State v. Dick, 370 N.C. 305

Around 2:00 a.m., four armed, bandanna-covered men forced entry into an apartment, restrained four students with duct tape, and ransacked the unit.
Victim E.M. was separated, taken to a bedroom, had her clothes removed below the waist, was bound and gagged, and was sexually assaulted; defendant forced her to perform oral sex and had a gun in his pocket; defendant’s DNA matched semen found on victim’s shirt.
Defendant was indicted and tried on multiple counts including first-degree sexual offense; a jury convicted him on all counts, and the trial court imposed consecutive sentences including a long term for the sexual-offense conviction.
The trial court gave a disjunctive jury instruction for first-degree sexual offense (either defendant employed a dangerous weapon or was aided and abetted by others).
On appeal the Court of Appeals vacated the sexual-offense conviction, holding insufficient evidence supported the aiding-and-abetting theory in the disjunctive instruction.
The North Carolina Supreme Court granted discretionary review and reversed the Court of Appeals, reinstating the conviction, holding the evidence was sufficient to submit the aiding-and-abetting theory to the jury.

Issue	State's Argument	Dick's Argument	Held
Whether evidence was sufficient to instruct the jury that defendant was aided and abetted in committing first-degree sexual offense	Evidence of coordinated actions (taping, separating victim, undressing, prior groping) showed others instigated/encouraged and contributed to the offense, satisfying aiding-and-abetting test	Insufficient because defendant was alone with the victim during the sexual act, so others could not have been in a position to render aid; no presence meant no aiding/abetting	Held: Sufficient — under North Carolina precedent presence is not required; the others’ prior acts and coordinated conduct supported aiding-and-abetting submission
Whether the disjunctive jury instruction was proper when one theory might lack evidentiary support	A disjunctive instruction is proper only if there is sufficient evidence to support each alternative theory submitted; here both theories were supported	Sought reversal arguing the aiding-and-abetting alternative lacked support, making the disjunctive instruction prejudicial	Held: Proper — Court found sufficient evidence for both alternatives (weapon and aiding/abetting), so the disjunctive instruction was appropriate and conviction stands

State v. Bell, 359 N.C. 1 (2004) (distinguishes types of disjunctive instructions and unanimity concerns)
State v. Barnette, 304 N.C. 447 (1981) (traditional aiding-and-abetting test emphasizing presence and assistance)
State v. Bond, 345 N.C. 1 (1996) (abolished requirement of actual or constructive presence for aiding and abetting after statutory change)
State v. Francis, 341 N.C. 156 (1995) (formulation of aiding-and-abetting instruction focusing on advising, instigating, encouraging, or aiding)
State v. Gaines, 345 N.C. 647 (1997) (declared pre-1981 presence-based cases no longer authoritative regarding aiding and abetting)
State v. Goode, 350 N.C. 247 (1999) (reaffirmed aiding-and-abetting test and jury instruction approach)