Appeal by defendant from judgments entered 26 June 2003 by
Judge Susan C. Taylor in Union County Superior Court. Heard in the
Court of Appeals 18 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Four people, including defendant Andrea Deneen Crowder, were
involved in the armed robbery of a store, during which the store's
owner was shot and seriously injured. Defendant was convicted of
robbery with a dangerous weapon, conspiracy to commit robbery with
a dangerous weapon, and assault with a deadly weapon causing
serious injury. On appeal, defendant primarily challenges the
sufficiency of the evidence to prove (1) that she acted in concert
with respect to the robbery and assault charges and (2) that she
conspired to commit robbery with a dangerous weapon. We conclude
that defendant's multiple statements to the police provided ample
evidence to support her convictions. Because, however, the trial
court imposed an aggravated sentence based on facts not found by ajury, we hold defendant is entitled to a new sentencing hearing
under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124
S. Ct. 2531 (2004).
The State's evidence at trial tended to show the following.
Defendant had been going to Todd's Grocery, a store owned by Hal
Quincy Rape, Jr., to play the video poker machines multiple times
a week for several months prior to 13 November 1999. On 13
November 1999, Rape saw defendant playing video poker during the
day and then again later in the afternoon, when she returned with
James Kilgo, Jerry King, and Jesse McLendon.
Rape watched the four talk and play poker for about an hour,
at which point McLendon walked up to Rape, removed a sawed-off
shotgun from the sleeve of his jacket, and pointed it at Rape.
McLendon demanded the store's money box. After Rape told McLendon
where the box was, McLendon waited a moment, then lowered the
barrel of his gun slightly and shot Rape in the left knee. Rape
fell to the floor.
Kilgo gestured towards the money box while King ran out the
front door. McLendon then picked up the money box and walked out
of the store with defendant. Kilgo, who stayed in the store,
expressed shock that McLendon had shot Rape and called 911. King
had run to a nearby restaurant, where he also called 911 before
returning to the store. Kilgo and King then rendered basic
emergency assistance to Rape. Ultimately, however, doctors were
unable to repair Rape's leg, and it was amputated. Defendant spoke to the police on four separate occasions
regarding the events at Todd's Grocery. Although defendant
initially claimed she had nothing to do with the robbery, the
extent of her involvement increased with each statement. In the
end, defendant reported that she was with Kilgo and one of his
friends, known as "Ta Ha," when they began discussing robbing
either Todd's Grocery or a similar store nearby called Avondale
Grocery. Defendant explained:
It was me, [Kilgo], and Ta Ha, in Ta Ha's
black Honda Accord. We were going back and
forth between Avondale and Todd's Grocery,
[Rape's] place. [Kilgo] and Ta Ha started
talking about robbing either Todd's Grocery or
Avondale's poker places. [Kilgo] was talking
about being out of work and not having any
money. So at first it was only the three of
us who were involved in talking about the
Ta Ha told Kilgo and defendant that he knew someone _ McLendon _
who would be willing to actually do the robbery.
The three went to a laundromat where Ta Ha talked to McLendon
privately. From there, they went to an apartment complex.
McLendon joined them, carrying a bag that he said had a gun in it.
All four then returned to Kilgo's house and discussed the robbery.
According to defendant, "Ta Ha said that we all needed to wear a
ski mask. That's what they all wanted us to do but I refused to
wear a ski mask. I knew that [Rape] knew me from playing poker
machines down there. I told them that [Rape] would never suspect
me of being part of the robbery." At that point, Ta Ha had to
return home because he was on parole and had a curfew. Defendant stated that it was decided they would take two cars
to Todd's Grocery. According to defendant, McLendon "talked about
taking his gun with him because he didn't know what [Rape] might
have around down there." Defendant claimed, however, that "[t]he
plan was still just to go down to [Todd's Grocery] and [McLendon]
was just supposed to grab the money box and run. Nobody talked
about shooting anybody." Defendant repeated: "I swear that all we
had planned to do was for [McLendon] to grab the money box and run.
We, me Deneen, [Kilgo], Ta Ha, and [McLendon]."
Defendant was indicted for robbery with a dangerous weapon,
assault with a deadly weapon with intent to kill inflicting serious
injury, and conspiracy to commit robbery with a dangerous weapon.
At trial, defendant testified on her own behalf and claimed that as
they drove toward Todd's Grocery to perform the robbery, she asked
several times to be let out of the car because she "didn't want to
be in the middle of that." Defendant said that the men would not
let her out and threatened that if she "uttered a word," she would
be killed. She testified that she had wanted to warn Rape but
because she felt her life was in danger, "all [she] could do was
sit there . . . ."
The jury convicted defendant of each charge. During
sentencing as to the robbery charge, the trial court found as an
aggravating factor that Rape's injury was permanent and
debilitating and as a mitigating factor that defendant had a
support system in the community. After concluding that the
aggravating factor outweighed the mitigating factor, the courtimposed an aggravated sentence of 146 to 185 months imprisonment on
the charge of robbery with a dangerous weapon, followed by two
additional consecutive presumptive range sentences of 46 to 65
months imprisonment each for the conspiracy and assault charges.
Defendant's Motions to Dismiss
Defendant first contends that the trial court erred by denying
her motion to dismiss the charges for insufficient evidence. A
motion to dismiss for insufficiency of the evidence should be
denied if there is substantial evidence: (1) of each essential
element of the offense charged and (2) of defendant's being the
perpetrator of the offense. State v. Scott
, 356 N.C. 591, 595, 573
S.E.2d 866, 868 (2002). Substantial evidence is that amount of
relevant evidence necessary to persuade a rational juror to accept
a conclusion. Id.
at 597, 573 S.E.2d at 869.
On review of a denial of a motion to dismiss, this Court must
view the evidence in the light most favorable to the State, giving
the State the benefit of all reasonable inferences. Id.
573 S.E.2d at 869. Contradictions and discrepancies do not warrant
dismissal of the case, but rather are for the jury to resolve. Id.
A. Conspiracy to Commit Robbery with a Dangerous Weapon
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). Under North Carolina law "'no overt act is necessary to
complete the crime of conspiracy. As soon as the union of wills
for the unlawful purpose is perfected, the offense of conspiracy iscompleted.'" State v. Gibbs
, 335 N.C. 1, 47, 436 S.E.2d 321, 347
(1993) (quoting State v. Bindyke
, 288 N.C. 608, 616, 220 S.E.2d
521, 526 (1975)), cert. denied
, 512 U.S. 1246, 129 L. Ed. 2d 881,
114 S. Ct. 2767 (1994).
Defendant's repeated admissions that she was part of the
planning of the robbery are sufficient to establish the required
agreement. Although defendant argues that her testimony
"affirmatively denies entering into any agreement," it is well-
settled that, unless it is favorable to the prosecution, a
defendant's evidence is not to be considered when reviewing the
sufficiency of the evidence. State v. Taylor
, 337 N.C. 597, 604,
447 S.E.2d 360, 365 (1994).
Defendant contends that even if there was an agreement to
commit a robbery, there was no agreement to use a dangerous weapon.
Given, however, defendant's admissions regarding her knowledge that
McLendon had a gun, her awareness that the plan was for McLendon to
snatch the money box, and McLendon's statement to her that he was
going to bring the gun to the robbery because he did not know "what
[Rape] might have," a reasonable juror could conclude that
defendant agreed both to the robbery and to McLendon's use of a gun
in that robbery. As this Court explained in State v. Johnson
N.C. App. 1, 17, 595 S.E.2d 176, 185-86 (internal citations
omitted), appeal dismissed and disc. review denied
, 359 N.C. 194,
607 S.E.2d 658-59 (2004), when addressing a similar argument, "it
was not essential for the parties to expressly agree to use a
dangerous weapon prior to the robbery in order to submit a chargeof conspiracy to commit robbery with a dangerous weapon to the
jury. Rather, it was only essential that there be evidence that
the parties had a mutual, implied understanding to commit robbery
with a dangerous weapon."
(See footnote 1)
See also State v. Goldberg
, 261 N.C.
181, 202, 134 S.E.2d 334, 348 ("'It is not essential that each
conspirator have knowledge of the details of the conspiracy or of
the exact part to be performed by the other conspirators in
execution thereof; nor is it necessary that the details be
completely worked out in advance to bring a given act within the
scope of the general plan.'" (quoting 15 C.J.S., Conspiracy
998)), cert. denied
, 377 U.S. 978, 12 L. Ed. 2d 747, 84 S. Ct. 1884
(1964), overruled on other grounds by News & Observer Publ'g Co. v.
, 312 N.C. 276, 322 S.E.2d 133 (1984). We hold, therefore,
that the evidence was sufficient to submit the conspiracy to commit
robbery with a dangerous weapon charge to the jury.
B. Robbery with a Dangerous Weapon and Assault with a Deadly
Weapon Causing Serious Injury
Defendant next contends that the State presented insufficient
evidence to demonstrate that she was acting in concert with
McLendon and, therefore, guilty of robbery with a dangerous weapon
and assault with a deadly weapon causing serious injury. For a
defendant to be convicted of the underlying crime on acting in
concert grounds, the defendant must: (1) be "'present at the scene
of the crime,'" and (2) "'act together with another who does theacts necessary to constitute the crime pursuant to a common plan or
purpose to commit the crime.'" State v. Lundy
, 135 N.C. App. 13,
18, 519 S.E.2d 73, 78 (1999) (quoting State v. Moore
, 87 N.C. App.
156, 159, 360 S.E.2d 293, 295-96 (1987), disc. review denied
N.C. 477, 364 S.E.2d 664 (1988)), appeal dismissed and disc. review
, 351 N.C. 365, 542 S.E.2d 651 (2000). "[I]f two or more
persons act together in pursuit of a common plan or purpose, each
of them, if actually or constructively present, is guilty of any
crime committed by any of the others in pursuit of the common plan.
This is true even where the other person does all the acts
necessary to commit the crime." State v. Abraham
, 338 N.C. 315,
328-29, 451 S.E.2d 131, 137 (1994) (internal citations and
quotation marks omitted).
Since defendant admitted she was present at the scene of the
crime, the remaining issue is whether the State presented
sufficient evidence that defendant acted together with McLendon
pursuant to a common plan or purpose. The State's evidence showed
that defendant participated in the planning of the robbery, went
with others to "scope these poker houses out to see which one
[McLendon] was going to rob," and accompanied the group to locate
McLendon before the robbery. After the robbery, Ta Ha directed
defendant "to go down to Willow Oaks Apartments and find out how
much money [McLendon] got." Defendant then went with Kilgo's
girlfriend to bring McLendon back to Ta Ha. A reasonable juror
could find, based on this conduct, that defendant was acting in
concert with McLendon and the others. See Johnson
, 164 N.C. App.at 12-13, 595 S.E.2d at 183 (evidence sufficient to show defendant
acted in concert to commit robbery with a dangerous weapon when he
and two co-defendants planned to rob someone by having the unarmed
defendant frighten victims, but the co-defendant instead menaced
the victims with a shotgun, while defendant took the victims'
money); State v. Jones
, 157 N.C. App. 110, 115-16, 577 S.E.2d 676,
680 (2003) (evidence sufficient to show the defendant acted in
concert to commit robbery with a dangerous weapon when he and two
co-defendants planned to rob a convenience store, the defendant was
told prior to the robbery one of the co-defendants had a gun, the
defendant walked around the store prior to the robbery, and the
defendant waited in the car as the "getaway driver").
Defendant nevertheless argues that, even if she acted in
concert to commit the robbery, she cannot be found guilty of the
assault because she did not know McLendon was going to shoot Rape.
The doctrine of acting in concert, however, permits a jury to find
a defendant guilty not only for the crime originally intended, but
also for any other crime committed in pursuit of the common
purpose. See State v. Thomas
, 325 N.C. 583, 595, 386 S.E.2d 555,
561 (1989) ("Under the doctrine of acting in concert when two or
more persons act together in pursuance of a common plan or purpose,
each is guilty of any crime
committed by any other in pursuance of
the common plan or purpose." (emphasis added)); State v. Holadia
149 N.C. App. 248, 258, 561 S.E.2d 514, 521-22 (concluding that
defendant, who originally intended to commit robbery, could be
found guilty of assault with a deadly weapon as well where he actedin concert with another as to the robbery, but did not intend that
the victim be shot), disc. review denied
, 355 N.C. 497, 562 S.E.2d
432 (2002). Since defendant has not argued that the assault was
not committed in pursuit of the intended robbery _ and we can see
no basis for such a contention _ defendant could be convicted of
the assault. Accordingly, this assignment of error is overruled.
The Trial Court's Failure to Instruct on Withdrawal
Defendant next contends the trial court erred in refusing to
instruct the jury regarding defendant's claim she withdrew from the
conspiracy. At the charge conference, counsel for defendant
There's one [more instruction] that I don't _
I'm not sure. I thought in looking at the
instructions I saw _ and I thought maybe I was
going back to it. Somewhere in the back of my
mind there is an instruction on conspiracy or
acting in concert, when one withdraws before.
Do you see anything on that? I may have to
look tonight on that.
The trial court stated it would consider the issue if defendant
presented something to the court. At the end of the charge
conference, defense counsel again noted that he would "look for an
instruction on withdrawal" overnight. Defense counsel, however,
never made any other request for an instruction on withdrawal from
Since there is no pattern jury instruction on the defense of
withdrawal, a request for such an instruction must be in writing.
See State v. McNeill
, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997)
(holding that when a defendant requests special jury instructions
not provided in the pattern instructions, the request must besubmitted in writing to the trial judge at or before the charge
conference), cert. denied
, 522 U.S. 1053, 139 L. Ed. 2d 647, 118 S.
Ct. 704 (1998). Since defendant did not submit a written request,
defendant has failed to preserve this issue for appellate review.
N.C.R. App. P. 10(b)(1).
Nevertheless, our Supreme Court "has held on numerous
occasions that it is the duty of the trial court to instruct the
jury on all of the substantive features of a case. This is a duty
which arises notwithstanding the absence of a request by one of the
parties for a particular instruction. All defenses arising from
the evidence presented during the trial constitute substantive
features of a case and therefore warrant the trial court's
instruction thereon." State v. Loftin
, 322 N.C. 375, 381, 368
S.E.2d 613, 617 (1988) (internal citations omitted). When,
however, a defendant fails to specifically request an otherwise
warranted instruction, the trial court's failure to give the
instruction is reviewed only for plain error. Id.
at 381-82, 368
S.E.2d at 617.
In this case, defendant has neither relied upon plain error in
her assignment of error nor argued it in her brief. Our Supreme
Court has held that, in those circumstances, a defendant is "not
entitled to plain error review of [the] issue." State v. Dennison
359 N.C. 312, 313, 608 S.E.2d 756, 757 (2005). This assignment of
error is, therefore, overruled.
The Trial Court's Aiding and Abetting Instruction
Defendant also assigns error to the trial court's instruction
to the jury on aiding and abetting, arguing that this instruction
was not requested by either the State or the defense and was
unsupported by the evidence. The day after counsel for defendant
had indicated he would look for an instruction on withdrawal,
defense counsel, instead of submitting a withdrawal instruction,
requested that the trial court give paragraph five of the North
Carolina Pattern Instructions on aiding and abetting. That portion
of the aiding and abetting instruction provides:
A person is not guilty of a crime merely
because he is present at the scene, even
though he may silently approve of the crime or
secretly intend to assist in its commission.
To be guilty he must aid or actively encourage
the person committing the crime, or in some
way communicate to this person his intention
to assist in its commission.
N.C.P.I._-Crim. 202.20, ¶ 5 (1998).
The State objected, and the trial judge declined to give only
one paragraph of the aiding and abetting instruction. When the
trial judge then asked the parties how they felt about her giving
the entire aiding and abetting instruction, the State again
objected on the ground that its theory of the case had been acting
in concert and not aiding and abetting. Defense counsel agreed
that the State's case had been premised on acting in concert, but
stated that he felt paragraph five of the aiding and abetting
instruction nevertheless represented "the law of North Carolina."
The judge then repeated that she would not give that single
paragraph alone as an instruction. At the close of the charge conference, after the jury had
returned, the judge called counsel up for an unrecorded bench
conference, after which the judge whispered to the court reporter
that she would give the entire aiding and abetting instruction.
Defendant did not thereafter object. Indeed, after instructing the
jury, the judge specifically inquired whether defense counsel had
"any specific requests for corrections or additions." Defense
counsel responded that he did not.
We conclude that defendant failed to preserve this issue for
appellate review. N.C.R. App. P. 10(b)(1). It was defendant who
initially sought to use a portion of the challenged aiding and
abetting instruction, and we cannot determine whether defendant, in
the unrecorded bench conference, concurred with or objected to the
full instruction. After the court made its final determination to
give the full instruction, defendant did not object. Indeed, even
after the court finished instructing the jury with the challenged
instruction, defendant did not express any objection. We may not,
therefore, review this issue. State v. Hamilton
, 338 N.C. 193,
208, 449 S.E.2d 402, 411 (1994) ("Because defendant did not timely
object to the trial court's instructions when the trial court,
outside the presence of the jury, inquired as to whether either
party had any objections with regard to the jury charge, defendant
did not properly preserve this assignment of error for appellate
review . . . ."). Accordingly, this assignment of error is
The Trial Court's Instruction on Flight
As a final challenge to the jury instructions, defendant
assigns error to the trial court's decision to instruct the jury on
defendant's alleged flight. "A trial court may properly instruct
on flight where there is some evidence in the record reasonably
supporting the theory that the defendant fled after the commission
of the crime charged. However, mere evidence that defendant left
the scene of the crime is not enough to support an instruction on
flight. There must also be some evidence that defendant took steps
to avoid apprehension." State v. Lloyd
, 354 N.C. 76, 119, 552
S.E.2d 596, 625-26 (2001) (internal citations and quotation marks
In this case, when the evidence is viewed in the light most
favorable to the State, the State presented evidence that defendant
did more than merely leave the scene of the crime. The State's
evidence indicated that defendant knew Rape and his children
personally. Indeed, it was only because Rape "would never suspect
[her] of being part of the robbery" that defendant refused to wear
a ski mask. After the shooting, however, defendant did not attempt
to render any kind of emergency assistance to Rape _ despite the
fact that both King and Kilgo did _ and instead defendant "took off
running." While defendant contends that she in fact returned after
the shooting, Rape testified that he never saw defendant again.
Similarly, the defendant in State v. Anthony
, 354 N.C. 372,
555 S.E.2d 557 (2001), cert. denied
, 536 U.S. 930, 153 L. Ed. 2d
791, 122 S. Ct. 2605 (2002), after shooting his wife and herfather, "immediately entered his car and quickly drove away from
the crime scene without rendering any assistance to the victims or
seeking to obtain medical aid for them." Id.
at 425, 555 S.E.2d at
591. Further, he made no effort to flag down a police officer he
passed while leaving the scene of the shooting. The Supreme Court
held that an instruction on flight was proper and that this
evidence, viewed in the light most favorable to the State, was
evidence that "defendant did more than merely leave the scene of
the crime." Id.
Defendant's conduct in this case is consistent with the
conduct at issue in Anthony
. Defendant's choice to run away
without making any attempt to obtain medical assistance for Rape,
knowing that Rape was badly injured, supports the State's position
that defendant took affirmative "'steps to avoid apprehension'" and
not be present when law enforcement arrived. Lloyd
, 354 N.C. at
119, 552 S.E.2d at 625-26 (quoting State v. Thompson
, 328 N.C. 477,
490, 402 S.E.2d 386, 392 (1991)
). See also State v. Roberts
N.C. App. 690, 698, 522 S.E.2d 130, 135 (1999) (flight instruction
was proper where, after breaking and entering, defendant left the
home after being confronted by a resident), appeal dismissed and
disc. review denied
, 351 N.C. 367, 543 S.E.2d 142 (2000). The mere
fact that defendant, of her own initiative, later sought out law
enforcement and provided them with her version of events does not
necessarily render a flight instruction improper. See Lloyd
N.C. at 119-20, 552 S.E.2d at 626 (flight instruction was proper
when defendant quickly left crime scene without providing medicalassistance to the victim, even though the defendant soon thereafter
called the police to turn himself in). Accordingly, this
assignment of error is overruled.
Defendant's Aggravated Sentence
Finally, defendant contends the trial court violated her Sixth
Amendment right to a trial by jury, under Blakely v. Washington
542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), when the
court based her sentence for the robbery conviction on aggravating
factors not found by a jury beyond a reasonable doubt. We agree.
Our Supreme Court addressed the impact of Blakely
in State v.
, 359 N.C. 425, 615 S.E.2d 256 (2005), holding that "[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed presumptive range must be
submitted to a jury and proved beyond a reasonable doubt." Id.
437, 615 S.E.2d at 265 (citing Blakely
, 542 U.S. at 303-04, 159 L.
Ed. 2d at 413-14, 124 S. Ct. at 2537; Apprendi v. New Jersey
U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362
(2000)). The failure to do so constitutes structural error and is
reversible per se
at 449, 615 S.E.2d at 272.
Because the trial court in this case imposed a sentence in the
aggravated range for the robbery with a dangerous weapon conviction
based on an aggravating factor not found by a jury, we must vacate
that sentence and remand for a new sentencing hearing in accordance
. Since the sentences for the two remaining
convictions _ conspiracy and assault with a deadly weapon causingserious injury _ were in the presumptive range, those sentences are
not in error.
No error in part; remanded for a new sentencing hearing in 99
Judges WYNN and McGEE concur.
Report per Rule 30(e).