State v. Marr , 113 N.C. App. 774 ( 1994 )

WELLS, Judge.

Defendant argues, inter alia, that the trial court erred by refusing to grant his motion to dismiss the charges of accessory before the fact to first degree murder, first degree burglary, armed robbery, and first degree arson.

Defendant contends that there was insufficient evidence that he instigated, counseled or procured principals Smith and Jaynes to commit armed robbery, burglary, murder or arson to let those charges go to the jury. He argues that these crimes are entirely different from the planned crimes of stealing property from Paul Acker’s shop and mobile home, and thus there was no causal connection between his actions and the actions of the principals in committing the crimes as required by State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987).

When a defendant moves for dismissal, the court must determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser included offense, and (b) of defendant’s being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980).

Defendant was indicted for wrongs allegedly committed by him as an accessory. In order to convict the defendant of being an accessory before the fact the State was required to prove (1) that defendant counseled, procured, commanded, encouraged, or aided another to commit the offense; (2) defendant was not present when the crime was committed; and (3) the principal committed the crime. See generally State v. Davis, supra, (murder); State v. Fletcher, 66 N.C. App. 36, 310 S.E.2d 787, disc. rev. denied, 310 N.C. 627, 315 S.E.2d 693 (1984). With respect to the crimes of murder, burglary, and arson in this case, Smith’s testimony tends to exonerate defendant. Smith testified that the only purpose for going to the Acker property on 11 October 1990 was to steal items from the mobile home and the shop, and that there was “no murder planned, no arson, no robbery. . . To the extent which Smith’s testimony tended to exculpate defendant, the State is bound by it. See generally State v. Horton, 275 N.C. 651, 170 S.E.2d 466, cert. denied, 398 U.S. 959, 26 L.Ed.2d 545, reh’g denied, 400 U.S. 857, 27 L.Ed.2d 97 (1970).

The inquiry does not end there, however. With respect to the guilt of accused accessories, our appellate courts have held that accessories may be held accountable not only for the crimes they counsel or procure, but also for any other crimes committed by the principal which are the natural or probable consequence of the common purpose. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988); State v. Hewitt, 33 N.C. App. 168, 234 S.E.2d 468 (1977). That, of course, is a standard more easily stated than applied. For example, in a civil case, one court has defined “natural or probable” consequences as follows: “Those consequences that a person by prudent human foresight can anticipate as likely to result from an act, because they happen so frequently from the commission of such an act that in the field of human experience they may be expected to happen again.” Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, cert. denied, 127 So.2d 441 (1961).

However, we find the dispositive standard to be somewhat at variance with the “natural and probable” consequence standard relied upon by the State. The requirement for conviction of an accessory before the fact is that the State must prove beyond a reasonable doubt that the action or statements of the defendant somehow caused or contributed to the actions of the principal. See State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987). Generally, there is not a great deal of dispute over whether an accessory’s words or acts caused or contributed to the actions of the principal. See State v. Sams, 317 N.C. 230, 345 S.E.2d 179 (1986); State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982). Rather, the factual issue is more likely to focus on whether the accesory “counseled, procured, or commanded the principal at all." (Emphasis added.) State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976); cert. denied, 429 U.S. 1093, 51 L.Ed.2d 539 (1977). See also State v. Davis, supra.

Our review of the accessory cases indicates that where crimes of intent are involved, the accused accessory typically did or said something which would tend to show that he at least anticipated that the plan he encouraged might lead to the “consequential” crime in question. The reasoning of our Supreme Court in the cases we have cited above, however, clearly indicates under our law that once an accessory before the fact has counseled, procured or planned a criminal event, he must answer for all crimes flowing from the accomplished event.

We have carefully reviewed defendant’s other assignment of error and find no merit in his argument.

No error.

Chief Judge ARNOLD and Judge EAGLES concur.