State v. McNeil

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-238

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

STATE OF NORTH CAROLINA

v. Cumberland County

No. 12CRS058034

JERMAINE MCNEILL,

Defendant.

Appeal by defendant from judgment entered on or about 19

September 2013 by Judge Mary Ann Tally in Cumberland County

Superior Court. Heard in the Court of Appeals 11 August 2014.

Attorney General Roy A. Cooper III, by Assistant Attorney

General Robert K. Smith, for the State.

Gilda C. Rodriguez for defendant-appellant.

STROUD, Judge.

Upon the jury’s verdict finding defendant guilty of robbery

with a dangerous weapon, the trial court sentenced him to an

active prison term of 60 to 84 months. Defendant now appeals

from the judgment.

I. The State’s Evidence

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On the night of 22 June 2012, Lokie Stephenson entered a

Wilco Hess gas station on Raeford Road, approached the sales

counter, and purchased a cigar from the employee on duty, Sylvia

Smith. When Smith opened the cash drawer, Stephenson brandished

a small metallic handgun, removed approximately $150.00 from

the drawer, and exited the store through the left-hand door,

which “headed toward Skibo.” Smith immediately called 911.

Eric Perez, Jr., was pumping gas at the Wilco Hess station

at the time of the robbery. Looking into the store, he saw that

the clerk had her hands in the air and saw a man in a white

shirt and blue jeans behind the store’s counter. When the man

exited the store, Perez “walked in and asked [the clerk] if she

was all right.” Smith told Perez she had been robbed. As Perez

returned to his car, he observed a silver Lincoln “pulling out

of the parking lot” from “the next set of driveways” adjacent to

the Wilco Hess. The Lincoln “pulled off pretty fast” onto

Raeford Road heading “towards Skibo[.]”

Fayetteville Police Officer Vernon Thomas Parker was on

patrol in the area of Skibo and Raeford Roads when he received a

“be on the lookout” (“BOLO”) call for a vehicle allegedly

involved in a robbery of the Wilco Hess gas station at Raeford

Road and Roxie Avenue. Within two to five minutes, he spotted a

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silver or gray Lincoln matching the BOLO description “driving at

a high rate of speed” on Raeford. After observing the Lincoln

turn right onto “Skibo Road from Raeford Road at a high rate of

speed” and in a “careless and reckless” manner, Officer Parker

pulled his patrol car behind the vehicle. Visible inside the

Lincoln were a driver, later identified as defendant, and a

single passenger, later identified as Stephenson. “The

passenger was looking back” as though “to see who was behind

him.” As they approached a railroad crossing, Officer Parker

saw the driver look back toward him in his mirror. The Lincoln

then “cut across” four lanes of traffic and pulled into a

Kangaroo gas station at the corner of Skibo and Cliffdale,

stopping beside a fuel pump. Officer Parker parked his patrol

car two or three lengths away from the fuel pump. He observed a

“conversation” between the passenger and driver and saw the

passenger “continuously reaching up under his seat[.]”

Officer Parker called for backup and was soon joined at the

scene by Officer Kenneth Tims. As the two officers approached

the Lincoln, Stephenson exited the passenger’s side door and

began to walk away. Officer Parker detained Stephenson while

Officer Tims approached the driver’s side door and twice ordered

defendant to show his hands. Defendant “stuck his left hand out

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the driver’s window” but “continued to fumble with his right

hand” in the vicinity of “the center console of the vehicle.”

Only after Officer Tims ordered the driver to show his hands for

a third time did defendant “finally st[i]ck his . . . right hand

out the window.” Officer Tims removed defendant from the

vehicle and placed him in the back of a patrol car. Officer

Tims then searched the Lincoln’s interior as follows:

I observed inside the suspect vehicle there

was cash laying near the end of the

passenger seat. Small denominations of

bills—1’s and 5’s—near the buckle where the

seat belt fastens. The center console,

there was also cash sticking out of the

closed center console, the armrest portion

of it, and I could see cash sticking out.

Officer Tims also found a wadded-up $5 bill in the vehicle’s

ashtray and a “small silver handgun under the passenger seat.”

A total of $144 in cash – “three $20 bills, one $10 bill,

seven $5 bills, [and] 39 $1 bills” – was collected from the

vehicle. The gun and currency were admitted into evidence at

trial. Photographs of the vehicle’s center console with cash

“kind of sticking out” were also published to the jury.

Approximately 20 minutes after the robbery, Officer Josue

Rivera brought Smith to the Kangaroo station to view the two

suspects. Smith identified Stephenson as the person who robbed

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her, noting that he “was still wearing everything that he was

wearing at the time [of] the robbery[.]” However, she testified

that she did not see a getaway car or driver and could not

identify them.

At trial, Perez identified photographs of the Lincoln

stopped by Officer Parker as the “vehicle that pulled out of the

parking lot a little further up from the gas station.” The car

was registered to Stephenson’s girlfriend, Jewel McFall.

II. Jury Instructions

On appeal, defendant first challenges the trial court’s

decision to instruct the jury on the doctrines of concerted

action and aiding and abetting. He argues that the State’s

evidence did not show that he was actually or constructively

present at the robbery or that he shared a common plan or

purpose with Stephenson, as required to establish their acting

in concert. Likewise, defendant contends the evidence did not

show he knowingly aided Stephenson’s robbery of the Wilco Hess

simply because he was driving the vehicle in which Stephenson

was later found.

“It is generally error, prejudicial to defendant, for the

trial court to instruct the jury upon a theory of a defendant’s

guilt which is not supported by the evidence.” State v. Brown,

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80 N.C. App. 307, 311, 342 S.E.2d 42, 44 (1986). Accordingly, a

jury instruction on a theory of criminal liability must be

“based upon a state of facts presented by some reasonable view

of the evidence.” State v. Sweat, 366 N.C. 79, 89, 727 S.E.2d

691, 698 (2012) (citation and quotation marks omitted). Whether

a particular jury instruction is supported by the evidence is a

question of law subject to de novo review. State v. Gabriel,

207 N.C. App. 440, 443, 700 S.E.2d 127, 129 (2010), disc. review

denied, 365 N.C. 211, 710 S.E.2d 19 (2011).

“In order to support a jury instruction on acting in

concert, the evidence must be sufficient to show that the

defendant was present at the scene of the crime and that the

defendant was acting together with another who did the acts

necessary to constitute the crime pursuant to a common plan or

purpose to commit the crime.” Id. at 443-44, 700 S.E.2d at 129.

The defendant’s presence at the scene may be actual or

constructive. This Court has held that the driver of a getaway

car in an armed robbery “may be constructively present at the

scene of a crime although stationed a convenient distance away.”

State v. Combs, 182 N.C. App. 365, 370, 642 S.E.2d 491, 496,

aff’d per curiam, 361 N.C. 585, 650 S.E.2d 594 (2007). As for

the requirement of a “common plan or purpose[,]” Gabriel, 207

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N.C. App. at 443-44, 700 S.E.2d at 129, we have explained that

“acting in concert does not require an express agreement between

the parties. All that is necessary is an implied mutual

understanding or agreement to do the crimes.” State v. Hill,

182 N.C. App. 88, 93, 641 S.E.2d 380, 385 (2007) (citation and

quotation marks omitted).

“An instruction on aiding and abetting is supported . . .

if there is evidence: ‘(1) that the crime was committed by

another; (2) that the defendant knowingly . . . aided the other

person; and (3) that the defendant’s actions . . . contributed

to the commission of the crime by the other person.’” State v.

Baskin, 190 N.C. App. 102, 111, 660 S.E.2d 566, 573 (quoting

State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996)).

Aiding and abetting may be established by proof that a person

accompanies the actual perpetrator to the

vicinity of the offense and, with the

knowledge of the actual perpetrator, remains

in that vicinity for the purpose of aiding

and abetting in the offense and sufficiently

close to the scene of the offense to render

aid in its commission, if needed, or to

provide a means by which the actual

perpetrator may get away from the scene upon

the completion of the offense.

State v. Pryor, 59 N.C. App. 1, 7, 295 S.E.2d 610, 615 (1982)

(emphasis added) (citation and quotation marks omitted). Like

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acting in concert, “aiding and abetting [does not] require a

defendant to expressly vocalize h[is] assent to the criminal

conduct.” State v. Marion, ___ N.C. App. ___, ___, 756 S.E.2d

61, 68 (2014). “Communication of intent to [aid] the

perpetrator may be inferred from the defendant’s actions and

from his relation to the perpetrator.” State v. Allen, 127

N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997).

Our Supreme Court has characterized the distinction between

concerted action and aiding and abetting as “of little

significance.” State v. Davis, 301 N.C. 394, 398, 271 S.E.2d

263, 265 (1980). Based on the standards set forth above, we

conclude the trial court properly instructed the jury on both

acting in concert and aiding and abetting. See id.

The evidence showed that defendant transported Stephenson

from the scene of an armed robbery in a vehicle located in the

parking lot directly adjacent to the robbery site. Defendant

“pulled off pretty fast” and then proceeded “at a high rate of

speed, careless and reckless” down Raeford and onto Skibo Road.

At the sight of Officer Parker’s patrol car, defendant took

apparently evasive action by cutting across four lanes of

traffic. Despite repeated orders from police to display his

hands, defendant “continued to fumble with his right hand” in

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the vicinity of the vehicle’s center console. Officers

subsequently observed the spoils of the robbery visibly

protruding from the center console. Finally, as noted by the

trial court, the fact that defendant was driving a vehicle

belonging to Stephenson’s girlfriend tends to show that

Stephenson also arrived at the scene in the vehicle, rather than

randomly encountering defendant thereafter and “jump[ing] in the

car.” A reasonable view of this evidence would allow a

determination that defendant was constructively present at the

robbery perpetrated by Stephenson in order to assist Stephenson

by driving the getaway car. See id. (“[T]he evidence in this

case warranted jury instructions on both principles[.]”); see

also Baskin, 190 N.C. App. at 111, 660 S.E.2d at 574 (aiding and

abetting); Combs, 182 N.C. App. at 370, 642 S.E.2d at 496

(acting in concert). Defendant’s argument is overruled.

III. Sufficiency of the Evidence

Defendant next claims the trial court erred in denying his

motion to dismiss the charge of robbery with a dangerous weapon

at the conclusion of the evidence.1 While conceding that

Stephenson committed an armed robbery at the Wilco Hess,

1

The court dismissed charges of operating a vehicle without a

license and conspiracy to commit robbery with a dangerous

weapon.

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defendant contends there was no evidence that he was

constructively present at the robbery or that he shared a common

plan or purpose with Stephenson, as required to establish guilt

by acting in concert. Similarly, defendant insists the State

failed to prove that he knowingly aided Stephenson or

contributed to his commission of the robbery.

“Upon review of a motion to dismiss, the court determines

whether there is substantial evidence, viewed in the light most

favorable to the State, of each essential element of the offense

charged and of the defendant being the perpetrator of the

offense.” State v. Lane, 163 N.C. App. 495, 499, 594 S.E.2d

107, 110 (2004). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313

S.E.2d 585, 587 (1984). “[T]he State is entitled to every

reasonable intendment and every reasonable inference to be drawn

therefrom; contradictions and discrepancies are for the jury to

resolve and do not warrant dismissal[.]” State v. Hill, 365

N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (citation and

quotation marks omitted).

Robbery with a dangerous weapon consists of “(1) an

unlawful taking or an attempt to take personal property from the

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person or in the presence of another, (2) by use or threatened

use of a firearm or other dangerous weapon, (3) whereby the life

of a person is endangered or threatened.” State v. Call, 349

N.C. 382, 417, 508 S.E.2d 496, 518 (1998); see N.C. Gen. Stat. §

14-87 (2013).

As discussed in the previous section, we find substantial

evidence that defendant joined with Stephenson in committing the

robbery and was thus liable for acting in concert with

Stephenson or as his aider and abettor. By driving the getaway

car stationed in a parking lot immediately adjacent to the

robbery, defendant evinced both his constructive presence at the

crime scene and his shared plan or purpose with Stephenson to

commit the offense. See Davis, 301 N.C. at 398, 271 S.E.2d at

265. Defendant’s speedy and reckless manner of flight was

further evidence of his intent to assist Stephenson. See

Baskin, 190 N.C. App. at 111, 660 S.E.2d at 574. Finally,

defendant’s suspicious movements near the vehicle’s center

console, where cash consistent with the amount stolen during the

robbery was found, provided additional circumstantial evidence

of defendant’s knowledge and intent. See Davis, 301 N.C. at

398, 271 S.E.2d at 265. “This evidence—and the reasonable

inferences that may be drawn from it—is relevant evidence that a

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reasonable juror could conclude was adequate to support the

conclusion that Defendant remained in the vicinity of the crime

scene, was willing to render assistance, and did, in fact, aid

in the perpetration of the offense[.]” Marion, ___ N.C. App. at

___, 756 S.E.2d at 69. Accordingly, the trial court properly

denied defendant’s motion to dismiss.

IV. Conclusion

We hold that defendant received a fair trial free from

prejudicial error.

NO ERROR.

Judges BRYANT and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).