State v. Clemmons ( 1990 )

396 S.E.2d 616 (1990) 100 N.C. App. 286

STATE of North Carolina
v.
Jeffery V. CLEMMONS, Defendant-Appellant.

No. 8914SC1332.

Court of Appeals of North Carolina.

September 18, 1990.

Attorney Gen. Lacy H. Thornburg by Assistant Atty. Gen. William P. Hart, for the State.

Loflin & Loflin by Thomas F. Loflin, III, Durham, for defendant-appellant.

ARNOLD, Judge.

In his first assignment of error, defendant contends the trial court erred in refusing to quash two of the three bills of indictment as being duplicitous of a single offense. We do not agree.

The first indictment charges defendant with solicitation of obstruction of justice in the case of State v. Friemark. "The gravamen of the offense of solicitation to commit a felony lies in counseling, enticing, or inducing another to commit a crime." State v. Tyner, 50 N.C.App. 206, 207, 272 S.E.2d 626, 627 (1980), disc. review denied, 302 N.C. 633, 280 S.E.2d 451 (1981). Between 16 and 18 November 1988, defendant requested that Butler speak with the District Attorney and get the case dismissed. Defendant told Butler he would make some money for doing so. Accordingly, defendant's act of requesting that Butler get the Friemark case dismissed constituted the complete offense of solicitation.

The second indictment charges defendant with attempt to commit obstruction of justice in the Friemark case. On 21 November defendant paid Butler six hundred dollars to have the case dismissed. "Attempt to commit a felony ... involves an intent to commit the felony indicated and an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense." Tyner, 50 N.C. App. at 207, 272 S.E.2d at 627. Attempt, unlike solicitation, requires an overt act. "In our view, solicitation to commit a felony and attempt to commit a felony are two separate and distinct offenses. The crime of solicitation, unlike attempt, does not involve an overt act toward the commission of the underlying felony, as the crime of solicitation is complete with the mere act of `enticing or inducing.'" Id.

The third indictment charges defendant with solicitation of obstruction of justice in future cases involving Butler as a witness for the State arising from Butler's position as Loss Prevention Manager. This solicitation made on 21 November differs from the solicitation of 16-18 November both in time and intent. Defendant sought to establish a system of referrals from Butler of wealthy individuals he charged with shoplifting or larceny, and then seek dismissals in return for payment of money.

Each indictment specifically alleges three separate and distinct criminal offenses. The trial court correctly refused to quash two of the three indictments as duplicitous.

Defendant next assigns error to the trial court's refusal to quash or dismiss the third indictment because it failed as a matter of law to charge any criminal conduct. Defendant asserts that there must be a pending case before one may solicit to obstruct justice. "The offense of solicitation is complete with the act of solicitation, even though there never could be acquiescence in the scheme by the one solicited, State v. Keen, 25 N.C.App. 567, 214 S.E.2d 242 (1975), and even where the solicitation is of no effect." Tyner, 50 N.C.App. at 207, 272 S.E.2d at 627. There is no requirement of a pending case.

Defendant further argues that the third indictment is insufficient as a matter of law to protect him from future double jeopardy. For an indictment to be good, it must lucidly and accurately allege all the offense's essential elements. One purpose of this requirement is to protect a defendant from double jeopardy. State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953).

The indictment charged defendant with soliciting Nick Butler on 21 November to refer wealthy individuals he had charged with larceny or shoplifting to defendant as bondsman, and accept payments of money from defendant as a bribe to have Butler then decline to prosecute these individuals. The indictment is sufficiently lucid and accurate to allow defendant to defend himself against any future charges arising from this particular act of solicitation.

Defendant's third assignment of error is that the trial court erred in refusing to dismiss the second and third indictments at the close of all evidence, as in the case of nonsuit. The State must offer substantial evidence of each element of the charged offense to survive a motion for judgment of nonsuit.

Defendant alleges that Butler never intended to persuade the District Attorney to dismiss the Friemark case and therefore no attempt occurred as the second indictment charges. "[W]hen a defendant has the specific intent to commit a crime and under the circumstances as he reasonably saw them did the acts necessary to consummate the substantive offense, but, because of facts unknown to him essential elements of the substantive offense were lacking, he may be convicted of an attempt to commit the crime." State v. Hageman, 307 N.C. 1, 13, 296 S.E.2d 433, 441 (1982). Defendant delivered six hundred dollars in cash to Butler for the purpose of causing Butler to tell the District Attorney that he had made a mistake and to dismiss the Friemark case.

Defendant contends the State failed to present evidence of a pending case, which defendant asserts is an essential element of the third offense charged. As discussed earlier, the presence of a pending case is not an essential element of solicitation of obstruction of justice.

The State offered substantial evidence of each element of the charged offenses. The trial court correctly refused to grant defendant's motion for nonsuit at the close of the evidence.

Defendant's fourth assignment of error is the trial court lacked subject matter jurisdiction because the indictments charged misdemeanor offenses. Both solicitation to obstruct justice and attempt to obstruct justice are misdemeanors under the common law. Under N.C.Gen.Stat. § 14-3(b) (1979), for a misdemeanor at common law to be raised to a Class H felony, it must be infamous, or done in secret and with malice, or committed with deceit and intent to defraud. If the offense falls within any of these categories, it becomes a Class H felony and is punishable as such. State v. Mann, 317 N.C. 164, 345 S.E.2d 365 (1986).

Each of defendant's three indictments charged that the offenses were infamous, which the statute requires to raise the offenses to a Class H felony. In addition the indictments detailed defendant's actions involving elements of deceit and intent to defraud.

At common law, ... an infamous crime is one whose commission brings infamy upon a convicted person, rendering him unfit and incompetent to testify as a witness, such crimes being treason, felony, and crimen falsi. This latter term means any offense involving corrupt deceit, or falsehood by which the public administration of justice may be impeded, such as perjury, subornation of perjury, forgery, bribery of witnesses, conspiracy in procuring non-attendance of witnesses, barratry, counterfeiting, cheating by false weights or measures, and conspiring to accuse an innocent person of crime.

State v. Surles, 230 N.C. 272, 283-84, 52 S.E.2d 880, 888 (1949) (Ervin, J., dissenting, quoting Burdick: Law of Crimes, section 87).

In State v. Preston, 73 N.C.App. 174, 176, 325 S.E.2d 686, 688 (1985), a defendant was convicted of obstruction of justice by the State with evidence proving the elements of deceit and intent to defraud, but the indictment failed "to charge the essential elements of deceit and intent to defraud which are necessary to elevate the misdemeanor offense of obstruction of justice to a felony." As a result the judgment was vacated. Here defendant was indicted for infamous offenses under the common law and G.S. § 14-3(b). As such the offenses are Class H felonies and are properly before the Superior Court under N.C. Gen.Stat. § 7A-271 (1985).

The fifth error argued by defendant was the trial court's refusal to instruct the jury concerning testimony of undercover agents or informants. N.C.P.I., Crim. 104.30. Defendant had raised an entrapment defense. Butler reported a crime to police and cooperated with police in their efforts to gather evidence of the crime. Butler was not in the employ of the police and did not receive payment for his cooperation. The trial court correctly refused to give the requested instruction.

Defendant's sixth assignment of error is the trial court committed plain error in instructing the jury on the law regarding an attempt to commit obstruction of justice. Defendant failed to object to the instruction at trial and can not assign as error any portion of the jury charge. N.C.R.App.P. 10(b)(2). While the trial court did not utilize the pattern jury instruction (N.C.P.I., Crim. 201.10), the instruction given was a correct statement of law. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). When no objection is made in the trial court, "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction...." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977)). The instruction given does not constitute plain error.

Defendant's final assignment of error is the trial court committed plain error in instructing the jury on the third offense of solicitation to commit obstruction of justice in future cases. Defendant failed to object to this jury instruction at trial and can not assign as error any portion of the jury charge. N.C.R.App.P. 10(b)(2). The trial court did not commit plain error by giving the jury instructions on solicitation to obstruct justice. Odom, 307 N.C. 655, 300 S.E.2d 375. As discussed earlier, the State presented evidence of the offense and the trial court correctly instructed the jury on the issue.

For the reasons set forth above, we find

No error.

HEDRICK, C.J., and GREENE, J., concur.