               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 386PA16

                              Filed 8 December 2017

STATE OF NORTH CAROLINA

             v.

QUENTON LEE DICK



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 873

(2016), vacating defendant’s conviction after appeal from a judgment entered on 18

June 2015 by Judge Susan E. Bray in Superior Court, Guilford County. Heard in the

Supreme Court on 10 October 2017.


      Joshua H. Stein, Attorney General, by James M. Stanley, Jr., Special Deputy
      Attorney General, for the State-appellant.

      Mark Montgomery for defendant-appellee.


      MORGAN, Justice.



 I.   Background and Procedural History


      In this appeal we consider whether a jury was properly instructed on the

theory that Quenton Lee Dick (defendant) committed a first-degree sexual offense by

being aided and abetted by another individual in the commission of the sexual act.

The Court of Appeals concluded that there was not sufficient evidence to submit the
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                                       Opinion of the Court



instruction to the jury.       We hold that, based upon our enunciated test used to

establish the principle of aiding and abetting, the evidence was sufficient to allow the

jury to be instructed on the theory of aiding and abetting.


       The State presented evidence at trial tending to show that at around 2:00 a.m.

on 4 December 2013, E.M.1 was studying in her apartment for an examination and

conversing with three of her friends, all of whom were college students. Those in the

apartment included E.M.’s roommate. They were all getting ready for bed when there

was a knock at the door, and E.M.’s roommate answered it because she was expecting

a guest. The person at the door asked for someone who did not live in the apartment.


      A short time later, there was another knock on the door and when the door was

opened, a man wearing a bandanna on his face walked into the kitchen of the

apartment, looked around, and walked back out. E.M. and her friends were under

the impression that someone was playing a trick on them. E.M.’s roommate tried to

push the door to close it, but four men prevented her from doing so by charging into

the apartment. All of the men were wearing bandannas across their faces and hoods

on their heads. At least two of the men had handguns. Three of the men headed to

the back of the apartment and started to ransack it. The last man stayed in the living

room with E.M. and the other students. E.M. and her friends were ordered to go into




      1   We use initials to protect the victim’s privacy.

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their rooms and bring back everything they had.          The men took several items,

including cell phones, laptop computers, and a television.


      Next, the four college students were ordered to sit back down on the couch in

the living room. The intruders duct taped the students’ hands behind their backs.

The man in the living room ordered E.M. to get up from the couch and walk into one

of the bedrooms in the back of the apartment. Three of the men were walking in the

bedroom.   E.M. attempted to step into the bathroom that was connected to the

bedroom, but one of the men grabbed her and told her to go into the bedroom. E.M.

started crying and begged the men not to rape her. One of the men replied, “Shut up,

bitch. We’re not going to rape you.” In response, E.M. “kept crying and saying stuff.”

One of the men responded, “Well, I see we’re going to have to . . . tape her mouth

because she won’t shut up.” He then taped shut E.M.’s mouth. Another of the men

left the room at that time in order to tape shut the other students’ mouths.


      E.M. had been left in the bedroom with two of the intruders, one of whom was

defendant. The two men took off E.M.’s pants, lifted her shirt and began touching

her inappropriately.   A third man stepped into the room and said something

indicating “that maybe they ha[d] to go or they need[ed] to hurry up or something.”

All of the men then departed, leaving E.M. in the bedroom alone; however, defendant

quickly returned to the room, ripped off the tape from E.M.’s mouth, and forced her

to perform oral sex on him.     E.M. could see a gun in defendant’s pocket while


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performing the sexual act. During this time, E.M.’s shirt had been lifted and she was

not wearing any underwear. E.M.’s hands were still duct taped behind her back.

The sexual act lasted about thirty seconds. Defendant ejaculated on E.M.’s face and

shirt. Subsequently, he ran out of the apartment.


      E.M. and her friends went to her neighbor’s apartment and called the police.

Law enforcement officers arrived and questioned the victims. They then took E.M.

to a local hospital, where she completed a rape kit. Defendant’s DNA profile was later

determined to match the semen on E.M.’s shirt.


      On 3 February 2014, defendant was indicted on four counts of first-degree

kidnapping, one count of first-degree burglary and four counts of robbery with a

dangerous weapon. Defendant was also charged with conspiracy to commit robbery

with a firearm, but that charge was subsequently dismissed by the State. On 2 June

2014, defendant was indicted on one count of first-degree sexual offense. After all of

the evidence was presented at trial, defendant moved to dismiss all charges for

insufficiency of the evidence. These motions were denied. A jury returned unanimous

verdicts of guilty on all the charges. The four robbery with a firearm convictions and

the four kidnapping convictions were consolidated for judgment, with defendant

being sentenced to four consecutive terms of 83 to 112 months each followed by a term

of 276 to 392 months on the sexual offense charge and another consecutive term of 73




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to 100 months on the first-degree burglary conviction. Defendant gave written notice

of appeal.


      At the Court of Appeals, defendant argued that the trial court erred by

improperly instructing the jury on the first-degree sexual offense charge. The jury

was given a disjunctive instruction at trial, allowing it to find defendant guilty of

first-degree sexual offense if defendant “employed a dangerous and deadly weapon or

was aided and abetted by another person or persons” when he committed the sexual

act. In considering this issue and ultimately finding error by the trial court, the Court

of Appeals reasoned that when a jury is given instructions at trial indicating that a

defendant can be found guilty of a crime under two separate theories, there must be

sufficient evidence to find such a defendant guilty under both theories. State v. Dick,

___ N.C. App. ___, 791 S.E.2d 873, 2016 WL 5746395 (2016) (unpublished). The Court

of Appeals noted in the instant case that defendant did not dispute that there was

sufficient evidence to properly allow the jury to consider whether he had employed a

dangerous or deadly weapon in the commission of the sexual offense, Dick, 2016 WL

5746395, at *3; on the other hand, however, the Court of Appeals held that there was

not sufficient evidence presented that defendant was aided or abetted by another

individual during the act giving rise to defendant’s first-degree sexual offense

conviction, id. at *4.2 This latter determination by the Court of Appeals regarding


      2 The Court of Appeals went on to conclude that there was error which prejudiced
defendant based on our precedent in State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987);

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the lack of sufficient evidence of defendant’s guilt on the theory of aiding and abetting,

which was a part of the disjunctive jury instruction, is erroneous and must be

reversed.


II.   Standard of Review

      Defendant contends that the trial court erred in submitting the disjunctive

instruction to the jury because the evidence was insufficient for the jury to determine

that defendant was aided or abetted when he committed the sexual act. “Substantial

evidence is that amount of relevant evidence necessary to persuade a rational juror

to accept a conclusion.” Scott, 356 N.C. at 597, 573 S.E.2d at 869. We have held that

there must be sufficient evidence to find a defendant guilty under either theory of

criminal culpability for the disjunctive instruction to be properly given to the jury.

State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) (holding that

insufficient evidence regarding one theory submitted to the jury, when prejudicial,

was reversible error requiring new trial). In our view, in the case sub judice the

evidence was sufficient to instruct the jury to consider both whether defendant

employed a dangerous or deadly weapon in the commission of the sexual offense, as

well as whether defendant was aided or abetted by another individual during the act

giving rise to defendant’s first-degree sexual offense conviction.            There was



however, we do not reach this issue for analysis because it is our determination that there
was sufficient evidence presented by the State to allow the jury to find that defendant was
aided or abetted by another individual when he committed the sexual offense.

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substantial evidence to support each of these two theories of defendant’s guilt of this

offense, thus legitimizing the disjunctive jury instruction.


III.   Analysis


       The trial court did not err in giving the jury the disjunctive instruction at issue

because the evidence was sufficient to find defendant guilty of first-degree sexual

offense under the theory that he employed a dangerous or deadly weapon in the

commission of the sexual act as well as under the theory that he was aided and

abetted by one or more persons in the perpetration of the crime.

       Defendant was charged with first-degree sexual offense. A first-degree sexual

offense is committed when

             the person engages in a sexual act with another person by
             force and against the will of the other person, and does any
             of the following:
             1) Employs or displays a dangerous or deadly weapon or
                 an article which the other person reasonably believes to
                 be a dangerous or deadly weapon.
             2) Inflicts serious personal injury upon the victim or
                 another person.
             3) The person commits the offense aided and abetted by
                 one or more other persons.

N.C.G.S. § 14-27.26 (2015). In State v. Bell we reasoned that:

                    Two lines of cases have developed regarding the use
             of disjunctive jury instructions. State v. Diaz [,317 N.C.
             545, 346 S.E.2d 488 (1986), and its progeny] stand[ ] for the
             proposition that “a disjunctive instruction, which allows
             the jury to find a defendant guilty if he commits either of
             two underlying acts, either of which is in itself a separate
             offense, is fatally ambiguous because it is impossible to

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             determine whether the jury unanimously found that the
             defendant committed one particular offense.” In such
             cases, the focus is on the conduct of the defendant.

                    In contrast, this Court has recognized a second line
             of cases [stemming from State v. Hartness, 326 N.C. 561,
             391 S.E.2d 177 (1990),] standing for the proposition that “if
             the trial court merely instructs the jury disjunctively as to
             various alternative acts which will establish an element of
             the offense, the requirement of unanimity is satisfied.” In
             this type of case, the focus is on the intent or purpose of the
             defendant instead of his conduct.

359 N.C. 1, 29-30, 603 S.E.2d 93, 112-13 (2004) (citing and quoting State v. Lyons,

330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991)), cert. denied, 544 U.S. 1052 (2005).

The current case is consistent with the Hartness line of cases. Whether defendant

employed or displayed a dangerous or deadly weapon during the commission of the

offense, or whether he was aided and abetted by at least one other individual, are

different acts that will establish an element of first-degree sexual offense.     The

properness of the disjunctive jury instruction involved in the present case depends on

whether there is sufficient evidence to instruct the jury on the theory that defendant

was aided and abetted when he committed the sexual act. The Court of Appeals

opined that a person is guilty of aiding or abetting another when he is

             actually or constructively present at the scene of the crime
             and . . . aids, advises, counsels, instigates or encourages
             another to commit the offense. Even though not actually
             present during the commission of the crime, a person may
             be an aider or abettor if he shares the criminal intent of the
             perpetrator and if, during the commission of the crime, he
             is in a position to render any necessary aid to the
             perpetrator.


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                                  Opinion of the Court



Dick, 2016 2016 WL 5746395, at *3 (alteration in original) (quoting State v. Barnette,

304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981) (citations omitted)).

      In stating this test, the Court of Appeals cited this Court’s decision in Barnette.

That case applied the then-existing case law regarding aiding and abetting a crime.

However, in State v. Bond, we recognized that

             [a]lthough several of our cases decided before 1981 state
             that actual or constructive presence is required to prove a
             crime under an aiding and abetting theory, this is no longer
             required. Our legislature abolished all distinctions
             between accessories before the fact and principals in the
             commission of felonies by enacting N.C.G.S. § 14–5.2,
             effective 1 July 1981. Thus, accessories before the fact, who
             do not actually commit the crime, and indeed may not have
             been present, can be convicted of first-degree murder
             under a theory of aiding and abetting. A showing of
             defendant’s presence or lack thereof is no longer required.

345 N.C. 1, 23-24, 478 S.E.2d 163, 174 (1996), cert. denied, 521 U.S. 1124 (1997).

Thus, distinctions between individuals actually or constructively present at the scene

and those not present at the scene are now irrelevant with respect to aiding and

abetting. The abolition of this distinction is further demonstrated by our decision in

State v. Francis in which we upheld jury instructions concerning aiding and abetting

advising the jury that it must

             find three things in order to convict the defendant of first-
             degree murder on [the] theory [of aiding and abetting]: (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.


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341 N.C. 156, 459 S.E.2d 269 (1995) (citing State v. Allen, 339 N.C. 545, 453 S.E.2d

150 (1995), abrogated by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997)).

Noticeably missing from this instruction is any reference to the defendant’s location

when the crime was committed. A year later in Bond, we concluded that giving a jury

the pattern jury instructions with respect to aiding and abetting and its “accordance

with the requirements delineated in Francis was sufficient.” 345 N.C. at 24, 478

S.E.2d at 175.   Consistent with this evolution in the law pursuant to the 1981

legislative enactment, this Court stated in Gaines, that “to the extent our cases

decided after N.C.G.S. § 14–5.2 became applicable suggest that actual or constructive

presence is necessary to prove a crime under an aiding and abetting theory, these

cases are no longer authoritative on this issue.” 345 N.C. at 676, 483 S.E.2d at 414

(citations omitted), cert. denied 522 U.S. 900 (1997). Two years later, we reiterated

the aiding and abetting test approved in Francis and reemphasized in Gaines. State

v. Goode 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999). Accordingly, we now apply

this same three-prong test to the case at bar because it aligns with the legislature’s

intent to remove any required analysis concerning a person’s proximity to the alleged

criminal incident.

      In the instant case, the elements needed to satisfy the principle of aiding or

abetting are met. Although the other individuals left the room before defendant

committed the sexual act, there is sufficient evidence for the jury to conclude that the

individuals aided and abetted defendant. E.M. testified that “two of [the men], I


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                                 Opinion of the Court



think, began to tape us up behind our backs with duct tape.” Three of the men worked

together to separate E.M. from the rest of the group. One of the men grabbed E.M.

and ordered her to come back into the bedroom when she instead tried to go into the

adjoining bathroom.       In the bedroom defendant and another individual

inappropriately groped E.M., removed all of her clothes below her waist, and fondled

her body. The majority of these acts were executed by defendant, along with others.

The acts of taping shut E.M.’s mouth, taping her hands behind her back, moving her

to the bedroom, removing her clothing, and inappropriately touching E.M. equate to

encouragement, instigation, and aid which collectively readily meet the standards of

the aiding and abetting test that we articulated in Bond and its progeny. Thus, there

is evidence here tending to show that defendant committed the crime of first-degree

sexual offense while other individuals instigated, encouraged and aided him. By

joining defendant in unclothing and immobilizing E.M., while performing a series of

overt acts that created an atmosphere to subvert the will of E.M., others are deemed

to have contributed to the commission of the crime.


      Defendant argues that there is insufficient evidence for a jury to find that he

was aided or abetted by another during the commission of the sexual act because he

was the only individual in the room with the victim when the incident occurred,

thereby demonstrating that no one was in a position to render any necessary aid to

him. While the trial evidence regarding the precise physical locations of the other

men who accompanied defendant is inexact during the time that defendant

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committed the sexual act, the evidence nonetheless supports the conclusion that there

was sufficient evidence for a jury to find that defendant was aided and abetted by at

least one other individual, since under the Bond rationale, neither actual nor

constructive presence was required to prove a crime under the theory of aiding and

abetting based upon legislation that became effective the same year this Court issued

our opinion in Barnette.


      In view of our holding in Bond and its succeeding line of cases, the other men

aided, instigated or encouraged defendant to commit this offense. We reach this

conclusion in light of the evidence adduced at trial, and find it unnecessary to address

the other men’s physical proximity to defendant or the victim at the time of the

offense in order to prove defendant’s guilt under the theory of aiding and abetting.

Due to the sufficiency of the evidence as to defendant being one who employed or

displayed a dangerous or deadly weapon, and that he was aided and abetted by one

or more other persons in the commission of the crime of first-degree sexual offense,

the trial court gave a proper disjunctive jury instruction.


      Therefore, the Court of Appeals erroneously reversed the trial court by

vacating defendant’s conviction for this offense and remanding the matter for a new

trial on this charge. Accordingly, this Court reverses the judgment of the Court of

Appeals and instructs that court to reinstate the trial court’s judgment and

defendant’s conviction for first-degree sexual offense.


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            Opinion of the Court



REVERSED.




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