An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
Appellate Procedure.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-4

                             Filed: 15 September 2015

New Hanover County, No. 13 CRS 055297

STATE OF NORTH CAROLINA

            v.

CALVIN DEMETRIUS THOMPSON, Defendant.


      Appeal by defendant from judgments entered 31 July 2014 by Judge Arnold O.

Jones in New Hanover County Superior Court. Heard in the Court of Appeals 11

August 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Belinda A.
      Smith, for the State.

      Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, for
      defendant-appellant.


      BRYANT, Judge.


      Where the evidence taken in the light most favorable to the State was such

that a jury could reasonably find that defendant aided and abetted in a burglary,

defendant’s motion to dismiss for insufficiency of the evidence was properly denied.

Where the trial court conducted a Rule 403 balancing test and found that a Facebook
                                  STATE V THOMPSON

                                   Opinion of the Court



posting by defendant was more probative than prejudicial, the trial court did not

abuse its discretion in the admission of that evidence.

      On 12 August 2013, defendant Calvin Demetrius Thompson was indicted on

charges of second-degree burglary, felony larceny, possession of stolen goods, injury

to real property, the resist, delay, or obstruct of an officer, and driving while license

revoked. A superseding indictment for the same charges was entered 9 September

2013. The charges came on for trial during the 28 July 2014 criminal session of

Superior Court, the Honorable Arnold O. Jones, Judge presiding. At trial, the State’s

evidence tended to show the following.

      During the evening and early morning hours of 23—24 June 2013, Tyson

Amick and his fiancé observed a car driving slowly down the street with its headlights

turned off. After observing the car, a Jeep Cherokee, make a third slow pass down

the road and stop in front of a neighbor’s, Mr. Spangler’s, house, Amick called 911 to

report the activity as suspicious. After the car stopped in front of Spangler’s house,

Amick watched people exit the car. As the car slowly drove away down the street,

Amick “noticed what seemed to be activity coming from the interior of the residence

[of Spangler’s house].” After a few minutes, Amick watched five individuals exit the

house and walk past his house; Amick described the individuals as “carrying several

objects,” including a flat-screen TV and “garbage bags that had been filled with




                                          -2-
                                  STATE V THOMPSON

                                   Opinion of the Court



stuff[.]” The car returned and stopped in front of Amick’s house where it picked up

the individuals and the items before slowly driving off.

       As the car drove away, Amick flagged down a police car responding to his

earlier 911 call. After pointing out the departing car’s taillights to the police officer,

Officer Creech, Amick stated that Officer Creech “immediately drove away” in pursuit

of the car.

       Officer Creech testified that after he caught up to the car Amick had pointed

out to him, it took “about seven blocks” for the car to stop. Upon stopping the car,

Officer Creech observed six occupants in the vehicle, including an individual laying

down on top of a large flat-screen TV in the back of the vehicle. Three individuals

sitting in the car’s back seats were observed holding a small TV and a black bag. The

driver of the car identified himself as Aaron Edge and told Officer Creech that he did

not have a driver’s license. Additional police officers arrived to assist Officer Creech

at this time, and one officer identified the driver of the car as defendant. A computer

search by Officer Creech determined that Aaron Edge was a fictitious name and that

defendant was in fact the driver of the car.

       While Officer Creech processed defendant and the other individuals in the car,

Corporal Willet went to Spangler’s house and determined that the house had been

broken into. Officer Creech placed defendant and the other occupants of the car under




                                          -3-
                                   STATE V THOMPSON

                                    Opinion of the Court



arrest. Corporal Willet later contacted Mr. Spangler and confirmed that the items

seized from defendant’s car had been taken from Spangler’s house.

      Prior to the trial commencing, the State dismissed the charge of driving while

license revoked. At the close of the State’s evidence, defendant moved to dismiss all

charges; the trial court granted the motion for the charge of resisting arrest only.

      On 31 July 2014, a jury convicted defendant of second-degree burglary, felony

larceny, possession of stolen goods, and injury to real property.        Defendant was

sentenced to a term of 15 to 27 months for second-degree burglary, a consecutive term

of 9 to 20 months for felony larceny, and a term of 120 days for injury to real property.

Judgment was arrested for possession of stolen goods. Defendant appeals.

                                _____________________________

      Defendant raises three issues on appeal as to whether the trial court erred (I)

in denying defendant’s motion to dismiss, (II) in allowing the prosecutor to cross-

examine defendant about a Facebook posting, and (III) in failing to dismiss

defendant’s charges because of a faulty indictment.

                                                 I.

      Defendant argues that the trial court erred in denying his motion to dismiss.

We disagree.

                      Upon defendant's motion for dismissal, the question
               for the Court is whether there is substantial evidence (1) of
               each essential element of the offense charged, or of a lesser
               offense included therein, and (2) of defendant's being the


                                           -4-
                                   STATE V THOMPSON

                                    Opinion of the Court



               perpetrator of such offense. If so, the motion is properly
               denied. Substantial evidence is relevant evidence that a
               reasonable mind might accept as adequate to support a
               conclusion. We view the evidence in the light most
               favorable to the State, giving the State the benefit of all
               reasonable inferences. Contradictions and discrepancies do
               not warrant dismissal of the case but are for the jury to
               resolve.

State v. Parlee, 209 N.C. App. 144, 146, 703 S.E.2d 866, 869 (2011) (citations and

quotations omitted).

      Defendant contends the trial court erred in denying his motion to dismiss the

charges of second-degree burglary, felony larceny, and injury to real property for

insufficiency of the evidence, “even upon the theory of aiding and abetting.”

      To pursue a charge based on the theory of aiding and abetting, the State must

present evidence “(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.” State v. Marion, ___ N.C. App. ___,

___, 756 S.E.2d 61, 68 (2014) (quoting State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163,

175 (1996)).

               A person may be guilty as an aider and abettor if that
               person . . . accompanies the actual perpetrator to the
               vicinity of the offense and, with the knowledge of the actual
               perpetrator, remains in that vicinity for the purpose of
               aiding and abetting in the offense and sufficiently close to
               the scene of the offense to render aid in its commission, if
               needed, or to provide a means by which the actual


                                           -5-
                                 STATE V THOMPSON

                                  Opinion of the Court



             perpetrator may get away from the scene upon the
             completion of the offense.

State v. Pryor, 59 N.C. App. 1, 7, 295 S.E.2d 610, 615 (1982) (citation and quotation

omitted). Indeed,

             [i]t is not necessary for any of those elements to be proven
             to the trial court beyond a reasonable doubt before the trial
             court may instruct on aiding and abetting; there needs only
             to be evidence supporting the instructions, and the jury is
             to determine whether the State has proved the elements
             beyond a reasonable doubt.

State v. Baskin, 190 N.C. App. 102, 111—12, 660 S.E.2d 566, 573—74 (2008) (citation

omitted).

      The State’s evidence against defendant included the testimony of eyewitness

Amick who stated that defendant drove his car slowly, with the headlights turned off,

up and down the street multiple times, and that the individuals who burglarized

Spangler’s house were let out of defendant’s car in front of Spangler’s house and then

picked up by defendant (while carrying items taken from the Spangler residence) a

short time later. Defendant contends his trial testimony, as well as that of a co-

defendant, Michael Vann, showed no express agreement by defendant to commit

robbery; however, notwithstanding defendant’s evidence to the contrary, the State’s

evidence was sufficient for a jury to find defendant committed the offenses charged.

See, e.g., State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (“In reviewing

challenges to the sufficiency of evidence, we must view the evidence in the light most



                                         -6-
                                  STATE V THOMPSON

                                   Opinion of the Court



favorable to the State, giving the State the benefit of all reasonable inferences.

Contradictions and discrepancies do not warrant dismissal of the case but are for the

jury to resolve. . . . [T]he defendant's evidence should be disregarded unless it is

favorable to the State or does not conflict with the State's evidence. The defendant's

evidence that does not conflict may be used to explain or clarify the evidence offered

by the State.” (citations and quotation omitted)). Therefore, regardless, “[w]hen

ruling on a motion to dismiss, the trial court should be concerned only about whether

the evidence is sufficient for jury consideration, not about the weight of the evidence.”

Id.; see also Parlee, 209 N.C. App. at 146, 703 S.E.2d at 869 (in reviewing a motion to

dismiss for insufficiency of the evidence, only evidence favorable to the State is to be

considered). As such, defendant’s argument is overruled.

                                           II.

      Defendant contends the trial court erred in allowing the prosecutor to cross-

examine him about a Facebook posting. We disagree.

      Pursuant to Rule 403 of the North Carolina Rules of Evidence, “[a]lthough

relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2013). We review a trial




                                          -7-
                                     STATE V THOMPSON

                                      Opinion of the Court



court's Rule 403 ruling for abuse of discretion. State v. Beckelheimer, 366 N.C. 127,

130, 726 S.E.2d 156, 159 (2012).

       Defendant testified on his own behalf during the trial. On cross-examination,

the State, as part of its case against defendant as a knowing participant in the

robbery, sought to question defendant about a posting on defendant’s Facebook page.

Defendant’s posting was as follows: “Snitching at an all time high I just got back from

court YO N****Z SNITCHING. . . .!!!!”1 Defendant objected and sought to suppress

evidence regarding the posting. During voir dire, the State argued that the posting

was relevant because it was posted on the same date as defendant’s earlier court date

and referenced a conversation defendant had that day with a co-defendant, Michael

Vann, who had agreed to testify as a witness for the State in the instant case. The

trial court, after hearing the arguments of counsel, denied defendant’s motion to

suppress the posting, noting that:

              The jury can hear it, find what they want to, they are the
              finders of fact.

              ...

              I’m going to find that it is relevant pursuant to Rule 401.
              That in weighing the prejudicial effect or any potential
              prejudicial effect as to relevance through the factors
              contained in [Rule] 403 that it is admissible for the course
              of this trial, for the purposes of this trial.



       1  We note that in the transcript, defendant’s posting was read by defendant into court as
“Snitchin is at an all time high. I just got back from court. Yo, n****** are snitchin.”

                                              -8-
                                  STATE V THOMPSON

                                   Opinion of the Court



Because the trial court conducted a balancing test under Rule 403 and determined

that the probative value of defendant’s Facebook posting outweighed its prejudicial

effect, we cannot say that the trial court abused its discretion in permitting the State

to cross-examine defendant about this posting. See State v. Washington, 141 N.C.

App. 354, 367, 540 S.E.2d 388, 397—98 (2000) (the trial court did not abuse its

discretion in admitting evidence where the court conducted a balancing test under

Rule 403 and found that the probative value of the evidence outweighed its prejudicial

effect); see also State v. Spellman, No. COA13-1192, 2014 N.C. App. LEXIS 689 (Apr.

8, 2014) (finding no abuse of discretion by the trial court in admitting into evidence

the defendant’s “About Me” statement on her Facebook page).

      Defendant further argues that even if the Facebook posting was relevant

evidence, “the relevancy was substantially outweighed by prejudice to [him].”

Defendant’s argument must fail for, as discussed above, the trial court did not abuse

its discretion in conducting a Rule 403 balancing test and concluding that the posting

was admissible. Moreover, although defendant contends the posting “had nothing to

do with whether he was driving the car as an aider and abettor[,]” the evidence

concerning the posting—that defendant made this posting the same day that he spoke

to one of his co-defendants in court and that co-defendant admitted to defendant that

he would be testifying as part of a plea deal with the State—supported the trial court’s




                                          -9-
                                    STATE V THOMPSON

                                    Opinion of the Court



determination that the posting was both relevant and more probative than prejudicial

to the instant matter. Accordingly, defendant’s argument is overruled.

                                            III.

      Defendant argues that the trial court erred in failing to dismiss defendant’s

charges because of a faulty indictment, and that although this issue was never raised

before the trial court, we should review it based on plain error.           Specifically,

defendant contends the charges should have been dismissed “because the indictment

failed to charge [him] with aiding and abetting said crimes.” We decline to do so, for

it is well-established by our Courts that “plain error review in North Carolina is . . .

limited to instructional and evidentiary error.” State v. Lawrence, 365 N.C. 506, 516,

723 S.E.2d 326, 333 (2012) (citation omitted). Therefore, defendant is not entitled to

plain error review of this issue.

      We further note that defendant, in his brief to this Court, requests that we “re-

visit [our] position on the exclusion of aiding and abetting in an indictment[,]” arguing

that his indictment was insufficient because it failed to charge defendant with aiding

and abetting. Defendant’s request must be denied, for it is well-established by this

Court that “[b]ecause aiding and abetting is not a substantive offense but just a

theory of criminal liability, allegations of aiding and abetting are not required in an

indictment[.]” Baskin, 190 N.C. App. at 110, 660 S.E.2d at 573 (quoting State v.




                                           - 10 -
                               STATE V THOMPSON

                               Opinion of the Court



Madry, 140 N.C. App. 600, 602, 537 S.E.2d 827, 829 (2000)). Defendant’s argument

is, therefore, dismissed.

      NO ERROR.

      Judges STEPHENS and DIETZ concur.

      Report per Rule 30(e).




                                      - 11 -
