State v. Lyons ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-364
Filed: 3 December 2019
Johnston County, No. 16 CRS 56785
STATE OF NORTH CAROLINA
v.
DATREL K’CHAUN LYONS, Defendant
Appeal by Defendant from judgments entered 24 September 2018 by Judge
Imelda Pate in Johnston County Superior Court. Heard in the Court of Appeals 29
October 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil
Dalton, for the State.
James R. Parish for Defendant-Appellant.
INMAN, Judge.
Datrel K’Chaun Lyons (“Defendant”) appeals from judgments entered
following a jury’s verdict finding him guilty of attempted first degree murder and
conspiracy to commit attempted first degree murder. Defendant argues that: (1) the
conspiracy charge as set forth in the indictment is invalid, as it alleges a non-existent
crime; (2) the trial court erred in denying his motion to dismiss both charges for
insufficiency of the evidence; and (3) the trial court erred in finding duplicative
aggravating circumstances at sentencing. After careful review, we hold that the
STATE V. LYONS
Opinion of the Court
indictment for conspiracy is valid and the trial court did not commit error in denying
Defendant’s motion to dismiss. We dismiss the portion of Defendant’s appeal
pertaining to his sentencing for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented at trial tended to show the following:
On 24 October 2016, at approximately 9:30 p.m., two men robbed a Hardee’s
restaurant in Princeton, North Carolina as the employees were cleaning up and
closing for the night. Ms. Ricks, the manager, was in her office doing bookkeeping for
the day when she heard the alarm go off; suddenly, an unknown man appeared beside
her, pointed a gun at her, and demanded she give him money. Ms. Ricks complied
with his demand.
Ms. Ricks also observed a second man demanding that one of the cashiers open
a cash drawer. Ms. Ricks explained to the robbers that the cashier could not open the
cash drawer, but that she could. She then walked over and opened the drawer for
them. Inside the drawer were rolls of coins and a burgundy BB&T bank cash bag
containing approximately $500. One man took the BB&T bag and several rolls of
coins and threw them into a “bookbag.” The men then left the Hardee’s and drove
away in a Chevrolet Sonic vehicle. Ms. Ricks locked the doors and called the police.
At the time of the robbery, Johnston County Sheriff’s Deputy Adriane Stone
was driving a patrol car throughout the county. Sometime after the armed robbery
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was reported, Deputy Stone was driving on Cleveland Road when a car careened
toward her at 78 to 79 miles per hour in a 55 mile per hour zone. Deputy Stone slowed
to a stop and turned her emergency lights on, hopeful that the other car would slow
down or stop. When the speeding car did not stop, Deputy Stone turned her vehicle
around to give chase. Deputy Stone called dispatch and provided the license plate
number of the vehicle, later identified as a Chevrolet Sonic, and reported she was
making a traffic stop. She had no idea at that time that the vehicle was connected
with the armed robbery at the Hardee’s.
At one point during the pursuit, the Sonic slowed down suddenly and pulled
over onto the shoulder of the road. Deputy Stone rolled to a stop behind the Sonic
and exited her vehicle. After she did so, the Sonic sped away. Deputy Stone resumed
the chase and called on the radio for back up. As the pursuit continued, the Sonic
made a sudden stop a second time. Deputy Stone again stopped close behind.
After she had stopped, Deputy Stone observed a man, later identified as
Defendant, lean his torso out of the back window of the Sonic and point a gun directly
at her face. Deputy Stone immediately ducked behind her dashboard, heard a
gunshot, and shifted her car into reverse. The driver of the Sonic then fled the scene.
Deputy Stone, meanwhile, called dispatch to report shots fired, gathered her resolve,
and resumed the chase.
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Deputy Stone caught up to the fleeing Sonic and watched as it came to a stop
at the end of a cul-de-sac. She parked her patrol car behind the Sonic, drawing her
service pistol as she stepped out of the vehicle. The driver of the Sonic then turned
around and drove the vehicle towards her. Deputy Stone fired 3-5 shots, striking the
car. After the Sonic passed, Deputy Stone got back into her vehicle and heard another
officer, Deputy Michael Savage, announce over the radio that the Sonic had crashed.
Deputy Savage arrived on the scene shortly after Deputy Stone had discharged
her weapon, and observed that the Sonic had crashed into a mailbox off the side of
the road. He saw three men jump out of the car and run into nearby woods. He called
for help and Deputy Stone arrived a short time later. The two officers discussed what
to do next and began to search inside the Sonic for firearms. They discovered a pellet
gun in the backseat and a black Berretta pistol on the floorboard of the front
passenger seat.
Clayton Police K-9 Officer Justin Vause arrived at the crash site. As he was
approaching the site, he observed a man running into the woods. Officer Vause exited
his vehicle and loudly warned the fleeing man that he was preparing to release his
dog, Major, to find and subdue him. That man, later identified as Defendant, replied,
“I’m over here, sir[,]” and surrendered, at which time Officer Vause arrested him.
Officer Vause and Major then began to track a scent from the crashed Sonic, which
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eventually led them back to the woods where Defendant was arrested. Major
searched the area and discovered a brown BB&T bank bag filled with money.
Believing the remaining suspects were in the nearby wooded area, law
enforcement officers established a perimeter and deployed another tracking canine
and a thermal imaging camera. They soon located another suspect, later identified
as Gerald Holmes. Mr. Holmes did not initially cooperate with the police, but was
quickly subdued by Major. Law enforcement later identified Antonio Pratt as the
third suspect and arrested him several weeks after the chase.
Defendant was indicted on 7 November 2016 on charges of attempted first
degree murder and conspiracy to commit attempted first degree murder.
At trial, Deputy Stone, Deputy Savage, Officer Vause, and Mr. Pratt testified
to the events of the evening in detail. Describing the police chase, Mr. Pratt testified
that when he first saw Deputy Stone’s car, he began to panic because he was speeding
and did not have a driver’s license. He further testified that, at one point during the
chase, Mr. Holmes told him to pull over; when he did, he heard Mr. Holmes yell to
Defendant, “Shoot, bro. Shoot.” Mr. Pratt testified that he then heard a loud boom,
which he identified as a gunshot.
At the close of the State’s evidence, Defendant moved to dismiss all claims for
insufficiency of the evidence. That motion was denied. Defendant offered no
evidence, and the jury found Defendant guilty on both charges. After the verdict was
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announced, Defendant admitted to the existence of three aggravating factors as part
of a plea bargain. The trial court sentenced Defendant to 157 to 201 months
imprisonment for attempted first degree murder and a consecutive sentence of 73 to
100 months imprisonment for conspiracy to commit attempted first degree murder.
Both sentences fell at the top of the presumptive range and overlapped with the
bottom of the aggravated range. Defendant gave notice of appeal in open court.
II. ANALYSIS
A. Standard of Review
We review challenges to the validity of indictments de novo. State v. Billinger,
213 N.C. App. 249, 255, 714 S.E.2d 201, 206 (2011). To be valid, “an indictment must
allege every essential element of the criminal offense it purports to charge.” State v.
Courtney, 248 N.C. 447, 451, 103 S.E.2d 861, 864 (1958). An indictment that falls
short of this standard fails to confer subject-matter jurisdiction on the trial court.
Billinger, 213 N.C. App. at 255, 714 S.E.2d at 206.
The de novo standard also applies to our review of a trial court’s denial of a
motion to dismiss for insufficiency of the evidence. Id. at 253, 714 S.E.2d at 205. We
“determine whether the State has presented substantial evidence (1) of each essential
element of the offense, and (2) of the defendant’s being the perpetrator.” Id. at 252-
53, 714 S.E.2d at 204-05 (citations omitted). We view the evidence “in the light most
favorable to the State, giving the State the benefit of every reasonable inference and
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resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d
211, 223 (1994).1
B. Conspiracy to Commit Attempted Murder
Defendant contends that the indictment charging him with conspiracy “to
commit the felony of Attempted First Degree Murder, [N.C. Gen. Stat. §] 14-17
against Adriane Stone” is invalid, as it alleges he conspired to commit a crime that
does not exist. Whether conspiracy to commit attempted first degree murder is a
crime is an issue of first impression for this Court, and presents, Defendant argues,
“an illogical impossibility and a legal absurdity[,]” insofar as it would criminalize
agreements not to commit murder. Though this argument does appear convincing at
first blush, a full examination of the common law surrounding both conspiracy and
attempted first degree murder lead us to hold that the indictment is valid.
At the outset, we note that the indictment alleges the elements of criminal
conspiracy as a technical matter. “A criminal conspiracy is an agreement between
two or more persons to do an unlawful act or to do a lawful act in an unlawful way or
by unlawful means.” State v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975)
(citations omitted). Attempted first degree murder is most certainly a crime. State
1 At oral argument, Defendant conceded that he could not appeal his sentence as a matter of
right under N.C. Gen. Stat. § 15A-1444(a1) (2019), and requested instead that we invoke Rule 2 of the
North Carolina Rules of Appellate Procedure, treat his appeal as a petition for writ of certiorari, grant
that petition, and reach the issue on the merits. We decline to invoke Rule 2 and dismiss that portion
of his appeal.
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v. Collins, 334 N.C. 54, 59, 431 S.E.2d 188, 191 (1993). Thus, from a purely formulaic
perspective, the indictment alleges both elements of conspiracy: (1) an agreement
between Mr. Holmes and Defendant; (2) to commit an unlawful act, i.e., attempted
first degree murder. Cf. United States v. Clay, 495 F.2d 700, 710 (7th Cir. 1974)
(holding an indictment alleging conspiracy to attempt to break into a bank was valid
because the general federal criminal conspiracy statute required “the object
alleged . . . be an offense against the United States” and a specific criminal statute
recognized attempted bank robbery as just such an offense).
To ultimately convict a defendant of conspiracy, however, “the State must
prove there was an agreement to perform every element of the underlying offense[,]”
State v. Dubose, 208 N.C. App. 406, 409, 702 S.E.2d 330, 333 (2010) (citation omitted),
and the “elements of an attempt to commit any crime are: (1) the intent to commit
the substantive offense, and (2) an overt act done for that purpose which goes beyond
mere preparation, but (3) falls short of the completed offense.” State v. Melton, ___
N.C. ___, ___, 821 S.E.2d 424, 428 (2018).2 The phrase “conspiracy to commit
attempted first degree murder” sounds discordant to the lawyerly ear because it
suggests the conspirators must have intended to fail to commit a crime. While two
2 We note that decisions by our Supreme Court do not consistently identify failure as a discrete
third element of attempt. See, e.g., State v. Powell, 277 N.C. 672, 678, 178 S.E.2d 417, 421 (1971) (“The
two elements of an attempt to commit a crime are: (1) An intent to commit it, and (2) an overt act done
for that purpose, going beyond mere preparation, but falling short of the completed offense.” (emphasis
added) (citations omitted)).
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or more people who collude to “make an attempt on” another’s life or agree to “try”
and kill someone have engaged in a criminal conspiracy, an indictment alleging a
conspiracy “to commit the felony of Attempted First Degree Murder” strikes a less
natural tone.
The State argues intent to fail is not in actuality an essential element of
conspiracy to commit attempted first degree murder, contending that if the
implication of an intent to fail is removed, so too is any disharmony in the indictment.
Crucially, conspiracy is a common law crime in North Carolina, State v. Arnold,
329 N.C. 128, 142, 404 S.E.2d 822, 830 (1991), as is attempted first degree murder.
Collins, 334 N.C. at 59, 431 S.E.2d at 191 (recognizing, apparently for the first time
outside of dicta, the existence of the crime). We may hold failure is not an essential
element of conspiracy to commit attempted first degree murder—as a species of the
common law crime of conspiracy—if our Supreme Court’s precedents so indicate. Cf.
State v. Freeman, 302 N.C. 591, 594, 276 S.E.2d 450, 452 (1981) (holding the Supreme
Court “possesses the authority to alter judicially created common law when it deems
it necessary”); State v. Lane, 115 N.C. App. 25, 30, 444 S.E.2d 233, 237 (1994)
(observing that this Court lacks the authority to modify or abandon the accepted
common law).
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Numerous decisions from our Supreme Court support the conclusion that
failure is not strictly necessary to complete the crime of attempt.3 In State v. Baker,
369 N.C. 586, 799 S.E.2d 816 (2017), a defendant was tried and convicted of
attempted rape, even though the substantial evidence introduced at trial showed that
the rape was completed. 369 N.C. at 592-93, 799 S.E.2d at 820. This Court held that
the trial court erred in denying the defendant’s motion to dismiss that charge,
reasoning that “while there may have been substantial evidence for the jury to find
defendant guilty of rape . . . there was insufficient evidence to support his conviction
for attempted rape.” State v. Baker, 245 N.C. App. 94, 99, 781 S.E.2d 851, 855 (2016).
Our Supreme Court reversed that decision and held that “evidence of a completed
rape is sufficient to support an attempted rape conviction.” Baker, 369 N.C. at 597,
799 S.E.2d at 823.
Although the Supreme Court recited the elements of attempt as including
failure, it also favorably cited State v. Primus, 227 N.C. App. 428, 430-32, 742 S.E.2d
310, 312-13 (2013), in which we “rejected the defendant’s argument that guilt of the
crime of attempted larceny requires that the defendant’s act supporting the attempt
charge fall short of the competed offense in order to be sufficient to support an
attempt conviction, a conclusion that accords with the modern view concerning
3Stated differently, the cases discussed infra suggest that a successful premeditated killing of
a human being is a necessary element of first degree murder, but not for attempted first degree
murder.
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criminal liability for attempt.” Baker, 369 N.C. at 596-97, 799 S.E.2d at 823 (citing 2
Wayne R. LaFave, Substantive Criminal Law § 11.5, at 230 (2d ed. 2003)).
It also favorably quoted this Court’s statement in State v. Canup, 117 N.C.
App. 424, 451 S.E.2d 9 (1994), that “ ‘nothing in the philosophy of juridicial [sic]
science requires that an attempt must fail in order to receive recognition.’ ” Baker,
369 N.C. at 596, 799 S.E.2d at 822 (quoting Canup, 117 N.C. App. at 428, 451 S.E.2d
at 11). Thus, Baker suggests that while failure precludes a conviction for a completed
crime, it is not necessary to support a conviction for criminal attempt of that same
crime.
Such an understanding is consistent with the common law’s treatment of
attempted first degree murder as a lesser included offense of first degree murder. See
Collins, 334 N.C. at 59, 431 S.E.2d at 191 (recognizing attempted murder as a lesser
included offense of murder). Our Supreme Court has long employed “a definitional
test for determining whether one crime is a lesser included offense of another crime.”
State v. Nickerson, 365 N.C. 279, 281, 715 S.E.2d 845, 846 (2011) (citing State v.
Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 377 (1982)). “[T]he test is whether the
essential elements of the lesser crime are essential elements of the greater crime. If
the lesser crime contains an essential element that is not an essential element of the
greater crime, then the lesser crime is not a lesser included offense.” Nickerson, 365
N.C. at 282, 715 S.E.2d at 847. “In other words, all of the essential elements of the
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lesser crime must also be essential elements included in the greater crime.” Weaver,
306 N.C. at 635, 295 S.E.2d at 379 (emphasis added), overruled in part on other
grounds by Collins, 334 N.C. at 61, 431 S.E.2d at 193.
Thus, a conclusion that failure to kill is an essential and necessary element of
attempted first degree murder cannot be squared with the definition of a lesser
included offense, as failure is most certainly not an element of the greater offense of
a completed first degree murder. Cf. State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45,
47 (2000) (reciting the elements of both first degree murder and the lesser included
offense of attempted first degree murder).
Other states have held conspiracy to commit an attempted crime is a
cognizable offense where the common law crime of attempt does not require failure
as an essential element. As pointed out by Defendant,4 Maryland recognizes the
existence of the crime of conspiracy to attempt first degree murder. Stevenson v.
State, 423 Md. 42, 52 (2011) (“ ‘[C]onspiracy to attempt a first degree murder’ is a
cognizable offense.” (citing Townes v. State, 314 Md. 71 (1988)). In Townes,
Maryland’s highest appellate court reviewed an indictment for “conspiracy to attempt
to commit the crime of obtaining money by false pretenses[,]” which it held charged a
4 Defendant cites to an unpublished decision of Maryland’s intermediate appellate court,
Knuckles v. State, 2018 WL 2113969 (Md. Ct. Spec. App. May 8, 2018), for this proposition. Knuckles,
however, relied exclusively on published cases from Maryland’s highest court. Our discussion,
therefore, focuses on those published cases rather than on Knuckles itself.
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valid crime. 314 Md. at 75. The court in Townes first recognized that the indictment
was technically sufficient to allege conspiracy:
If we mechanically assemble the building blocks of the
crime of conspiracy in the context of this case, it would
seem that the crime of conspiracy to attempt to commit the
crime of obtaining money by false pretenses fits the
established mold. Obtaining money by false pretenses is a
crime. Attempting to obtain money by false pretenses is a
separate, self-standing crime. Accordingly, if a criminal
conspiracy consists of an agreement to commit a crime, and
an attempt to obtain money by false pretenses is a crime,
it follows that the crime of conspiracy to attempt to obtain
money by false pretenses fits the legal definition of
conspiracy.
Id. at 75-76 (citations omitted). The court in Townes then went on to address and
reject as inapplicable the argument—also presented in this case—that one cannot
criminally intend not to complete a crime:
Townes’ argument fails to take into consideration an
established principle of Maryland law. In this State, unlike
a minority of other states, failure to consummate the
intended crime is not an essential element of an attempt.
....
The logical inconsistency postulated by Townes simply
does not exist in this State. A person intending to commit
a crime intends also to attempt to commit that crime. The
intent to attempt is viewed as correlative to and included
within the intent to consummate. Accordingly, one who
conspires to commit a crime concurrently conspires to
attempt to commit that crime.
Id. at 76-77 (citations omitted).
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Our Supreme Court’s decisions recounted supra align with the reasoning
espoused in Townes. Cf. Baker, 369 N.C. at 596, 799 S.E.2d at 822 (holding evidence
of a completed rape is sufficient to support a conviction for attempted rape in part
because “ ‘[t]he completed commission of a crime must of necessity include an attempt
to commit the crime’ ” (quoting Canup, 117 N.C. App. at 428, 451 S.E.2d at 11)
(alteration in original)).
Although Defendant relies on several decisions by other courts that have
reached the opposite result, those decisions all arose in jurisdictions where either the
crimes in question were statutorily delineated or failure was considered by the
deciding court to be a necessary element of conspiracy to attempt. See, e.g., People v.
Iniguez, 96 Cal. App. 4th 75, 79 (2002) (holding conspiracy to commit attempted
murder was not a crime where the attempt statute provided “ ‘[e]very person who
attempts to commit any crime, but fails, . . .’ is guilty of a crime” (citation omitted));
Wilhoite v. State, 7 N.E.3d 350, 353 (Ind. Ct. App. 2014) (relying on Iniguez to hold
that conspiracy to commit attempted robbery was not a cognizable crime because
“colloquially speaking, to ‘attempt’ a crime is to ‘try’ without actually completing the
crime” (citation omitted)); United States v. Meacham, 626 F.2d 503, 509 n.7 (5th Cir.
1980) (distinguishing Clay, holding that Congress did not intend to create a crime of
conspiracy to attempt to commit federal drug crimes under 21 U.S.C. §§ 846 & 963,
and observing that conspiracy to attempt to fail is “the height of absurdity”).
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In short, given that failure need not actually be shown or proven to convict a
defendant of attempt, Baker, 369 N.C. at 596, 799 S.E.2d at 822, and that attempted
first degree murder is a lesser included offense of first degree murder, Collins, 334
N.C. at 59, 431 S.E.2d at 191, the charge of conspiracy to commit attempted first
degree murder does not require the state to prove defendant intended to fail to
commit the attempted crime itself. As a result, we hold that conspiracy to commit
attempted first degree murder is a cognizable offense and, with all other elements of
conspiracy appearing in the indictment, was adequately charged in this case.
C. Motion to Dismiss
Defendant next argues that the trial court erred in denying his motion to
dismiss all charges for insufficiency of the evidence, contending that the evidence
shows only that he fired a pellet gun in an attempt to scare Deputy Stone away. Such
evidence, Defendant contends, defeats every element of attempted first degree
murder. Defendant also applies that same argument to the conspiracy charge and
reasserts that the State was required to—and could not—prove an intent to fail.
Defendant is incorrect in his claim that the evidence shows only that he fired
a pellet gun with an intent to scare off Deputy Stone. Deputy Stone testified that she
saw Defendant point a gun at her face and that she heard a gunshot after ducking
behind her dashboard. Though it is true that she did not directly observe where the
gun was pointed at the time it was fired, she further testified that this series of events
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happened “fast[,]” and testified on cross-examination that “once I saw the gun at my
face, I yelled out, ‘Oh, s--t,’ and I started to go down. . . . [A]s I’m going down, I hear
the gunshot.”
While it is possible that the gun was not pointed at Deputy Stone when
Defendant pulled the trigger, the jury could draw a reasonable inference from Deputy
Stone’s testimony to find the gun remained pointed at her when she heard it seconds
later. Contrary to Defendant’s argument, such an inference is no less reasonable
because Deputy Stone took quick evasive action in the interest of self-preservation.
Mr. Pratt, who was the getaway driver during the chase, also provided the following
testimony indicating that Defendant discharged a firearm rather than a pellet gun:
“I heard [Mr. Holmes] say ‘Shoot, bro. Shoot.’ . . . He had to be talking to
[Defendant]. . . . I just looked at Holmes. I heard [a] boom. . . . I want to say
[Defendant] fired the shot.”
Further, Mr. Pratt was unequivocal in his testimony that Mr. Holmes did not
have a gun in his hand when the shot rang out. Our standard of review on a motion
to dismiss compels us to adopt the reasonable inference most favorable to the State
from this evidence, Rose, 339 N.C. at 192, 451 S.E.2d at 223, which, in this case, is
an inference that Defendant aimed and fired a gun at Deputy Stone following
instruction from Mr. Holmes. Defendant’s argument is overruled.
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We likewise hold that the trial court did not err in denying the motion to
dismiss as to the conspiracy charge. The jury could reasonably infer Defendant, in a
conspiracy with Mr. Holmes, attempted to kill Deputy Stone by firing a gun at her.
Because intentional failure is not necessary to a charge of conspiracy to commit
attempted murder, as explained supra, the State was not required to demonstrate
Defendant intended to fail in his attempt to take Deputy Stone’s life. Defendant’s
argument on this point is likewise overruled.
D. Sentencing
At oral argument, Defendant conceded that he could not appeal his sentences
as a matter of right under N.C. Gen. Stat. § 15A-1444(a1) (2019), and requested
instead that we invoke Rule 2 of the North Carolina Rules of Appellate Procedure,
treat his appeal as a petition for writ of certiorari, grant that petition, and reach the
issue on the merits. We decline to invoke Rule 2 and dismiss that portion of his
appeal. See State v. Daniels, 203 N.C. App. 350, 354-55, 691 S.E.2d 78, 81-82 (2010)
(dismissing a defendant’s appeal from sentencing under
N.C. Gen. Stat. § 15A-1444(a1) when defendant’s sentence in the presumptive range
nonetheless overlapped with the aggravated range).
III. CONCLUSION
We hold the indictment in this case validly charged Defendant with a criminal
conspiracy. The evidence introduced at trial was sufficient to submit both charges of
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attempted murder and conspiracy to the jury. Defendant’s appeal from sentencing is
dismissed for want of jurisdiction. We find no error in the jury’s verdicts or in the
judgments entered thereon.
DISMISSED IN PART; NO ERROR IN PART.
Judge TYSON concurs.
Judge BERGER concurs by separate opinion.
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No. COA 19-364 – State v. Lyons
BERGER, Judge, concurring in separate opinion.
I concur with the majority. However, I write separately because I would reach
the same result through different reasoning.
“[T]he primary purpose of an indictment is to enable the accused to prepare for
trial.” State v. Silas, 360 N.C. 377, 382, 627 S.E.2d 604, 607 (2006) (citation and
quotation marks omitted). “The indictment must also enable the court to know what
judgment to pronounce in case of conviction.” State v. Nicholson, 78 N.C. App. 398,
401, 337 S.E.2d 654, 657 (1985) (citation and quotation marks omitted). It is well-
settled in North Carolina that any allegations in an indictment beyond those
essential to the crime sought to be charged “are irrelevant and may be treated as
mere surplusage.” State v. Bowens, 140 N.C. App. 217, 224, 535 S.E.2d 870, 875
(2000). So long as surplusage contained within an indictment does not prejudice the
defendant, such language can properly be ignored. State v. Freeman, 314 N.C. 432,
436, 333 S.E.2d 743, 745-46 (1985).
“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). Notably, “a conspiracy indictment need not describe
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the subject crime with legal and technical accuracy because the charge is the crime
of conspiracy and not a charge of committing the subject crime.” Nicholson, 78 N.C.
App. at 401, 337 S.E.2d at 657. To convict a defendant of conspiracy, the State must
prove beyond a reasonable doubt that the defendant was member to an agreement to
perform every element of the underlying offense. State v. Dubose, 208 N.C. App. 406,
409, 702 S.E.2d 330, 333 (2010).
The offense of first-degree murder is established and defined by Section 14-17
of the North Carolina General Statutes. N.C. Gen. Stat. § 14-17 (2017). In the
present case, Defendant was indicted for “conspir[ing] with Gerald Holmes to commit
the felony of Attempted First Degree Murder, N.C.G.S. 14-17.” Accordingly, the
indictment was sufficient to allow Defendant to prepare for trial because it contained
the two essential elements of the crime of conspiracy: (1) an agreement with Gerald
Holmes, and (2) to commit the unlawful act of first-degree murder pursuant to Section
14-17. The inclusion of the word “attempted” is irrelevant to the indictment and may
be treated as surplusage. Moreover, so long as the inclusion of the word “attempted”
in the indictment did not prejudice Defendant at trial, which it did not, this
surplusage can properly be ignored.
For a defendant to be found guilty of the common law offense of attempted
first-degree murder, the State must prove the following elements beyond a reasonable
doubt “(1) the intent to commit [first-degree murder], and (2) an overt act done for
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that purpose which goes beyond mere preparation, but (3) falls short of the completed
offense.” State v. Melton, 371 N.C. 750, 756, 821 S.E.2d 424, 428 (2018) (citation and
quotation marks omitted). At trial, following the conclusion of the State’s case-in-
chief, Defendant did not present any evidence in his own defense. Relying on the
charging indictment, the trial court subsequently instructed the jury on felonious
conspiracy to attempt first-degree murder.
As noted by the majority, the State presented sufficient evidence by which a
reasonable juror could conclude that Defendant satisfied the first element of
conspiracy to commit attempted first-degree murder. For Defendant to satisfy this
first element, the jury was required to find, beyond a reasonable doubt, that
Defendant was member to an agreement with “the intent to commit first-degree
murder.” By necessity, then, the jury must also have found, beyond a reasonable
doubt, that Defendant participated in an agreement with the intent to perform every
element of first-degree murder. Therefore, the State satisfied its burden of proving
that Defendant was member to a conspiracy to commit first-degree murder.
As a result of Defendant being found guilty of conspiracy to commit attempted
first-degree murder, he was sentenced for a Class C felony instead of a B2 felony.
N.C. Gen. Stat. §§ 14-2.4; 14-2.5; 14-7 (2017). Thus, Defendant is not entitled to relief
on appeal based upon the inclusion of the word “attempted” in his indictment because
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STATE V. LYONS
Opinion of the Court
the word’s inclusion did not prejudice Defendant at trial. Any error stemming from
this surplusage in the indictment was in Defendant’s favor.
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