Criminal Practice – Conspiracy – Foiled Attempt – Kidnapping & Robbery

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State v. Lawrence. (Lawyers Weekly No. 11-07-0227, 28 pp.) (Robert N. Hunter Jr., J.) Appealed from Hoke County Superior Court. (Douglas B. Sasser, J.) N.C. App. Click here for the full text of the opinion.

Holding: Even though the arrival of police scared the conspirators away from their first attempt to kidnap and rob the victim, and even though the conspirators made some changes before their second attempt to kidnap and rob the victim, there was still only one conspiracy.

We reverse one of defendant’s two conspiracy convictions. Defendant is entitled to a new trial on the charge of conspiracy to commit armed robbery. We find no error in defendant’s convictions of two counts of attempted kidnapping and two counts of attempted breaking and entering.

Defendant and several others planned to kidnap the girlfriend of a drug dealer, force her back into her house and rob her at gunpoint. Defendant and co-conspirator McQueen hid in the woods near the victim’s home. They ran away when they saw police chasing co-conspirator King.

The group tried to execute their plot again the next day. Defendant and McQueen waited in the woods, where they were accosted by an armed neighbor. Defendant and McQueen fled.

Defendant was arrested in Mississippi four months later.

Attempted Kidnapping

Defendant suggests that an overt act sufficient to support a charge of attempted kidnapping would, at a minimum, require defendant to have been in the presence of his intended victim. We find no support for this proposition.

An overt act must be an act beyond mere preparation — that is, the act must stand either as the first or some subsequent step in the direct movement towards the commission of the offense after the preparations are made.

The record reveals that defendant’s intent was to intercept Charlise Curtis at gunpoint, force her into her home, bind her with zip ties, threaten to burn her with gasoline, and steal any money and drugs in the residence. The record is replete with details of the preparations made by defendant and his co-conspirators: stealing get-away cars, and acquiring cell phones, jump suits, masks, zip ties, gasoline and guns in order to effect the robbery and kidnapping.

Assuming arguendo that these acts were no more than mere preparations, defendant subsequently hid in the woods behind the home of his intended victim, waiting for her to appear, fleeing only upon the arrival of law enforcement and armed neighbors. We conclude this act of lying in wait was an act beyond mere preparation and thus an overt act for the purposes of the attempted crimes.

Consequently, there was substantial evidence to support the charges of attempted kidnapping, the trial did not err in denying defendant’s motion to dismiss.

Defendant also argues that the restraint he intended to use on his victim was inherent to the intended robbery and thus not a separate and distinct crime. We disagree.

Testimony elicited at trial established that defendant’s plans on Aug. 29 and 30, 2008, were not only to intercept Curtis outside of her home and force her back into the house at gunpoint, but also to bind her hands with zip ties so that she could not move, and threaten to douse her with gasoline if she would not cooperate.

These additional acts of restraint by force and by threat provided substantial evidence that defendant’s intended actions would have not only exposed Curtis to greater danger than that inherent in the armed robbery itself, but also subjected her to the kind of danger and abuse the kidnapping statute was designed to prevent. Therefore, we conclude the trial court did not err in failing to dismiss the two attempted kidnapping charges.

Conspiracy to Commit Armed Robbery

Defendant asserts that the state’s evidence was sufficient to allege only one conspiracy for the armed robbery of Curtis; having failed to achieve the objective of the conspiracy on the first attempt, defendant and his accomplices returned the next day to continue their efforts. Therefore, defendant argues, the constitutional protections from double jeopardy bar the state from charging him with multiple indictments for this single conspiracy. We agree.

The group’s objective on each attempt was the same, to rob Curtis, and the participants involved in each attempt were the same. The time interval between the two attempts was approximately 36 hours.

Additionally, defendant’s co-conspirator testified that on the second attempt the group did not agree to a new plan: “The next day rolls around, so we [sic] trying to look for [defendant] … cause we [sic] trying to go for this same plan again, trying to’ … do the same thing again.”

Testimony also revealed that while defendant’s co-conspirators considered robbing a different victim, they did so as a back-up plan in case the robbery of Curtis was unsuccessful.

The evidence supports only a single conspiracy for the robbery of Curtis with a dangerous weapon and the trial court erred in denying defendant’s motion to dismiss as to one of the two charges of conspiracy.

The trial court in the present case did not permit the jury to find a single conspiracy based on the state’s two indictments. However, the jury found defendant guilty on both counts of conspiracy, which is tantamount in this case to finding him guilty of the single larger conspiracy presented by the evidence.

The state presented evidence that the conspiracy began on Aug. 29, 2008, and continued through Aug. 30, 2008. The indictment in 08 CRS 52088 alleged that defendant entered into a conspiracy to commit robbery with a dangerous weapon on Aug. 29, 2008, while the indictment in 08 CRS 52092 alleged that a conspiracy was formed on Aug. 30, 2008. Thus, the earlier of the conspiracy convictions should stand.

The trial court erred in denying defendant’s motion to dismiss the indictment for the Aug. 30, 2008 conspiracy. Accordingly, we reverse defendant’s conviction on 08 CRS 52092; there was no error in denying defendant’s motion to dismiss for 08 CRS 52088.

Attempted Armed Robbery

The acts of lying in wait, on both the Aug. 29 and 30, 2008, were acts beyond mere preparation and thus overt acts for the purposes of the attempted crimes. Consequently, there was substantial evidence to support the charges of attempted robbery with a dangerous weapon, and it was not error for the trial court to deny defendant’s motion to dismiss.

Attempted Breaking & Entering

Defendant contends the evidence failed to show he and his co-conspirators entered the property at Curtis’ residence and thus they could not have attempted to enter her residence. We disagree.

The evidence tended to show that defendant had the specific intent of breaking and entering Curtis’ home for the purpose of committing an armed robbery. Defendant’s co-conspirator testified that defendant’s role in the conspiracy was to be the “muscle.”

On both attempts, Aug. 29 and 30, 2008, the plan was to intercept Curtis outside of her home, force her back inside, and rob her once she was restrained inside the home. If necessary, defendant was to kick in the door of the home to gain entry.

Thus, there was substantial evidence to support each element of both attempted breaking and entering indictments, and the trial court did not err by denying defendant’s motion to dismiss.

Jury Instruction on Flight

Co-conspirator King testified that during the first robbery attempt, defendant and McQueen fled from a deputy sheriff as he approached defendant hiding in the woods behind Curtis’ home — “cause they see what’s going on now.”

During the second attempt, an armed neighbor confronted the two men as they waited behind the Curtis residence. As the neighbor held the two men at gunpoint and called 911, the men fled.

Additionally, a detective with the Hoke County Sheriff’s Department testified that upon learning of defendant’s name and address, he canvassed the neighborhood informing residents that he was looking for defendant. On Jan. 8, 2009, defendant was arrested by U.S. Marshals in Lee County, Miss.

We conclude this evidence, viewed in the light most favorable to the state, was sufficient to support the theory that defendant fled the scene in order to avoid apprehension by law enforcement officers. Accordingly, the trial court did not err by instructing the jury on the law of flight.

Jury Instruction on Conspiracy to Commit Armed Robbery

Finally, defendant contends the trial court committed plain error when instructing the jury on conspiracy to commit robbery with a dangerous weapon by failing to properly state all of the elements of the crime. We agree.

In both the initial charge and when the jury requested re-instruction during deliberations, the trial court failed to inform the jury that armed robbery requires that the defendant use the weapon to threaten or endanger the life to the victim. Even though the trial court properly explained this element in its instruction on the separate charges of attempted robbery with a firearm, we are not persuaded this is sufficient to correct the omission from the instruction on conspiracy to commit robbery with a dangerous weapon.

No error in part, reversed and remanded in part, new trial in part, and remanded for re-sentencing.