State v. Thomas

309 S.E.2d 564 (1983)

STATE of North Carolina v. Edith Sue THOMAS.

No. 8321SC81.

Court of Appeals of North Carolina.

December 20, 1983.

*566 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Marilyn R. Rich, Raleigh, for the State.

Davis & Harwell by Fred R. Harwell, Jr., Winston-Salem, for defendant-appellant.

EAGLES, Judge.

Defendant excepts to and assigns as error the denial by the trial court of her motion to dismiss the charges against her. Defendant was found not guilty of felonious sale and delivery of LSD. Denial of the motion with respect to the charge of felonious sale and delivery of marijuana is the issue now before the court. Defendant contends that the State's evidence was insufficient to sustain her conviction and that the charge should therefore not have been submitted to the jury.

It is clear from the briefs and the record that defendant was tried on the theory that one who aids or abets another in the commission of a crime is guilty as a principal. E.g., State v. Walden, 306 N.C. 466, 293 S.E.2d 780 (1982) (child abuse); State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970) (murder; accessory before the fact); see generally 4 N.C. Index 3d, "Criminal Law," § 9.2 (1976). With respect to this theory, defendant contends that the evidence of her conduct during the transaction in question was insufficient to support a finding that she aided or abetted Dearman in the sale of marijuana to officers Wiggins and Hall and that her motion to dismiss should have been granted. We disagree.

In a motion to dismiss, the question presented is whether the evidence is legally sufficient to support a verdict of guilty on the offense charged, thereby warranting submission of the charge to the jury. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). In order to withstand a motion to dismiss, the State's evidence as to each element of the offense charged must be substantial. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981); State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979). Substantial evidence in this context means more than a scintilla. Id; see State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R. 625 (1944) cert. denied sub nom. Weinstein v. State, 324 U.S. 849, 65 S. Ct. 689, 89 L. Ed. 1410 (1945) (same test in motion for nonsuit). The evidence, considered in the light most favorable to the State and indulging every inference in favor of the State, must be such that a jury could reasonably find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981).

Here, there is no question that a sale of marijuana from Dearman to the officers took place on 15 April 1982 and that defendant was present at the scene. In order to support a conviction on a theory of aiding or abetting, there must be substantial evidence that defendant's conduct amounted to more than mere presence at the scene. State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655 (1967). The defendant must also have the intent to aid or abet. State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied sub nom. Sanders v. North Carolina, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976). However, presence at the scene need be accompanied only by circumstantial evidence in order to permit the inference that a person aided and abetted the commission *567 of the offense. "The communication or intent to aid, if needed, does not have to be shown by express words of the defendant, but may be inferred from his actions and his relation to the actual perpetrators." Id. at 291, 218 S.E.2d at 357. In some circumstances, presence alone may be sufficient to permit the inference that the defendant aided or abetted. E.g., State v. Walden, State v. Sanders, both supra; State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973); State v. Williams, 225 N.C. 182, 33 S.E.2d 880 (1945).

In this case, the evidence shows (1) that defendant was present at the scene, (2) that she was a friend of the perpetrator, and (3) that, immediately following the sale of LSD, she volunteered to the officers in Dearman's presence that Dearman had some marijuana. Even though defendant may not have explicitly encouraged Dearman to sell the marijuana, her conduct is clearly sufficient to support a finding that she aided and abetted in the sale of marijuana to the officers.

In further support of her first assignment of error, defendant contends that the evidence is insufficient to support the finding that a sale and delivery of a controlled substance actually occurred. Defendant points out that no marijuana was offered as evidence by the State and that there was no proof that the substance found by the laboratory to be marijuana was the same substance sold by Dearman to the officers. This contention is without merit. In order to support a conviction for sale and delivery of a controlled substance, the State needs only to establish that a controlled substance was transferred. State v. Salem, 50 N.C.App. 419, 274 S.E.2d 501 (1981), disc. rev. denied, 302 N.C. 401, 279 S.E.2d 355 (1981). Here, the State's evidence shows all that is necessary to establish the transaction between Dearman and the officers. Any weaknesses or doubts inferable from the failure to produce the marijuana in court are to be raised on cross-examination. Defendant's first assignment of error is overruled.

In her second assignment of error, defendant contends that the trial court erroneously sustained objections to certain questions posed by her attorney in his cross-examination of Officer Wiggins. Defendant's assignment is based on the following exchange:

MR. HARWELL [Defendant's attorney]: Couldn't you have left Edith Thomas at home that day? OFFICER WIGGINS: No sir, I could not. MR. HARWELL: You were compelled to take Edith Thomas with you on the fifteenth of April over to James Dearman's MR. WALKER: Objection. THE COURT: Sustained. MR. HARWELL: Why couldn't you leave her at home? OFFICER WIGGINS: She made the statement she couldn't go unless this kid went with us. MR. HARWELL: Why didn't you leave her and the child at home? OFFICER WIGGINS: We needed her to introduce us back into James Dearman. MR. HARWELL: So, it was more important for you to get that introduction that it was to think about the safety of that little boy? MR. WALKER: Objection. THE COURT: Sustained.

Defendant argues that the excluded testimony was relevant to her defense because it tended to show that she would not have been present at the scene of the crime without having been persuaded by the officers to accompany them. This contention is without merit.

The question before the trial court was whether defendant aided or abetted in the sale of marijuana to Officers Wiggins and Hall on 15 April 1982. Defendant's conviction rests on evidence of her conduct while present at the scene of the transaction. Testimony concerning how defendant came to be at the scene is simply not relevant; she was always free not to engage in the conduct that led to her conviction. Defendant has failed to show how the excluded testimony bears any logical relation to the *568 issue before the trial court or how its exclusion was prejudicial to her defense. We hold that the trial court's evidentiary rulings on this question were correct and that the testimony was properly excluded. See State v. Adams, 299 N.C. 699, 264 S.E.2d 46 (1980) (testimony in a rape case that an intersection was busy and victim could have screamed for help held not relevant where not related to the time of the offense). See generally Brandis N.C. Evidence § 77 (1982). Defendant's second assignment of error is therefore overruled. In the trial of this defendant we find

No error.

ARNOLD and WELLS, JJ., concur.