acting in concert doctrine in North Carolina

2010Ed. 2d 473 (1998), this Court, in approving instructions virtually identical to the instructions provided in the case at bar, gave the following “correct statement” of the doctrine of acting in concert: “[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.’ ” Id. at 233, 481 S.E.2d at 71 (quoting State v. Westbroo

2006The 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 purpose . . . 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)).

2010Ed. 2d 473 (1998), this Court, in approving instructions virtually identical to the instructions provided in the case at bar, gave the following “correct statement” of the doctrine of acting in concert: “[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.’ ” Id. at 233, 481 S.E.2d at 71 (quoting State v. Westbroo

2010Ed. 2d 473 (1998), this Court, in approving instructions virtually identical to the instructions provided in the case at bar, gave the following “correct statement” of the doctrine of acting in concert: “[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.’ ” Id. at 233, 481 S.E.2d at 71 (quoting State v. Westbroo

2011Here, Defendant was tried on a theory of acting in concert. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others .in pursuit of the common plan.’” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328-29 , 451 S.E.2d 131, 137 (1994)).

2011Here, Defendant was tried on a theory of acting in concert. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others .in pursuit of the common plan.’” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328-29 , 451 S.E.2d 131, 137 (1994)).

2020Or if a defendant is charged with first-degree murder under the principle of acting in concert, “the conviction cannot be upheld absent a jury charge to that effect.” Wilson, 345 N.C. at 123-24 , 478 S.E.2d at 511 (“[A]bsent an acting in concert instruction, it was necessary for the State to prove each element of first-degree murder on the theory of premeditation and deliberation[.]”).

2020Or if a defendant is charged with first-degree murder under the principle of acting in concert, “the conviction cannot be upheld absent a jury charge to that effect.” Wilson, 345 N.C. at 123-24 , 478 S.E.2d at 511 (“[A]bsent an acting in concert instruction, it was necessary for the State to prove each element of first-degree murder on the theory of premeditation and deliberation[.]”).

2019To support an acting in concert instruction, the State must provide sufficient evidence that the defendant (1) was “present at the scene of the crime” and (2) “act[ed] [] together with another who [did] 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); State v. Erlewine, 328 N.C. 626, 637 , 403 S.E.2d 280, 286 (1991) (noting that each person may be actually or constructively present and is equally guilty of any crime committed in pursuance of their common purpose).

2019To support an acting in concert instruction, the State must provide sufficient evidence that the defendant (1) was “present at the scene of the crime” and (2) “act[ed] [] together with another who [did] 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); State v. Erlewine, 328 N.C. 626, 637 , 403 S.E.2d 280, 286 (1991) (noting that each person may be actually or constructively present and is equally guilty of any crime committed in pursuance of their common purpose).

2024“The acting in concert doctrine allows a defendant acting with another person for a common purpose of committing some crime to be held guilty of a murder committed in the pursuit of that common plan . . . .” State v. Roache, 358 N.C. 243, 306 (2004).

2010See State v. Roache, 358 N.C. 243, 306 , 595 S.E.2d 381, 421 (2004) (the doctrine of acting in concert “allows a defendant acting with another person for a common purpose of committing some crime to be held guilty of a *643 [crime] committed in the pursuit of that common plan even though the defendant did not personally commit the [crime].”).

2020Under the doctrine of acting in concert, “[a] person may be found guilty of committing a crime if he is at the scene acting together with another person with a common plan to commit the crime, although the other person does all the acts necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512 , 428 S.E.2d 150, 156 (1993); accord State v. Joyner, 297 N.C. 349, 356 , 255 S.E.2d 390, 395 (1979) (“To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.”).

2020Under the doctrine of acting in concert, “[a] person may be found guilty of committing a crime if he is at the scene acting together with another person with a common plan to commit the crime, although the other person does all the acts necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512 , 428 S.E.2d 150, 156 (1993); accord State v. Joyner, 297 N.C. 349, 356 , 255 S.E.2d 390, 395 (1979) (“To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.”).

2020Under the doctrine of acting in concert, “[a] person may be found guilty of committing a crime if he is at the scene acting together with another person with a common plan to commit the crime, although the other person does all the acts necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512 , 428 S.E.2d 150, 156 (1993); accord State v. Joyner, 297 N.C. 349, 356 , 255 S.E.2d 390, 395 (1979) (“To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.”).

2020Under the doctrine of acting in concert, “[a] person may be found guilty of committing a crime if he is at the scene acting together with another person with a common plan to commit the crime, although the other person does all the acts necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512 , 428 S.E.2d 150, 156 (1993); accord State v. Joyner, 297 N.C. 349, 356 , 255 S.E.2d 390, 395 (1979) (“To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.”).

1997Accordingly, defendant contends, citing State v. Blankenship, 337 N.C. 543 , 447 S.E.2d 727 (1994), overruled by State v. Barnes, 345 N.C. 184 , 481 S.E.2d 44 (1997), that defendant and Boergert could not have acted together pursuant to a common plan to commit a first-degree murder. *397 In Barnes the majority of this Court 1 adopted the following statement of the doctrine of acting in concert: [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 g

1997Accordingly, defendant contends, citing State v. Blankenship, 337 N.C. 543 , 447 S.E.2d 727 (1994), overruled by State v. Barnes, 345 N.C. 184 , 481 S.E.2d 44 (1997), that defendant and Boergert could not have acted together pursuant to a common plan to commit a first-degree murder. *397 In Barnes the majority of this Court 1 adopted the following statement of the doctrine of acting in concert: [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 g

2020More specifically, defendant asserted that the trial court had committed plain error by “allow[ing] the jury to find [defendant] guilty of possession of a firearm by a convicted felon for Featherstone’s possession of the Glock pistol which [defendant] testified Sapp handed to Featherstone at the McDonald’s later that night after whatever had occurred at the recording studio.” In its initial, unpublished decision in this case, the Court of Appeals determined that, in light of defendant’s concession that there was sufficient evidence to permit the jury to find defendant guilty of possession of a

2020More specifically, defendant asserted that the trial court had committed plain error by “allow[ing] the jury to find [defendant] guilty of possession of a firearm by a convicted felon for Featherstone’s possession of the Glock pistol which [defendant] testified Sapp handed to Featherstone at the McDonald’s later that night after whatever had occurred at the recording studio.” In its initial, unpublished decision in this case, the Court of Appeals determined that, in light of defendant’s concession that there was sufficient evidence to permit the jury to find defendant guilty of possession of a

2011Here, Defendant was tried on a theory of acting in concert. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others .in pursuit of the common plan.’” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328-29 , 451 S.E.2d 131, 137 (1994)).

2011Here, Defendant was tried on a theory of acting in concert. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others .in pursuit of the common plan.’” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328-29 , 451 S.E.2d 131, 137 (1994)).

1995“Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime *30 committed by any of the others in pursuit of the common plan.” State v. Laws, 325 N.C. 81, 97 , 381 S.E.2d 609, 618 (1989), judgment vacated on other grounds, 494 U.S. 1022 , 108 L.

1995“Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime *30 committed by any of the others in pursuit of the common plan.” State v. Laws, 325 N.C. 81, 97 , 381 S.E.2d 609, 618 (1989), judgment vacated on other grounds, 494 U.S. 1022 , 108 L.

2003Under the doctrine of acting in concert, “[i]f ‘two [or more] 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. Mann, 355 N.C. 294, 306 , 560 S.E.2d 776, 784 (citations omitted), cert. denied, — U.S. —, 154 L.

2003Under the doctrine of acting in concert, “[i]f ‘two [or more] 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. Mann, 355 N.C. 294, 306 , 560 S.E.2d 776, 784 (citations omitted), cert. denied, — U.S. —, 154 L.

2020State v. Collington (Collington II), 259 N.C. App. 127, 141 , 814 S.E.2d 874, 885 (2018) (“[H]ad appellate counsel proffered the arguments under Pakulski, defendant would have secured a new trial upon simply demonstrating that the acting in concert instruction was given in error.”) The State petitioned this Court for discretionary review, which we allowed on 5 December 2018.

2020State v. Collington (Collington II), 259 N.C. App. 127, 141 , 814 S.E.2d 874, 885 (2018) (“[H]ad appellate counsel proffered the arguments under Pakulski, defendant would have secured a new trial upon simply demonstrating that the acting in concert instruction was given in error.”) The State petitioned this Court for discretionary review, which we allowed on 5 December 2018.

2020More specifically, defendant asserted that the trial court had committed plain error by “allow[ing] the jury to find [defendant] guilty of possession of a firearm by a convicted felon for Featherstone’s possession of the Glock pistol which [defendant] testified Sapp handed to Featherstone at the McDonald’s later that night after whatever had occurred at the recording studio.” In its initial, unpublished decision in this case, the Court of Appeals determined that, in light of defendant’s concession that there was sufficient evidence to permit the jury to find defendant guilty of possession of a

2020More specifically, defendant asserted that the trial court had committed plain error by “allow[ing] the jury to find [defendant] guilty of possession of a firearm by a convicted felon for Featherstone’s possession of the Glock pistol which [defendant] testified Sapp handed to Featherstone at the McDonald’s later that night after whatever had occurred at the recording studio.” In its initial, unpublished decision in this case, the Court of Appeals determined that, in light of defendant’s concession that there was sufficient evidence to permit the jury to find defendant guilty of possession of a

2020See also State v. Golphin, 352 N.C. 364 , 456-58, 533 S.E.2d 168 , 228-29 (2000) (finding no error in the trial court’s decision to instruct the jury that it could find that the defendant was guilty of possession of a stolen vehicle on the basis of an acting in concert theory in the course of also allowing the jury to convict the defendant of robbery with a dangerous weapon and first-degree murder in reliance upon the doctrine of acting in concert).

2020See also State v. Golphin, 352 N.C. 364 , 456-58, 533 S.E.2d 168 , 228-29 (2000) (finding no error in the trial court’s decision to instruct the jury that it could find that the defendant was guilty of possession of a stolen vehicle on the basis of an acting in concert theory in the course of also allowing the jury to convict the defendant of robbery with a dangerous weapon and first-degree murder in reliance upon the doctrine of acting in concert).

2020As a threshold matter, I first address the State’s argument that this issue has not been properly preserved for appellate review because, although Molly objected at the charge conference to the acting in concert instruction, Molly “failed to renew the objection” “after the jury charge was completed[.]” However, “[o]ur Supreme Court has held, and we reiterate, that when a party has objected to proposed jury instructions during a charge conference, and the trial court has considered and denied the request, that the party need not repeat its objections after the jury charge is given.” Wilson v. B

2020As a threshold matter, I first address the State’s argument that this issue has not been properly preserved for appellate review because, although Molly objected at the charge conference to the acting in concert instruction, Molly “failed to renew the objection” “after the jury charge was completed[.]” However, “[o]ur Supreme Court has held, and we reiterate, that when a party has objected to proposed jury instructions during a charge conference, and the trial court has considered and denied the request, that the party need not repeat its objections after the jury charge is given.” Wilson v. B

2020In seeking relief from the trial court’s order before the Court of Appeals, the State argued that an acting in concert instruction “has never been held to be improper” in cases like this one and that, even if the delivery of the acting in concert instruction in this case was erroneous, the failure of defendant’s appellate counsel to advance an argument in reliance upon Pakulski did not constitute deficient performance for purposes of the test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984).

2020In seeking relief from the trial court’s order before the Court of Appeals, the State argued that an acting in concert instruction “has never been held to be improper” in cases like this one and that, even if the delivery of the acting in concert instruction in this case was erroneous, the failure of defendant’s appellate counsel to advance an argument in reliance upon Pakulski did not constitute deficient performance for purposes of the test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984).

2018"Under the doctrine of acting in concert, if two or more persons are acting together in pursuance of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuance of the common plan." State v. Barts , 316 N.C. 666 , 688-89, 343 S.E.2d 828 , 843 (1986) ; State v. Williams , 299 N.C. 652 , 656-57, 263 S.E.2d 774 , 777-78 (1980).

2018"Under the doctrine of acting in concert, if two or more persons are acting together in pursuance of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuance of the common plan." State v. Barts , 316 N.C. 666 , 688-89, 343 S.E.2d 828 , 843 (1986) ; State v. Williams , 299 N.C. 652 , 656-57, 263 S.E.2d 774 , 777-78 (1980).

2026The recent possession doctrine requires “exclusive possession” which includes “joint possession of co-conspirators or persons acting in concert in which case the possession of one criminal accomplice would be the possession of all.” Id. at 606 (citation omitted). “[U]nder the doctrine of acting in concert, when two or more persons act together in pursuance of a common plan or purpose, each is guilty of any crime committed by any other in pursuance of the common plan or purpose.” State v. Facyson, 367 N.C. 454 , 459-60 (2014) (cleaned up).

2026See Thompson, 309 N.C. at 422 (holding that the State may introduce evidence of an attempted taking of property of great monetary value as an - 15 - aggravating factor because that evidence is not required to prove the underlying felony larceny offense itself); Facyson, 367 N.C. at 461 (holding that acting-in-concert liability does not preclude applying the aggravating factor for joining with more than one other person, because the factor requires proof beyond the basic acting-in-concert doctrine); State v. Bruton, 344 N.C. 381, 394 (1996) (permitting the use of an aggravating factor where the

2024State v. Fletcher, 354 N.C. 455, 480 (2001).

2003By contrast, in Fletcher, the jury found the defendant guilty of premeditated first-degree murder under circumstances where the jury was not *375 given an instruction on acting in concert. 354 N.C. at 480, 555 S.E.2d at 550 .