Criminal Practice – Assault With a Deadly Weapon – Criminal Conspiracy – Motion to Dismiss

State v. Sanders. (Lawyers Weekly No. 10-07-1100, 9 pp.) (Robert N. Hunter Jr., J.) Appealed from Carteret County Superior Court (Phyllis M. Gorham, J.) N.C. App. Click here for the full text of the opinion.

Holding: Because there was substantial evidence before the trial court that the defendant conspired to assault the neighbor of his adversary with a deadly weapon with the intent to kill him or inflict serious injury, the trial court did not err in denying the defendant’s motion to dismiss.

Facts

Norman and his girlfriend Gibbs were at Sanderlin’s house. Salter called asking to fight Norman over Gibbs’ affections. Norman agreed.

Salter had several friends with him, so Norman asked Sanders, Sanders’ father and Gillikin to join him in the fight.

When they arrived at the Lester residence, where the fight was to occur, the Lesters asked the men to leave. The men started to leave, but when a neighbor’s son yelled at Sanders’ father, Sanders’ father jumped out of the truck and struck the neighbor’s son.

The neighbor came to the rescue of his son, whereupon Sanders and Gillikin joined the fray. Sanders struck the neighbor with a wooden dowel rod several times, fracturing his skull.

Sanders was charged with assault with a deadly weapon with intent to kill inflicting serious injury and conspiracy to commit assault with a deadly weapon with intent to kill inflicting serious injury.

The jury returned verdicts of guilty as to the lesser charges of assault with a deadly weapon inflicting serious injury and conspiracy to commit assault inflicting serious injury. The two charges were consolidated and the trial court imposed an active sentence of 24 to 38 months.

Sanders appealed.

Analysis

Sanders challenged the trial court’s denial of his motion to dismiss the conspiracy charge.

Sanders argued that there was no evidence of a conspiracy to assault the neighbor, and that the evidence produced at trial related to a conspiracy to fight Salter.

A criminal conspiracy is an agreement, express or implied, between two or more persons, to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. The spontaneity of the plan does not belie the conspiracy.

Upon hearing the neighbor’s son chastise the group for their rowdy behavior, Sanders’ father charged toward the neighbor’s son and loudly asked if he wanted a war. Sanders and Gillikin were heard to respond, “We’ll give you a war,” and “let’s go” or “let’s go get them.”

Sanders then exited the truck and joined the fight. Sanders briefly broke away from the fight, stated, “I’ll finish him off,” retrieved a wooden dowel rod from his truck and returned to strike the neighbor in the head.

These acts when viewed individually may not evidence a conspiracy; but when viewed collectively, they provide evidence that the men formed an implied agreement, however impulsively, to assault the neighbor. The jury could conclude that Sanders understood the objective of the conspiracy and agreed to it.

We find there was substantial evidence before the trial court that Sanders conspired to assault the neighbor with a deadly weapon with intent to kill or to inflict serious injury. Accordingly, the trial court did not err in denying Sanders’ motion to dismiss.

No error.