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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. AARON JONWAN BREWTON, Defendant
Filed: 20 September 2005
1. Conspiracy_first-degree murder--sufficiency of evidence
There was sufficient circumstantial evidence to deny defendant's motion to dismiss
conspiracy to commit first-degree murder even though defendant's alleged co-conspirator
testified that they did not expressly agree or plan to kill the victim. A reasonable juror could
infer from the evidence an implicit agreement to work together.
2. Conspiracy_first-degree murder_premeditation and deliberation inherent in
When a jury finds an agreement to commit a murder, it necessarily also finds
premeditation and deliberation.
3. Sentencing_Blakely error_harmless error not applicable
A Blakely error in sentencing defendant with judicially found aggravating factors was not
subject to harmless error analysis. Sentencing errors under Blakely v. Washington, 542 U.S. 296,
are structural and reversible per se.
Appeal by defendant from judgment entered 13 May 2004 by Judge
E. Penn Dameron, Jr. in Buncombe County Superior Court. Heard in
the Court of Appeals 14 April 2005.
Attorney General Roy Cooper,
by Assistant Attorney General
, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
Defendant Aaron Jonwan Brewton appeals from the judgment of
the trial court finding him guilty of conspiracy to commit murder.
Defendant argues on appeal that the trial court (1) erred when it
denied his motion to dismiss the conspiracy charge because there
was insufficient evidence to support such a charge, (2) committedplain error by not properly instructing the jury on the charge of
conspiracy to commit murder, and (3) erred by imposing an
aggravated sentence based upon judicially-found aggravating
factors. We hold that there was sufficient evidence to deny the
motion to dismiss and that the court did not commit plain error in
its instructions to the jury. With respect to defendant's
sentence, however, we hold that under State v. Allen, 359 N.C. 425,
615 S.E.2d 256 (2005), this case must be remanded for a new
The State's evidence tended to show the following. In January
2003, Neko Hyatt was stabbed to death by George Boston after an
altercation outside a nightclub in Asheville, North Carolina.
Defendant was present at the nightclub on the night of the murder
and witnessed the altercation between Hyatt and Boston. Boston was
later arrested and charged with the murder of Neko Hyatt.
In early May 2003, Boston was released on bond while the
murder charge was pending. Those close to Neko Hyatt were upset,
including Charles Hyatt (Neko Hyatt's brother) and defendant
(Charles Hyatt's cousin). Boston's sister, Kimberly Boston, stated
that her brother primarily stayed inside because there had been
talk on the streets that something might happen to him.
On 24 May 2003, George Boston was sitting outside of the
Deaverview Apartments. Kimberly Boston, who was also outside, saw
two men drive by two or three times in a PT Cruiser, but she could
not identify the men. Later, Kimberly saw a tall man, wearing awhite T-shirt and a baseball cap on his head, come from behind one
of the buildings. A deliveryman testified that the man had a white
shirt or towel draped over what looked like a gun. The man raised
his arm and fired three or four shots at George Boston before
running to the PT Cruiser, which was waiting with the passenger
door open. Kimberly chased after the PT Cruiser and got a partial
license tag number. George Boston died later that day.
Kimberly Boston testified at trial that she believed, based
upon the person's build, that defendant was the man who shot George
Boston. Kimberly knew defendant because he had dated her sister
for a time, and she also knew that defendant had recently made
threats against her brother. George's older brother, Marcellus
Boston, also identified defendant as the shooter based upon his
build and from seeing his face from the eyes down. Marcellus could
not see the shooter's entire face because he had a white shirt
draped on his head. Another witness, Nikki Griffin, testified that
while she could not see the shooter's face, she thought it was
defendant based upon the way he carried himself.
After the shooting, the police radioed all officers to watch
for a gold PT Cruiser with two black males in the area of
Deaverview Apartments. Shortly thereafter, an officer spotted and
subsequently stopped the PT Cruiser. The officer arrested the
driver, Charles Hyatt. No one else was in the car at the time.
Hyatt, who was charged with first degree murder and conspiracy
to commit first degree murder, was called to testify by the State
at defendant's trial. He stated that, on 24 May 2003, defendant,who was driving a burgundy car, agreed to give Hyatt a ride to get
something to eat. Later, defendant decided instead to go to
Deaverview Apartments. Hyatt testified that he was "all right with
that." The two of them then borrowed a PT Cruiser from Carmell
Harding. Harding had rented the car from Enterprise Rent-A-Car.
After defendant dropped off the burgundy car, defendant drove the
two men to the Deaverview Apartments in the PT Cruiser. Hyatt
testified that at that point he "had no clue" why they were going
to the apartment complex. When they spotted George Boston,
defendant said to Hyatt, "[t]here he goes" and exclaimed "[b]itch
n_---r." Hyatt acknowledged that George Boston was the only person
they were looking for and that when defendant said "there he goes,"
Hyatt knew whom he meant.
After saying "[t]here he goes," defendant stopped the car down
the road from the apartments and Hyatt moved to the driver's seat.
Defendant got out of the car with a t-shirt balled up in his hand
and headed into some trees across the street. Hyatt claimed that
he did not see defendant take a gun. Hyatt then got in the
driver's seat and drove around the complex for a few minutes by
himself. Defendant called Hyatt on his cell phone and said, "Let's
roll." As Hyatt drove towards the apartment complex exit, he heard
three or four gunshots, but did not see the shooting itself. Hyatt
picked up defendant near the apartment complex exit and they drove
away without saying a word.
At defendant's direction, Hyatt drove defendant to defendant's
uncle's house near the French Broad River by a route through thecountryside. Defendant never said anything about what had happened
at the apartments. As Hyatt was driving the PT Cruiser back to
Asheville to return it to Harding, he was stopped by the police.
When interviewed by the police that afternoon, Hyatt initially
falsely told them that he alone had borrowed the PT Cruiser and was
by himself at Deaverview Apartments when defendant called to ask
him for a ride. Hyatt claimed that he had simply picked defendant
up and driven defendant to defendant's uncle's house. When the
police asked Hyatt to call defendant on his cell phone, he refused
to do so. Later, Hyatt gave statements consistent with his trial
testimony. Hyatt also testified at trial that defendant had not
discussed going to Deaverview Apartments to kill Boston and that
there was no plan or agreement. According to Hyatt, it "just
Defendant was subsequently indicted with first degree murder
and conspiracy to commit first degree murder. These charges were
tried on 10 May 2004 before Judge E. Penn Dameron, Jr. in Buncombe
County Superior Court. The jury found defendant guilty of
conspiracy to commit first degree murder. It could not, however,
reach a unanimous verdict on the first degree murder charge, and
the judge declared a mistrial as to that charge.
In the sentencing phase, Judge Dameron found as aggravating
factors that (1) the offense was committed to disrupt the lawful
exercise of a governmental function or the enforcement of the laws,
(2) defendant knowingly created a great risk of death to more than
one person by means of a weapon or device, and (3) defendantcommitted the offense while on pre-trial release. The judge found
as mitigating factors that (1) defendant had a support system in
the community, and (2) defendant had a positive employment history.
The judge concluded that the aggravating factors outweighed the
mitigating factors and sentenced defendant in the aggravated range
to a term of 276 to 341 months imprisonment.
Defendant gave oral notice of appeal from his conviction for
conspiracy to commit murder following sentencing on 13 May 2004.
Defendant later filed a motion for appropriate relief with this
Court on 13 October 2004 based on Blakely v. Washington, 542 U.S.
296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).
 Defendant first assigns error to the trial court's denial
of his motion to dismiss the charge of conspiracy to commit first
degree murder. Defendant argues that there was insufficient
evidence of an agreement between defendant and Charles Hyatt to
support a finding of a conspiracy. When considering a motion to
dismiss by a criminal defendant, the trial court must determine
whether the State has presented substantial evidence of every
essential element of the crime and that the defendant is the
perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245,
255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488
(2002). "Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
When considering a motion to dismiss, the court must consider theevidence "in the light most favorable to the State, giving the
State the benefit of every reasonable inference and resolving any
contradictions in its favor." State v. Rose, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed.
2d 818, 115 S. Ct. 2565 (1995). "'In "borderline" or close cases,
our courts have consistently expressed a preference for submitting
issues to the jury . . . .'" State v. Jackson, 103 N.C. App. 239,
244, 405 S.E.2d 354, 357 (1991) (quoting State v. Hamilton, 77 N.C.
App. 506, 512, 335 S.E.2d 506, 510 (1985), cert. denied, 315 N.C.
593, 341 S.E.2d 33 (1986)), aff'd per curiam, 331 N.C. 113, 413
S.E.2d 798 (1992).
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." State v.
Gell, 351 N.C. 192, 209, 524 S.E.2d 332, 343, cert. denied, 531
U.S. 867, 148 L. Ed. 2d 110, 121 S. Ct. 163 (2000). While the
existence of an agreement is an essential element of conspiracy, an
express agreement is not required in order to show that a
conspiracy existed. State v. Lawrence, 352 N.C. 1, 24, 530 S.E.2d
807, 822 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684,
121 S. Ct. 789 (2001). As the Supreme Court stated in Lawrence:
A mutual, implied understanding is sufficient,
so far as the combination or conspiracy is
concerned, to constitute the offense. The
existence of a conspiracy may be shown with
direct or circumstantial evidence. The proof
of a conspiracy may be, and generally is,
established by a number of indefinite acts,
each of which, standing alone, might have
little weight, but, taken collectively, theypoint unerringly to the existence of a
Id. at 24-25, 530 S.E.2d at 822 (internal citations and quotation
marks omitted). On the other hand, "[w]hile conspiracy can be
proved by inferences and circumstantial evidence, it 'cannot be
established by a mere suspicion, nor does a mere relationship
between the parties or association show a conspiracy.'" State v.
Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004)
(quoting State v. Massey, 76 N.C. App. 660, 662, 334 S.E.2d 71, 72
Since Hyatt testified that he and defendant did not expressly
agree or plan to kill Boston, the State had no direct evidence of
conspiracy and had to rely upon circumstantial evidence. After
reviewing the evidence in the light most favorable to the State, we
find there was sufficient circumstantial evidence to support a
charge of conspiracy to commit murder.
The evidence at trial indicated that both Hyatt and defendant
were upset that Boston had been released on bond after killing
Hyatt's brother. On the day of the murder, although Hyatt had
requested a ride to get something to eat, defendant suggested
instead that they go to Deaverview Apartments where they ultimately
found Boston _ a change with which Hyatt was "all right." Rather
than simply driving there in defendant's girlfriend's car, which
defendant already was driving, the two men borrowed a rental car
from another person _ conduct that the jury could view as an
attempt to avoid identification. After driving back and forth
through the apartment complex, defendant announced "[t]here he is,"and Hyatt acknowledged that he understood defendant to be referring
to Boston because that was the only person for whom they would be
looking. Defendant immediately stopped the car and got out, while
Hyatt drove around until he received a cell phone call from
defendant, saying "[l]et's roll." At that point, Hyatt drove to a
particular spot, stopped the car, and opened the passenger door.
Although Hyatt heard a series of gunshots, he did not say anything
to defendant after defendant jumped in the car, but simply drove
him through the countryside to defendant's uncle's house. When he
was stopped by the police while heading back to return the car, he
initially told a false story to cover up the fact that the two men
had together borrowed the PT Cruiser and gone to the Deaverview
A reasonable juror could infer from this evidence an implicit
agreement to work together to accomplish the goal of revenge for
the murder of Hyatt's brother. There was evidence of motive, of a
joint understanding that the two men would go to Deaverview
Apartments, of a joint borrowing of a car without concrete ties to
either one of them, of behavior consistent with Hyatt's driving a
"get away" car, of a lack of any surprise on Hyatt's part regarding
gunshots, and of an effort on Hyatt's part to cover up the two
men's joint activities. See State v. Gibbs, 335 N.C. 1, 48, 436
S.E.2d 321, 348 (1993) (finding that the defendants' actions after
the crime were evidence of the conspiracy), cert. denied, 512 U.S.
1246, 129 L. Ed. 2d 881, 114 S. Ct. 2767 (1994). Although defendant relies upon State v. Merrill, 138 N.C. App.
215, 221-22, 530 S.E.2d 608, 613 (2000), the evidence in that case
showed only that the alleged co-conspirator had suggested killing
the victim (but received no response from the defendant), and,
after the murder, the defendant had assisted in concealing the
crime. There was no evidence of any assistance by the defendant in
furtherance of the murder; in fact, she was out of town at the time
of the murder. This Court held that "[m]ere passive cognizance of
the crime or acquiescence in the conduct of others will not suffice
to establish a conspiracy. . . . It is not sufficient that the
actor only believe that the result would be produced, but did not
consciously plan or desire to produce it." Id. at 221, 530 S.E.2d
In this case, the State presented evidence suggesting not just
an awareness by Hyatt that Boston might be killed, but also
affirmative acts by Hyatt to assist defendant. A reasonable juror
could view the evidence as establishing the "mutual, implied
understanding" held in Lawrence, 352 N.C. at 25, 530 S.E.2d at 822,
to be sufficient to support a conspiracy charge. Thus, based on
the totality of the evidence and the inferences that reasonably can
be drawn from it, the trial court did not err in denying
defendant's motion to dismiss the conspiracy charge. See Gell, 351
N.C. at 209-10, 524 S.E.2d at 344 (holding that the record
contained sufficient evidence of an agreement to rob or kill the
victim when the co-defendants were aware of the defendant's intent
to rob and harm the victim, the co-defendants assisted thedefendant in entering the victim's house undetected and showed the
defendant the location of the victim's money, and the co-defendants
left the house with the defendant after the murder); State v.
Burmeister, 131 N.C. App. 190, 199, 506 S.E.2d 278, 283 (1998)
(holding that the State presented sufficient evidence of a
conspiracy to commit murder when the defendant and a co-defendant
left jackets, jewelry, and wallets in a car driven by a third
person while they went to harass a couple with the defendant
hinting that he might kill the couple; the defendant instructed the
driver to leave if they were not back within 15 minutes; and the
driver, after hearing six gunshots, told the police two false
stories to explain his presence near the scene). Since the
evidence in this case is more than a series of indefinite,
unrelated acts and gives rise to more than a mere suspicion of
conspiracy, this assignment of error is overruled.
 Defendant's next assignment of error contends that the
trial court erred in its instructions to the jury regarding
conspiracy to commit murder. Defendant acknowledges that he did
not object to the judge's instructions, but argues that the
improper instructions constitute plain error. Plain error is a
"'fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done, or where the
error is grave error which amounts to a denial of a fundamental
right of the accused . . . .'" State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676F. 2d 995, 1002 (4th Cir. 1982) (internal quotation marks
omitted)). Defendant has also filed a motion for appropriate
relief that asserts a claim for ineffective assistance of counsel
based upon trial counsel's failure to object to the jury
As part of its instructions on the conspiracy charge, the
trial court stated that "[f]or purposes of this conspiracy charge
only, murder is the unlawful killing of another with malice."
Defendant argues that this instruction fails to require the jury to
find premeditation and deliberation, two of the underlying elements
of first degree murder. In support of his argument, defendant
relies upon State v. Choppy, 141 N.C. App. 32, 39, 539 S.E.2d 44,
49 (2000), appeal dismissed and disc. review denied, 353 N.C. 384,
547 S.E.2d 817 (2001), in which this Court held: "To prove that
the defendant committed conspiracy to commit first-degree murder,
the State must prove that the defendant agreed to perform every
element of the crime _ i.e., that he agreed to the intentional
killing of a victim after premeditation and deliberation." See
also State v. Curry, __ N.C. App. __, __, 615 S.E.2d 327, 334
(2005) (holding that the jury must be instructed to find an
agreement to commit first-degree murder). Defendant asserts that
the conviction for conspiracy to commit first degree murder cannot
stand because the jury was not required to find that defendant and
Hyatt agreed to premeditate and deliberate. We disagree.
First-degree murder is "'the intentional and unlawful killing
of a human being with malice and with premeditation anddeliberation.'" State v. King, 353 N.C. 457, 484, 546 S.E.2d 575,
595 (2001) (quoting State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d
391, 407 (1997), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150
(1998)), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002, 122 S.
Ct. 1107 (2002). "Premeditation means that the act was thought out
beforehand for some length of time, however short . . . .
Deliberation means that the fatal act was executed with a fixed
design to kill notwithstanding defendant was angry or in an
emotional state at the time." State v. Hornsby, 152 N.C. App. 358,
364-65, 567 S.E.2d 449, 454 (2002) (internal quotation marks and
citations omitted), appeal dismissed and disc. review denied, 356
N.C. 685, 578 S.E.2d 316 (2003).
We believe that when a jury finds that a defendant has agreed
with another person to commit a murder, it necessarily finds
premeditation and deliberation as well. If a defendant plans and
enters into an agreement to commit murder, he also must have
thought about and considered his act before it was committed
(premeditation) and he must have had a design or plan to kill
(deliberation). There is no required time period to find
premeditation and deliberation, and these states of mind can arise
in the same amount of time it takes to devise and enter into an
agreement to kill another. State v. Sierra, 335 N.C. 753, 758, 440
S.E.2d 791, 794 (1994) ("[T]here must be evidence that a defendant
thought about the act for some length of time, however short,
before the actual killing; no particular amount of time is
necessary to illustrate that there was premeditation.") Adefendant cannot plan and agree with another to commit a crime
without also having premeditated and deliberated.
Our Supreme Court's decision in Gibbs supports this
conclusion. In Gibbs, the Court, in recognizing the crime of
conspiracy to commit felony murder, held:
[T]he [trial] court did not instruct the
jurors that an unintentional killing during a
felony would support a finding of first-degree
murder by reason of felony murder. Rather,
they were instructed that to find a conspiracy
to commit murder, they must first find an
agreement to commit first-degree murder. When
they found an agreement to kill, the jurors
eliminated the possibility that an
unintentional felony murder formed the basis
for the specific intent underlying the
conspiracy of which they convicted defendant.
335 N.C. at 52, 436 S.E.2d at 350 (emphasis added). This analysis
acknowledges that the finding of "an agreement to kill" is
equivalent to a finding of an agreement to commit an intentional
murder even in the absence of an instruction requiring the latter
finding. Similarly, we hold that the finding of an agreement to
kill is equivalent to the finding of an agreement to premeditate
and deliberate. See also id. at 48, 436 S.E.2d at 348 ("[W]e
conclude the defendant committed the offense of conspiracy to
commit murder when he, Doris, and Yvette agreed to kill Ann's
We note that other jurisdictions that have considered the
relationship of conspiracy to the elements of premeditation and
deliberation have reached a similar conclusion. The California
Supreme Court most recently addressed this issue in People v.Cortez, 18 Cal. 4th 1223, 77 Cal. Rptr. 2d 733, 960 P.2d 537 (1998)
[I]t logically follows that where two or more
persons conspire to commit murder _ i.e.,
intend to agree or conspire, [and] further
intend to commit the target offense of murder,
. . . _ each has acted with a state of mind
functionally indistinguishable from the mental
state of premeditating the target offense of
murder. The mental state required for
conviction of conspiracy to commit murder
necessarily establishes premeditation and
deliberation of the target offense of murder .
. . .
Id. at 1232, 77 Cal. Rptr. 2d at 738, 960 P.2d at 542 (internal
citations and quotation marks omitted). The court ultimately held
that "all conspiracy to commit murder is necessarily conspiracy to
commit premeditated and deliberated first degree murder . . . ."
Id. at 1237, 77 Cal. Rptr. 2d at 742, 960 P.2d at 546. See also
People v. Hammond, 187 Mich. App. 105, 108, 466 N.W.2d 335, 337
(1991) ("'Foreknowledge and plan are compatible with the
substantive crime of first-degree murder as both the crime of
conspiracy and the crime of first-degree murder share elements of
deliberation and premeditation. Prior planning denotes
premeditation and deliberation.'" (quoting People v. Hamp, 110
Mich. App. 92, 103, 312 N.W.2d 175, 180 (1981), leave to appeal
denied, 417 Mich. 1053 (1983))). But see United States v. Chagra,
807 F.2d 398 (5th Cir. 1986) (holding that a person could
impulsively plan and conspire to commit a murder without
premeditating), cert. denied, 484 U.S. 832, 98 L. Ed. 2d 66, 108 S.
Ct. 106 (1987). The Maryland Court of Appeals recently analyzed the decisions
of California, Michigan, and the Fifth Circuit, and concluded that
the jury's finding of a conspiracy necessarily results in a finding
of premeditation and deliberation:
We think that the California court in Cortez
and the Michigan court in Hammond were
entirely correct in their analysis _ that
where the charge is made and the evidence
shows that the defendant conspired to kill
another person unlawfully and with malice
aforethought, the conspiracy is necessarily
one to commit murder in the first degree (even
if a murder pursuant to the conspiracy never
occurs or, for whatever reason, amounts to a
second degree murder), as the agreement
itself, for purposes of the conspiracy, would
supply the necessary deliberation and
Mitchell v. State, 363 Md. 130, 149, 767 A.2d 844, 854 (2001). We
find the Maryland, Michigan, and California decisions persuasive.
Accordingly, we hold that the trial court's instruction
regarding conspiracy did not constitute error. The instructions
required the jury to find all of the necessary elements of
conspiracy to commit first degree murder. Additionally, because we
find no error in the instructions, defendant's claim for
ineffective assistance of counsel must also be rejected.
 Defendant's final assignment of error asserts that he
improperly received an aggravated sentence based upon judicially-
found aggravating factors in violation of Blakely v. Washington
542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). The State
argues that this claim is procedurally barred because defendant
failed to object at trial and that any error in not submitting theaggravating factors to the jury is harmless beyond a reasonable
The Supreme Court of this State addressed the impact of
in State v. Allen
, 359 N.C. 425, 615 S.E.2d 256 (2005). In
, the court held that "Blakely
applies to North Carolina's
Structured Sentencing Act" and that the portions of N.C. Gen. Stat.
§ 15A-1340.16 (2003) that permit the imposition of an aggravated
sentence based upon judicial findings of aggravating factors
"violate the Sixth Amendment as interpreted in Blakely
426-27, 615 S.E.2d at 258. The Court further held that the
harmless-error rule does not apply to sentencing errors under
because such errors "are structural and, therefore,
reversible per se
at 444, 615 S.E.2d at 269.
The holdings set forth in Allen
apply to "'cases
that are now pending on direct review.'" Id.
at 427, 615 S.E.2d at
258 (quoting State v. Lucas
, 353 N.C. 568, 598, 548 S.E.2d 712, 732
(2001), overruled in part by Allen
, 359 N.C. at 437, 615 S.E.2d at
265). Under Blakely
, the trial court erred in this case
by imposing an aggravated sentence based upon aggravating factors
found by the trial judge and not by the jury. Because such errors
are reversible per se
, we remand this case to the trial court for
a new sentencing hearing.
No error in conviction; remanded for resentencing.
Judges TIMMONS-GOODSON and CALABRIA concur.
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