Criminal Practice Second-Degree Murder – Acting in Concert — Sentencing – Aggravating Factor – Uncharged Conspiracy

State v. Facyson (Lawyers Weekly No. 13-07-0551, 13 pp.) (Robert C. Hunter, J.) Appealed from Durham County Superior Court (H. W. Hight, J.) N.C. App.  

Holding: The state’s evidence showed that defendant and others borrowed a red Ford, shot the victim from the Ford, and tried to clean up the Ford afterwards. Furthermore, a bullet casing consistent with the bullets found at the scene of the murder was found on the red Ford, and particles consistent with gunshot residue were found on all four of the individuals arrested at the red Ford, including one particle on defendant’s pants. Thus, the state presented substantial circumstantial evidence of each element of second-degree murder in that defendant either acted alone or with others in the shooting and killing of the victim. The trial court did not err by denying defendant’s motion to dismiss. We find no error in defendant’s conviction of second-degree murder. We remand for a new sentencing hearing. The state presented sufficient evidence for the jury to determine that it was defendant’s actions alone that resulted in the victim’s death, including the particle consistent with gunshot residue that was found on defendant’s clothing. Therefore, it was possible for defendant to be convicted of second-degree murder without the necessity of the element of acting in concert. However, the state also presented sufficient evidence to allow the jury to conclude that defendant acted with others in committing the crime. Yet, the verdict sheet did not require the jury to indicate the theory on which it found defendant guilty. We cannot speculate as to the basis of the jury’s verdict, and we must resolve the ambiguity in favor of defendant by assuming that the aggravated sentence imposed was based on the same evidence necessary to establish an element of the underlying offense. Accordingly, we must reverse the judgment entered and remand for a new sentencing hearing without the use of the aggravating factor.