105 Marcella Street where they were drinking beer. When asked where they got the beer and Defendant told him that "Horace broke into the Wright Stop." Harrington asked someone to go back with him to the storeto "watch out" for him. Defendant left the residence with Harrington. This was substantial evidence so that the jury could have inferred Defendant's intent to commit a larceny when he entered Wright Stop. See Scott, 356 N.C. at 597, 573 S.E.2d at 869.
Accordingly, the trial court did not err in denying Defendant's motions to dismiss.
No error.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).