Opinion
No. COA05-193
Filed 21 March 2006 This case not for publication
Appeal by defendant from judgments entered 26 June 2003 by Judge Susan C. Taylor in Union County Superior Court. Heard in the Court of Appeals 18 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jane Ammons Gilchrist, for the State. Parish Cooke, by James R. Parish, for defendant-appellant.
Union County Nos. 99 CRS 17923; 99 CRS 17924; 00 CRS 3985.
Four people, including defendant Andrea Deneen Crowder, were involved in the armed robbery of a store, during which the store's owner was shot and seriously injured. Defendant was convicted of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and assault with a deadly weapon causing serious injury. On appeal, defendant primarily challenges the sufficiency of the evidence to prove (1) that she acted in concert with respect to the robbery and assault charges and (2) that she conspired to commit robbery with a dangerous weapon. We conclude that defendant's multiple statements to the police provided ample evidence to support her convictions. Because, however, the trial court imposed an aggravated sentence based on facts not found by a jury, we hold defendant is entitled to a new sentencing hearing under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).
Facts
The State's evidence at trial tended to show the following. Defendant had been going to Todd's Grocery, a store owned by Hal Quincy Rape, Jr., to play the video poker machines multiple times a week for several months prior to 13 November 1999. On 13 November 1999, Rape saw defendant playing video poker during the day and then again later in the afternoon, when she returned with James Kilgo, Jerry King, and Jesse McLendon.
Rape watched the four talk and play poker for about an hour, at which point McLendon walked up to Rape, removed a sawed-off shotgun from the sleeve of his jacket, and pointed it at Rape. McLendon demanded the store's money box. After Rape told McLendon where the box was, McLendon waited a moment, then lowered the barrel of his gun slightly and shot Rape in the left knee. Rape fell to the floor.
Kilgo gestured towards the money box while King ran out the front door. McLendon then picked up the money box and walked out of the store with defendant. Kilgo, who stayed in the store, expressed shock that McLendon had shot Rape and called 911. King had run to a nearby restaurant, where he also called 911 before returning to the store. Kilgo and King then rendered basic emergency assistance to Rape. Ultimately, however, doctors were unable to repair Rape's leg, and it was amputated. Defendant spoke to the police on four separate occasions regarding the events at Todd's Grocery. Although defendant initially claimed she had nothing to do with the robbery, the extent of her involvement increased with each statement. In the end, defendant reported that she was with Kilgo and one of his friends, known as "Ta Ha," when they began discussing robbing either Todd's Grocery or a similar store nearby called Avondale Grocery. Defendant explained:
It was me, [Kilgo], and Ta Ha, in Ta Ha's black Honda Accord. We were going back and forth between Avondale and Todd's Grocery, [Rape's] place. [Kilgo] and Ta Ha started talking about robbing either Todd's Grocery or Avondale's poker places. [Kilgo] was talking about being out of work and not having any money. So at first it was only the three of us who were involved in talking about the robbery.
Ta Ha told Kilgo and defendant that he knew someone — McLendon — who would be willing to actually do the robbery.
The three went to a laundromat where Ta Ha talked to McLendon privately. From there, they went to an apartment complex. McLendon joined them, carrying a bag that he said had a gun in it. All four then returned to Kilgo's house and discussed the robbery. According to defendant, "Ta Ha said that we all needed to wear a ski mask. That's what they all wanted us to do but I refused to wear a ski mask. I knew that [Rape] knew me from playing poker machines down there. I told them that [Rape] would never suspect me of being part of the robbery." At that point, Ta Ha had to return home because he was on parole and had a curfew. Defendant stated that it was decided they would take two cars to Todd's Grocery. According to defendant, McLendon "talked about taking his gun with him because he didn't know what [Rape] might have around down there." Defendant claimed, however, that "[t]he plan was still just to go down to [Todd's Grocery] and [McLendon] was just supposed to grab the money box and run. Nobody talked about shooting anybody." Defendant repeated: "I swear that all we had planned to do was for [McLendon] to grab the money box and run. We, me Deneen, [Kilgo], Ta Ha, and [McLendon]."
Defendant was indicted for robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, and conspiracy to commit robbery with a dangerous weapon. At trial, defendant testified on her own behalf and claimed that as they drove toward Todd's Grocery to perform the robbery, she asked several times to be let out of the car because she "didn't want to be in the middle of that." Defendant said that the men would not let her out and threatened that if she "uttered a word," she would be killed. She testified that she had wanted to warn Rape but because she felt her life was in danger, "all [she] could do was sit there. . . ."
The jury convicted defendant of each charge. During sentencing as to the robbery charge, the trial court found as an aggravating factor that Rape's injury was permanent and debilitating and as a mitigating factor that defendant had a support system in the community. After concluding that the aggravating factor outweighed the mitigating factor, the court imposed an aggravated sentence of 146 to 185 months imprisonment on the charge of robbery with a dangerous weapon, followed by two additional consecutive presumptive range sentences of 46 to 65 months imprisonment each for the conspiracy and assault charges.
Defendant's Motions to Dismiss
Defendant first contends that the trial court erred by denying her motion to dismiss the charges for insufficient evidence. A motion to dismiss for insufficiency of the evidence should be denied if there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. Id. at 597, 573 S.E.2d at 869.
On review of a denial of a motion to dismiss, this Court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Id. at 596, 573 S.E.2d at 869. Contradictions and discrepancies do not warrant dismissal of the case, but rather are for the jury to resolve. Id.
A. Conspiracy to Commit Robbery with a Dangerous Weapon
A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. State v. Lamb, 342 N.C. 151, 155, 463 S.E.2d 189, 191 (1995). Under North Carolina law "'no overt act is necessary to complete the crime of conspiracy. As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed'" State v. Gibbs, 335 N.C. 1, 47, 436 S.E.2d 321, 347 (1993) (quoting State v. Bindyke, 288 N.C. 608, 616, 220 S.E.2d 521, 526 (1975)), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881, 114 S. Ct. 2767 (1994).
Defendant's repeated admissions that she was part of the planning of the robbery are sufficient to establish the required agreement. Although defendant argues that her testimony "affirmatively denies entering into any agreement," it is well-settled that, unless it is favorable to the prosecution, a defendant's evidence is not to be considered when reviewing the sufficiency of the evidence. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994).
Defendant contends that even if there was an agreement to commit a robbery, there was no agreement to use a dangerous weapon. Given, however, defendant's admissions regarding her knowledge that McLendon had a gun, her awareness that the plan was for McLendon to snatch the money box, and McLendon's statement to her that he was going to bring the gun to the robbery because he did not know "what [Rape] might have," a reasonable juror could conclude that defendant agreed both to the robbery and to McLendon's use of a gun in that robbery. As this Court explained in State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d 176, 185-86 (internal citations omitted), appeal dismissed and disc. review denied, 359 N.C. 194, 607 S.E.2d 658-59 (2004), when addressing a similar argument, "it was not essential for the parties to expressly agree to use a dangerous weapon prior to the robbery in order to submit a charge of conspiracy to commit robbery with a dangerous weapon to the jury. Rather, it was only essential that there be evidence that the parties had a mutual, implied understanding to commit robbery with a dangerous weapon." See also State v. Goldberg, 261 N.C. 181, 202, 134 S.E.2d 334, 348 ("'It is not essential that each conspirator have knowledge of the details of the conspiracy or of the exact part to be performed by the other conspirators in execution thereof; nor is it necessary that the details be completely worked out in advance to bring a given act within the scope of the general plan.'" (quoting 15 C.J.S., Conspiracy, p. 998)), cert. denied, 377 U.S. 978, 12 L. Ed. 2d 747, 84 S. Ct. 1884 (1964), overruled on other grounds by News Observer Publ'g Co. v. State, 312 N.C. 276, 322 S.E.2d 133 (1984). We hold, therefore, that the evidence was sufficient to submit the conspiracy to commit robbery with a dangerous weapon charge to the jury.
We note that, since defendant was not charged with conspiracy to commit assault, the State was not required to show any agreement that McLendon shoot Rape.
B. Robbery with a Dangerous Weapon and Assault with a Deadly Weapon Causing Serious Injury
Defendant next contends that the State presented insufficient evidence to demonstrate that she was acting in concert with McLendon and, therefore, guilty of robbery with a dangerous weapon and assault with a deadly weapon causing serious injury. For a defendant to be convicted of the underlying crime on acting in concert grounds, the defendant must: (1) be "'present at the scene of the crime,'" and (2) "'act together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.'" State v. Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73, 78 (1999) (quoting State v. Moore, 87 N.C. App. 156, 159, 360 S.E.2d 293, 295-96 (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 664 (1988)), appeal dismissed and disc. review denied, 351 N.C. 365, 542 S.E.2d 651 (2000). "[I]f two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan. This is true even where the other person does all the acts necessary to commit the crime." State v. Abraham, 338 N.C. 315, 328-29, 451 S.E.2d 131, 137 (1994) (internal citations and quotation marks omitted).
Since defendant admitted she was present at the scene of the crime, the remaining issue is whether the State presented sufficient evidence that defendant acted together with McLendon pursuant to a common plan or purpose. The State's evidence showed that defendant participated in the planning of the robbery, went with others to "scope these poker houses out to see which one [McLendon] was going to rob," and accompanied the group to locate McLendon before the robbery. After the robbery, Ta Ha directed defendant "to go down to Willow Oaks Apartments and find out how much money [McLendon] got." Defendant then went with Kilgo's girlfriend to bring McLendon back to Ta Ha. A reasonable juror could find, based on this conduct, that defendant was acting in concert with McLendon and the others. See Johnson, 164 N.C. App. at 12-13, 595 S.E.2d at 183 (evidence sufficient to show defendant acted in concert to commit robbery with a dangerous weapon when he and two co-defendants planned to rob someone by having the unarmed defendant frighten victims, but the co-defendant instead menaced the victims with a shotgun, while defendant took the victims' money); State v. Jones, 157 N.C. App. 110, 115-16, 577 S.E.2d 676, 680 (2003) (evidence sufficient to show the defendant acted in concert to commit robbery with a dangerous weapon when he and two co-defendants planned to rob a convenience store, the defendant was told prior to the robbery one of the co-defendants had a gun, the defendant walked around the store prior to the robbery, and the defendant waited in the car as the "getaway driver").
Defendant nevertheless argues that, even if she acted in concert to commit the robbery, she cannot be found guilty of the assault because she did not know McLendon was going to shoot Rape. The doctrine of acting in concert, however, permits a jury to find a defendant guilty not only for the crime originally intended, but also for any other crime committed in pursuit of the common purpose. See State v. Thomas, 325 N.C. 583, 595, 386 S.E.2d 555, 561 (1989) ("Under the doctrine of acting in concert when two or more persons act together in pursuance of a common plan or purpose, each is guilty of any crime committed by any other in pursuance of the common plan or purpose." (emphasis added)); State v. Holadia, 149 N.C. App. 248, 258, 561 S.E.2d 514, 521-22 (concluding that defendant, who originally intended to commit robbery, could be found guilty of assault with a deadly weapon as well where he acted in concert with another as to the robbery, but did not intend that the victim be shot), disc. review denied, 355 N.C. 497, 562 S.E.2d 432 (2002). Since defendant has not argued that the assault was not committed in pursuit of the intended robbery — and we can see no basis for such a contention — defendant could be convicted of the assault. Accordingly, this assignment of error is overruled.
The Trial Court's Failure to Instruct on Withdrawal
Defendant next contends the trial court erred in refusing to instruct the jury regarding defendant's claim she withdrew from the conspiracy. At the charge conference, counsel for defendant stated:
There's one [more instruction] that I don't — I'm not sure. I thought in looking at the instructions I saw — and I thought maybe I was going back to it. Somewhere in the back of my mind there is an instruction on conspiracy or acting in concert, when one withdraws before. Do you see anything on that? I may have to look tonight on that.
The trial court stated it would consider the issue if defendant presented something to the court. At the end of the charge conference, defense counsel again noted that he would "look for an instruction on withdrawal" overnight. Defense counsel, however, never made any other request for an instruction on withdrawal from a conspiracy.
Since there is no pattern jury instruction on the defense of withdrawal, a request for such an instruction must be in writing. See State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997) (holding that when a defendant requests special jury instructions not provided in the pattern instructions, the request must be submitted in writing to the trial judge at or before the charge conference), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647, 118 S. Ct. 704 (1998). Since defendant did not submit a written request, defendant has failed to preserve this issue for appellate review. N.C.R. App. P. 10(b)(1).
Nevertheless, our Supreme Court "has held on numerous occasions that it is the duty of the trial court to instruct the jury on all of the substantive features of a case. This is a duty which arises notwithstanding the absence of a request by one of the parties for a particular instruction. All defenses arising from the evidence presented during the trial constitute substantive features of a case and therefore warrant the trial court's instruction thereon." State v. Loftin, 322 N.C. 375, 381, 368 S.E.2d 613, 617 (1988) (internal citations omitted). When, however, a defendant fails to specifically request an otherwise warranted instruction, the trial court's failure to give the instruction is reviewed only for plain error. Id. at 381-82, 368 S.E.2d at 617.
In this case, defendant has neither relied upon plain error in her assignment of error nor argued it in her brief. Our Supreme Court has held that, in those circumstances, a defendant is "not entitled to plain error review of [the] issue." State v. Dennison, 359 N.C. 312, 313, 608 S.E.2d 756, 757 (2005). This assignment of error is, therefore, overruled.
The Trial Court's Aiding and Abetting Instruction
Defendant also assigns error to the trial court's instruction to the jury on aiding and abetting, arguing that this instruction was not requested by either the State or the defense and was unsupported by the evidence. The day after counsel for defendant had indicated he would look for an instruction on withdrawal, defense counsel, instead of submitting a withdrawal instruction, requested that the trial court give paragraph five of the North Carolina Pattern Instructions on aiding and abetting. That portion of the aiding and abetting instruction provides:
A person is not guilty of a crime merely because he is present at the scene, even though he may silently approve of the crime or secretly intend to assist in its commission. To be guilty he must aid or actively encourage the person committing the crime, or in some way communicate to this person his intention to assist in its commission.
N.C.P.I. — Crim. 202.20, ¶ 5 (1998).
The State objected, and the trial judge declined to give only one paragraph of the aiding and abetting instruction. When the trial judge then asked the parties how they felt about her giving the entire aiding and abetting instruction, the State again objected on the ground that its theory of the case had been acting in concert and not aiding and abetting. Defense counsel agreed that the State's case had been premised on acting in concert, but stated that he felt paragraph five of the aiding and abetting instruction nevertheless represented "the law of North Carolina." The judge then repeated that she would not give that single paragraph alone as an instruction. At the close of the charge conference, after the jury had returned, the judge called counsel up for an unrecorded bench conference, after which the judge whispered to the court reporter that she would give the entire aiding and abetting instruction. Defendant did not thereafter object. Indeed, after instructing the jury, the judge specifically inquired whether defense counsel had "any specific requests for corrections or additions." Defense counsel responded that he did not.
We conclude that defendant failed to preserve this issue for appellate review. N.C.R. App. P. 10(b)(1). It was defendant who initially sought to use a portion of the challenged aiding and abetting instruction, and we cannot determine whether defendant, in the unrecorded bench conference, concurred with or objected to the full instruction. After the court made its final determination to give the full instruction, defendant did not object. Indeed, even after the court finished instructing the jury with the challenged instruction, defendant did not express any objection. We may not, therefore, review this issue. State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994) ("Because defendant did not timely object to the trial court's instructions when the trial court, outside the presence of the jury, inquired as to whether either party had any objections with regard to the jury charge, defendant did not properly preserve this assignment of error for appellate review. . . ."). Accordingly, this assignment of error is overruled.
The Trial Court's Instruction on Flight
As a final challenge to the jury instructions, defendant assigns error to the trial court's decision to instruct the jury on defendant's alleged flight. "A trial court may properly instruct on flight where there is some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged. However, mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension." State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001) (internal citations and quotation marks omitted).
In this case, when the evidence is viewed in the light most favorable to the State, the State presented evidence that defendant did more than merely leave the scene of the crime. The State's evidence indicated that defendant knew Rape and his children personally. Indeed, it was only because Rape "would never suspect [her] of being part of the robbery" that defendant refused to wear a ski mask. After the shooting, however, defendant did not attempt to render any kind of emergency assistance to Rape — despite the fact that both King and Kilgo did — and instead defendant "took off running." While defendant contends that she in fact returned after the shooting, Rape testified that he never saw defendant again.
Similarly, the defendant in State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791, 122 S. Ct. 2605 (2002), after shooting his wife and her father, "immediately entered his car and quickly drove away from the crime scene without rendering any assistance to the victims or seeking to obtain medical aid for them." Id. at 425, 555 S.E.2d at 591. Further, he made no effort to flag down a police officer he passed while leaving the scene of the shooting. The Supreme Court held that an instruction on flight was proper and that this evidence, viewed in the light most favorable to the State, was evidence that "defendant did more than merely leave the scene of the crime." Id.
Defendant's conduct in this case is consistent with the conduct at issue in Anthony. Defendant's choice to run away without making any attempt to obtain medical assistance for Rape, knowing that Rape was badly injured, supports the State's position that defendant took affirmative "'steps to avoid apprehension'" and not be present when law enforcement arrived. Lloyd, 354 N.C. at 119, 552 S.E.2d at 625-26 (quoting State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991)). See also State v. Roberts, 135 N.C. App. 690, 698, 522 S.E.2d 130, 135 (1999) (flight instruction was proper where, after breaking and entering, defendant left the home after being confronted by a resident), appeal dismissed and disc. review denied, 351 N.C. 367, 543 S.E.2d 142 (2000). The mere fact that defendant, of her own initiative, later sought out law enforcement and provided them with her version of events does not necessarily render a flight instruction improper. See Lloyd, 354 N.C. at 119-20, 552 S.E.2d at 626 (flight instruction was proper when defendant quickly left crime scene without providing medical assistance to the victim, even though the defendant soon thereafter called the police to turn himself in). Accordingly, this assignment of error is overruled.
Defendant's Aggravated Sentence
Finally, defendant contends the trial court violated her Sixth Amendment right to a trial by jury, under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), when the court based her sentence for the robbery conviction on aggravating factors not found by a jury beyond a reasonable doubt. We agree.
Our Supreme Court addressed the impact of Blakely in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." Id. at 437, 615 S.E.2d at 265 (citing Blakely, 542 U.S. at 303-04, 159 L. Ed. 2d at 413-14, 124 S. Ct. at 2537; Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362 (2000)). The failure to do so constitutes structural error and is reversible per se. Id. at 449, 615 S.E.2d at 272.
Because the trial court in this case imposed a sentence in the aggravated range for the robbery with a dangerous weapon conviction based on an aggravating factor not found by a jury, we must vacate that sentence and remand for a new sentencing hearing in accordance with Blakely and Allen. Since the sentences for the two remaining convictions — conspiracy and assault with a deadly weapon causing serious injury — were in the presumptive range, those sentences are not in error.
No error in part; remanded for a new sentencing hearing in 99 CRS 17923.
Judges WYNN and McGEE concur.
Report per Rule 30(e).