in the Court of Appeals 29 October 2019.
by Defendant from judgments entered 24 September 2018 by
Judge Imelda Pate in Johnston County No. 16 CRS 56785
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Neil Dalton, for the State.
R. Parish for Defendant-Appellant.
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 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.
FACTUAL AND PROCEDURAL BACKGROUND
evidence presented at trial tended to show the following:
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.
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.
time of the robbery, Johnston County Sheriff's Deputy
Adriane Stone was driving a patrol car throughout the county.
Sometime after the armed robbery 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.
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.
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.
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.
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.
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 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.
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.
was indicted on 7 November 2016 on charges of attempted first
degree murder and conspiracy to commit attempted first degree
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.
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
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 ...