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Pleading General Crimes and Theories of Liability

Questions frequently arise about the requirements to charge the various types of general crimes like attempt, conspiracy, and accessory. A related question is whether the theory of liability, such as acting in concert or aiding and abetting, must be specifically pled. For defenders new to felony work, it can come as an unwelcome surprise to discover the jury is being instructed on an unexpected theory not identified in the pleading. This post lays out the basics for pleading general crimes and theories of liability of participants in the crime and links to the jury instructions for each.

Solicitation must be pled, unless the defendant is charged with accessory before the fact to murder. Solicitation is asking someone else to commit a crime with the intention that the person solicited will perform the criminal act. It is its own crime and generally must be pled. An exception exists if the defendant is charged with accessory before the fact to a completed murder, a theory of liability discussed below. Then, solicitation to commit murder becomes a lesser-included offense of accessory before the fact. State v. Westbrooks, 345 N.C. 43 (1996). Solicitation is not a lesser included offense of murder by acting in concert, another theory for holding a person liable for a completed offense. State v. Kemmerlin, 356 N.C. 446 (2002). The pattern jury instruction on solicitation is N.C.P.I—Criminal 201.20.

Accessory before the fact need not be pled. An accessory before the fact is one who assists the principal actor in completing the crime but is not actually present at the scene of the crime. An accessory before the fact is treated as equally culpable with the principal defendant and is punished at the same level of the underlying crime pursuant to G.S. 14-5.2 (except in capital cases). Because this is a theory of liability and not a distinct crime, it need not be specifically pled. State v. Surrett, 217 N.C. App. 89 (2011). Defenders should be aware of this in cases where the evidence supports accessory before the fact and be prepared to argue at charge conference whether the evidence supports the instruction (and where it does, to argue against the merits of that theory the jury). The pattern instruction for accessory before the fact is N.C.P.I.—Crim. 202.30.

Same with aiding and abetting and acting in concert. Aiding and abetting is encouraging or helping someone else commit a crime where the assistance from the aider and abettor contributes to the commission of the crime. Acting in concert is when a person is actually or constructively present at the scene of the crime and acts with another pursuant to a shared plan to accomplish the crime. Both of these are theories of liability and not distinct crimes, and both will usually be punished as a principal (there are some statutory exceptions to the same punishment rule, such as for aiding and abetting impaired driving under G.S. 179(f1)). Thus, a defendant charged with the principal offense may be convicted of that offense under a theory that the defendant aided and abetted another actor or that he or she acted in concert with another person to effectuate the crime. There must be evidence to support a jury instruction on acting in concert or aiding and abetting—the State doesn’t get the instruction without some proof of facts supporting those theories. But, where the evidence shows the defendant either acted in concert or aided and abetted another to commit a crime, the jury may be instructed on those theories even though the indictment for the main crime does not specifically allege these theories. The pattern instructions for acting in concert and aiding and abetting are N.C.P.I.—Crim. 202.10 and 202.20, respectively.

Where the State does allege a specific theory of liability like acting in concert, it will not be limited to that theory and the jury may be instructed on another theory (such as aiding and abetting) if the evidence supports such an instruction. See State v. Estes, 186 N.C. App. 364 (2007) (no error to instruct jury on aiding and abetting where indictment alleged acting in concert; specific theory of liability in indictment is mere surplusage).

Accessory after the fact must be pled. Accessory after the fact is assisting someone who has committed a crime escape detection or punishment while knowing that the other person committed a crime. Unlike accessory before the fact, accessory after the fact is its own crime with its own elements and must be pled. It is not automatically charged by charging the main underlying crime and is not a lesser-included offense of any related substantive offense. It is usually punished at two levels lower than the substantive offense. See G.S. 14-7. The pattern instruction for accessory after the fact is N.C.P.I—Crim. 202.40.

Conspiracy must be pled. Conspiracy is an agreement between two or more people to commit a crime with intent for the agreement to be fulfilled. Like accessory after the fact and solicitation (in most cases), it is its own crime and must be pled separately from any related substantive felony. The punishment is typically one level lower than the substantive offense. See G.S. 14-2.4. The evidence may support conspiracy and another theory of principal liability like acting in concert. Indeed, the same acts that support acting in concert or aiding and abetting might also support a conspiracy charge in addition to the substantive offense. But, if the State wants that extra charge in this situation, the conspiracy must be specifically pled. It is a separate crime with different elements than the underlying felony and the defendant is entitled to notice that conspiracy is a crime at issue in the case. The pattern instruction for conspiracy is N.C.P.I.—Crim. 202.80.

Attempt need not be pled. Under G.S. 15-170 and State v. Slade, 81 N.C. App. 303 (1986), an indictment that charges the completed offense is sufficient to cover an attempt of the charged completed offense. In the words of the Slade court: “By statute in North Carolina, an indictment charging a completed offense is deemed sufficient to support a conviction for an attempt to commit the crime charged.” Id. at 306. An interesting and unusual corollary of this rule is that where the defendant is charged with only the attempt but the evidence at trial shows a completed offense, the evidence is sufficient to convict on the attempt. State v. Baker, 369 N.C. 586 (2017). The pattern jury instruction for general attempts is in N.C.P.I.—Criminal 201.10 (note that attempted first degree murder has its own pattern instruction, here).

Happy Holidays. This is my last post of the year. As I reflect on the last two years here at the SOG, I remain extraordinarily grateful for the talented colleagues with whom I have the pleasure of working, and for the institution that is committed to improving the government of North Carolina and the lives of its citizens. I’m also thankful for the various court actors around the state striving every day to ensure justice is done. To all of the readers of this blog, thanks for your continued support. I hope everyone has a safe and happy holiday season. See you back here in 2020!

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