{
  "id": 8901159,
  "name": "STATE OF NORTH CAROLINA v. NATHAN SHAW, Defendant",
  "name_abbreviation": "State v. Shaw",
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    "judges": [
      "Judges HUNTER and THORNBURG concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. NATHAN SHAW, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nDefendant was charged, in proper bills of indictment, with second degree murder and common law robbery. He appeals from judgments imposing active sentences entered upon his convictions by a jury of voluntary manslaughter and common law robbery. We find no error.\nThe State\u2019s evidence at trial tended to show the following: On 3 October 2001, seventeen-year-old defendant Nathan Shaw invited his neighbor, co-defendant Ronnie Duncan, to spend the night at his house. The next morning, defendant invited another neighbor, Adam Mace, over to the house. Mace arrived with a shopping bag containing marijuana, and the three youths smoked marijuana and drank beer together on the porch. Mace placed some of the marijuana from the bag in a vase on defendant\u2019s front porch for safekeeping.\nAfter some time had passed, Mace told Duncan that he owed him some money. When Duncan refused to give Mace any money, a fight ensued, and Duncan placed Mace in a headlock and told him to leave. Duncan then went into the house, prepared a joint of marijuana, and returned outside through the garage.\nWhen Duncan returned, Mace was standing at the garage door and refused to leave. The two youths began fighting again, and Duncan quickly overpowered Mace, hitting him in the face ten to fifteen times. At this point, defendant, who had been present during the entire altercation, pulled out a buck knife belonging to Duncan, and began swinging it randomly around the two fighting youths. Defendant almost stabbed Duncan, at which time Mace grabbed the knife by the blade and took it away from defendant. Mace then started yelling that his hand was bleeding and Duncan stopped assaulting Mace.\nMace then got up, walked out of the garage, and yelled to the others that he would get them both. Upon hearing this, Duncan again attacked Mace, and the two youths began choking each other. After about two minutes, defendant shouted, \u201cKill him. Kill him. Are you going to let him hit you like that?\u201d At this point, Duncan testified that he began to back off, but defendant shouted, \u201cGo ahead and finish the job.\u201d The two youths then began choking each other again and during this altercation, Duncan strangled Mace to death. In his statement to police, defendant stated that when he realized Duncan was going to kill Mace, he decided to take Mace\u2019s stash of marijuana out of the vase on the front porch and put it into a radio in the garage.\nWhen defendant and Duncan realized that Mace was dead, Duncan asked defendant to call the police. Defendant stated, \u201cThey\u2019ll never believe us,\u201d and suggested that they just bury the body on his property. The two youths then proceeded to take Mace\u2019s body approximately 180 yards into the woods behind defendant\u2019s house, where they buried him. As they were burying the body, Duncan retrieved $30 from Mace\u2019s right pocket. Duncan testified that he took $5 and defendant took $25; defendant claimed in his statement that he only took $5 of the money. During the burial, the two youths also concocted a story regarding the last time they saw Mace in case they were questioned by police. They returned to defendant\u2019s house, washed up, and divided the marijuana.\nThe following day, Mace was reported missing by his family. Five days later, after repeated questioning, defendant made a statement to law enforcement officers regarding Mace\u2019s death. He led the officers to Mace\u2019s body; as a result of defendant\u2019s statement to police, they were able to apprehend Duncan, who also confessed. Duncan pleaded guilty to second degree murder and common law robbery and testified for the State at defendant\u2019s trial.\nDefendant neither testified nor offered any evidence. A jury found defendant guilty of voluntary manslaughter because of aiding and abetting and common law robbery, and he was sentenced in the presumptive range for each crime.\nDefendant presents arguments in support of four of the seven assignments of error contained in the record on appeal. His remaining assignments of error are deemed abandoned. N.C. R. App. P. 28(a).\nDefendant first argues that his conviction for aiding and abetting voluntary manslaughter must be vacated because it is not a cognizable offense under North Carolina law. We disagree.\n\u201c[Voluntary manslaughter is an intentional killing without premeditation, deliberation or malice but done in the heat of passion suddenly aroused by adequate provocation or in the exercise of imperfect self-defense where excessive force under the circumstances was used or where the defendant is the aggressor.\u201d State v. Wallace, 309 N.C. 141, 149, 305 S.E.2d 548, 553 (1983). Voluntary manslaughter is typically considered a general intent crime. See State v. McCoy, 122 N.C. App. 482, 485, 470 S.E.2d 542, 544, disc. review denied, 343 N.C. 755, 473 S.E.2d 622 (1996) (citing State v. Clark, 324 N.C. 146, 164, 377 S.E.2d 54, 65 (1989)). But see State v. Rainey, 154 N.C. App. 282, 289, 574 S.E.2d 25, 29, disc. review denied, 356 N.C. 621, 575 S.E.2d 520 (2002) (holding that heat of passion voluntary manslaughter is a specific intent crime).\n\u201cA person who aids or abets another in the commission of a crime is equally guilty with that other person as principal.\u201d State v. Noffsinger, 137 N.C. App. 418, 425, 528 S.E.2d 605, 610 (2000). Instate v. Kendrick, 9 N.C. App. 688, 690, 177 S.E.2d 345, 347 (1970), this Court explained the elements of aiding and abetting as it applies to a bystander who is present at the crime:\nA person aids or abets in the commission of a crime within the meaning of this rule when he shares in the criminal intent of the actual perpetrator [], and renders assistance or encouragement to him in the perpetration of the crime. [] While mere presence cannot constitute aiding and abetting in legal contemplation, a bystander does become a[n aider and abettor] by his presence at the time and place of a crime where he is present to the knowledge of the actual perpetrator for the purpose of assisting, if necessary, in the commission of the crime, and his presence and purpose do, in fact, encourage the actual perpetrator to commit the crime. []\nId.\nDefendant argues that aiding and abetting requires specific intent to commit the underlying crime and since voluntary manslaughter is typically considered a general intent crime, it is legally impossible for one to aid and abet a voluntary manslaughter. Although defendant concedes that North Carolina has long held that an aider and abettor can be liable for voluntary manslaughter, see, e.g., State v. Allison, 200 N.C. 190, 195-96, 156 S.E. 547, 550 (1931); State v. Burton, 119 N.C. App. 625, 635-36, 460 S.E.2d 181, 189 (1995), he argues that our Supreme Court\u2019s holding in State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000) implicitly challenges this principle.\nIn Coble, the Court held that since attempt is a specific intent crime and second degree murder is a general intent crime, it is legally impossible to commit attempted second degree murder because one cannot have specific intent to commit a general intent crime. 351 N.C. at 452, 527 S.E.2d at 48. However, this case is distinguishable from Coble because, unlike attempt, aiding and abetting is not a crime separate and apart from the underlying offense, see Coble, 351 N.C. at 449, 527 S.E.2d at 46, but rather it is a theory upon which a person\u2019s culpability for the underlying offense may be based, see State v. Williams, 299 N.C. 652, 655, 263 S.E.2d 774, 777 (1980) (explaining that a person may be found culpable for an offense if he \u201ceither (1) actually commits the offensef,] or (2) does some act which forms a part thereof, or (3) if he assists in the actual commission of the offense or of any act which forms part thereof, or (4) directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof\u2019) (internal quotation omitted); N.C. Gen. Stat. \u00a7 14-5.2 (2003) (abolishing the distinction between accessories before the fact, principals in the first degree and principals in the second degree, and punishing all parties who previously fell into one of these categories as principals to that crime). Thus, depending upon the type of criminal intent required to consider an offender culpable for the underlying offense, an aider and abetter, like any other principal to an offense, may develop either specific or general intent. See, e.g., State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996) (aiding and abetting first degree murder); State v. Allen, 127 N.C. App. 182, 184, 488 S.E.2d 294, 296 (1997) (aiding and abetting second degree murder); Burton, 119 N.C. App. at 635-36, 460 S.E.2d at 189 (aiding and abetting voluntary manslaughter); State v. Whitaker, 43 N.C. App. 600, 605, 259 S.E.2d 316, 319 (1979) (aiding and abetting involuntary manslaughter). Defendant\u2019s argument to the contrary is overruled.\nIn his next two assignments of error, defendant argues the trial court erred by failing to grant his motion to dismiss the charge of common law robbery because the evidence was insufficient as a matter of law. He also asserts that the lack of evidence regarding the taking of marijuana was so apparent as to make it grossly improper for the prosecutor to argue otherwise.\nThe trial court must grant a defendant\u2019s motion to dismiss if the State fails to present \u201csubstantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). \u201cIn determining the sufficiency of the evidence we consider it in the light most favorable to the State.\u201d Id.\nIn State v. Herring, 322 N.C. 733, 739, 370 S.E.2d 363, 368 (1988), our Supreme Court defined common law robbery as follows:\nCommon law robbery is defined as the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear. The felonious taking element of common law robbery requires a taking with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker.\nId. (internal quotations and citations omitted). As previously discussed, \u201c[a] person who aids or abets another in the commission of a crime is equally guilty with that other person as principal.\u201d State v. Noffsinger, 137 N.C. App. 418, 425, 528 S.E.2d 605, 610 (2000).\nThe State argued, and the indictment alleged, that defendant was culpable for common law robbery based on the taking of both money and marijuana from Mace\u2019s person and presence. Defendant first argues the State failed to present sufficient evidence that defendant intended to aid, encourage, or assist Duncan in committing common law robbery with regard to the taking of the money.\nDuncan testified to the following regarding the taking of the money:\nQ. How about any other items that belonged to [Mr. Mace]? Did you all take anything else?\nA. $30\nQ. And where did that come from?\nA. [Mr. Mace]\u2019s right pocket.\nQ. When did you all find that money?\nA. When we threw the clothes in the hole.\nQ. And who was it that found it?\nA. I did.\nQ. And what did y\u2019all do with the money?\nA. [Defendant] kept $25 and I kept $5.\nOur Supreme Court has stated that \u201cintent is a mental attitude seldom provable by direct evidence\u201d and thus, \u201cmust ordinarily be proved by circumstances from which it may be inferred.\u201d Herring, 322 N.C. at 740, 370 S.E.2d at 368. When the entire record is viewed in the light most favorable to the State, the evidence is sufficient to create an inference that defendant intended to aid, encourage, or assist Duncan in taking money from Mace\u2019s person.\nDefendant next argues the evidence was insufficient to show that he took marijuana from the person or presence of Mace. With regard to common law robbery, our court has stated that \u201c[t]he word \u2018presence\u2019 must be interpreted broadly... with due consideration given to the element of the crime that requires the property to be taken by violence or by putting [the victim] in fear.\u201d State v. Styles, 93 N.C. App. 596, 605, 379 S.E.2d 255, 261 (1989) (internal quotations omitted). In Styles, this Court found that money taken from a chair near the victim\u2019s bed after she had been forcibly raped and assaulted was sufficient to show a taking from the presence of the victim. Id.\nIn this case, the evidence showed that Mace placed marijuana into a vase on defendant\u2019s porch for safekeeping while he visited defendant\u2019s house. While Mace was being assaulted by Duncan, defendant took the marijuana and moved it into a hiding place in the garage. This evidence is equally sufficient \u201cto show a taking from the presence of the victim through violence . . . .\u201d Id.; see also State v. Clemmons, 35 N.C. App. 192, 196, 241 S.E.2d 116, 118-19, cert. denied, 294 N.C. 737, 244 S.E.2d 155 (1978) (where force or intimidation caused victim to flee the premises, property taken from the premises immediately after the victim\u2019s departure was deemed taken from the victim\u2019s presence).\nDefendant argues that even if this evidence was sufficient to show a taking from the presence of the victim, it was based in part upon a statement made by defendant while in police custody and that such statements in non-capital cases are not competent to support a conviction unless there is \u201csubstantial independent evidence tending to establish its trustworthiness.\u201d State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985). The record, however, contains substantial corroborating evidence to support the essential elements embraced in the defendant\u2019s statement. See id. Thus, aspects of defendant\u2019s statement may be used to support defendant\u2019s conviction for common law robbery, and defendant\u2019s assignment of error to the contrary is overruled.\nHaving determined that there was sufficient evidence to support defendant\u2019s conviction of common law robbery based on both the taking of Mace\u2019s money and marijuana, we need not address defendant\u2019s final argument that it was grossly improper for the prosecutor to argue that the jury could convict defendant of common law robbery based solely on the taking of marijuana. Defendant\u2019s final assignment of error is overruled.\nNo error.\nJudges HUNTER and THORNBURG concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Roy A. Cooper, III, Attorney General, by Douglas W. Corkhill, Assistant Attorney General, for the State.",
      "Rudolf, Maher, Widenhouse & Fialko, by Andrew G. Schopler, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. NATHAN SHAW, Defendant\nNo. COA03-917\n(Filed 15 June 2004)\n1. Aiding and Abetting\u2014 voluntary manslaughter \u2014 intent\nDefendant could properly be convicted for aiding and abetting voluntary manslaughter even though defendant argues that aiding and abetting requires specific intent to commit the underlying crime whereas voluntary manslaughter is a general intent crime, because: (1) defendant concedes that North Carolina has long held that an aider and abettor can be liable for voluntary manslaughter; (2) aiding and abetting is not a crime separate and apart from the underlying offense, but rather it is a theory upon which a person\u2019s culpability for the underlying offense may be based; and (3) depending upon the type of criminal intent required to consider an offender culpable for the underlying offense, an aider and abetter, like any other principal to an offense, may develop either specific or general intent.\n2. Robbery\u2014 common law \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of common law robbery which was based on the taking of both money and marijuana from the victim\u2019s person and presence, because: (1) viewed in the light most favorable to the State, the evidence is sufficient to create an inference that defendant intended to aid, encourage, or assist his coparticipant in taking money from the victim\u2019s person; (2) the evidence showed the victim placed marijuana into a vase on defendant\u2019s porch for safekeeping while he visited defendant\u2019s house, and defendant took the marijuana and moved it into a hiding place in the garage while the victim was being assaulted by a coparticipant; and (3) even though defendant made the statement about the taking from the presence of the victim while defendant was in police custody, there was substantial corroborating evidence to support the essential elements embraced in defendant\u2019s statement.\nAppeal by defendant from judgments entered 31 October 2002 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 26 April 2004.\nRoy A. Cooper, III, Attorney General, by Douglas W. Corkhill, Assistant Attorney General, for the State.\nRudolf, Maher, Widenhouse & Fialko, by Andrew G. Schopler, for defendant-appellant."
  },
  "file_name": "0723-01",
  "first_page_order": 755,
  "last_page_order": 762
}