# State v. Sloan

> Court of Appeals of North Carolina · December 19, 2006 · 180 N.C. App. 527

URL: https://www.frixlaw.com/law-library/cases/9846694

## Case

- **Full name:** STATE OF NORTH CAROLINA v. DWIGHT EUGENE SLOAN and HOLANDA KAY WOOTEN, Dependants
- **Court:** Court of Appeals of North Carolina
- **Decided:** December 19, 2006
- **Citations:** 180 N.C. App. 527; 638 S.E.2d 36
- **Precedential status:** Published
- **Opinion:** Concurring in part by Elmore
- **Judges:** Bryant, McGee, Elmore
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9846694

## Opinion text

ELMORE, Judge,
concurring in part and dissenting in part.
I concur in the majority opinion that there was no error in defendant Sloan’s conviction for first-degree murder. However, I respectfully dissent from that part of the majority opinion holding that the State produced sufficient evidence to survive defendant Wooten’s motion to dismiss. Because I believe that the evidence was, in fact, insufficient to convince a rational trier of fact that defendant Wooten was guilty of first-degree murder, I would order a new trial for defendant Wooten.
This Court has recently outlined several guiding principles for reviewing the sufficiency of the evidence needed to survive defendant’s motion to dismiss:
*537 The evidence is to be viewed in the light most favorable to the State. All contradictions in the evidence are to be resolved in the State’s favor. All reasonable inferences based upon the evidence are to be indulged in. While the State may base its case on circumstantial evidence requiring the jury to infer elements of the crime, that evidence must be real and substantial and not merely speculative. Substantial evidence is evidence from which a rational trier of fact could find the fact to be proved beyond a reasonable doubt
State v. Berry, 143 N.C. App. 187, 207 , 546 S.E.2d 145, 159 (2001) (citations omitted).
The State recites in its brief the doctrine of acting in concert, quoting from State v. Barnes, 345 N.C. 184, 233 , 481 S.E.2d 44, 71 (1997):
If “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 puipose ... or as a natural or probable consequence thereof.”
Id. (quoting State v. Erlewine, 328 N.C. 626, 637 , 403 S.E.2d 280, 286 (1991)). The State then proceeds to argue its case under a theory of aiding and abetting. Under this theory,
the jury must find three things in order to convict the defendant of first-degree murder . . . : (1) that the crime was committed by another; (2) that the defendant knowingly advised, instigated, encouraged, procured, or aided the other person; and (3) that the defendant’s actions or statements caused or contributed to the commission of the crime by the other person.
State v. Bond, 345 N.C. 1, 24 , 478 S.E.2d 163, 175 (1996) (citing State v. Francis, 341 N.C. 156, 161 , 459 S.E.2d 269, 272 (1995)).
I would find that the State failed to carry its burden under either doctrine.
To prevail under its acting in concert theory, the State must show that defendant Wooten was present, that she had joined in purpose with defendant Sloan to commit a crime, and that the crime for which she was being tried, first-degree murder, was either “in pursuance of [that] common purpose ... or [was] a natural or probable conse *538 quence thereof.” Barnes, 345 N.C. at 233 , 481 S.E.2d at 71 . Though the State attempts to show that defendant Wooten had a motive to murder Pearsall, the mere presence of motive does not necessitate sending the case to the jury. Likewise, while the State hopes to prove that defendant Wooten told defendant Sloan that Pearsall had stolen his stereo in order to provoke a confrontation between the two, it offers no evidence that this was, in fact, her plan. Finally, the State points out that after being near enough to see and hear the gun being shot and Sutton shouting that defendant Sloan “should have shot the mother f-in the head,” defendant Wooten nevertheless drove after Pearsall with defendant Sloan in the car. Yet despite the majority’s position that this evidence is sufficient, there remains no evidence of a common purpose. As stated above, the use of circumstantial evidence is permissible. Nevertheless, “that evidence must be real and substantial and not merely speculative. Substantial evidence is evidence from which a rational trier of fact could find the fact to be proved beyond a reasonable doubt." Berry, 143 N.C. App. at 207 , 546 S.E.2d at 159 (emphasis added). In this case, the “common purpose” of defendant Wooten and defendant Sloan could easily have been to recover stolen property. Such a purpose would not have been illegal and would not have led, as a “natural or probable consequence,” to murder. There is simply no substantial evidence that the two had joined together for the purpose of committing a crime.
Though the majority does not focus on it, the State’s aiding and abetting theory also must fail. It is certain that “the crime was committed by another”, namely defendant Sloan. Bond, 345 N.C. at 24 , 478 S.E.2d at 175 . Defendant Wooten’s actions in driving surely “contributed to the commission of the crime.” Id. But there is no substantial evidence that defendant Wooten “knowingly advised, instigated, encouraged, procured, or aided the other person.” Id. (emphasis added). On the contrary, by all accounts, defendant Wooten was shocked by the murder.
Because I would find that it was error for the trial court to deny defendant Wooten’s motion to dismiss absent substantial evidence of defendant Wooten’s knowing intent to aid defendant Sloan in the commission of a crime, I respectfully dissent from that part of the majority opinion that would uphold defendant Wooten’s conviction for first-degree murder.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9846694. Public record. Not legal advice.