STATE OF NORTH CAROLINA v.ROBERT DENNIS DIXON

In 1987, defendant’s father, Cardwell Dixon (“Cardwell”) married Sara Dixon

(“Sara”), six months after defendant’s mother passed away. Cardwell owned a 41

acre piece of property (“the property”), and built a home where he and Sara lived

(“2033 McCray Road”). Cardwell also helped defendant purchase a home, and

allowed him to place his home on the property.

In 2004, Cardwell suffered a series of strokes, developed dementia, and moved

into Alamance Health Care (“AHC”), a nursing facility. In 2005, Cardwell was

declared incompetent, and Sara was appointed guardian of the person. Nelson

Richardson (“Richardson”), an attorney, handled Cardwell’s estate, which included

two rental homes, a number of outbuildings, an airplane landing strip, two small

hangars, a cabin, a Cessna airplane, a boat, and an old steel Leonard storage building.

Cardwell’s monthly expenses at AHC were approximately $6,000, causing a

$4,200 deficit each month. Defendant resented this depletion of the estate’s assets

because Sara placed Cardwell at AHC rather than caring for him at home. Defendant

believed that Sara should have paid Cardwell’s expenses from her personal funds,

not from his inheritance.

STATE V. DIXON

Opinion of the Court

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Tension intensified between defendant and Sara following the sale of

Cardwell’s two rental properties, and defendant’s inability to secure a loan to

purchase a small portion of the property where his home was located. Defendant

believed that Cardwell’s estate, excluding 2033 McCray Road, was his inheritance,

and that he should not have to purchase the land where his home was located.

Defendant threatened to file a lawsuit to have Richardson removed as guardian.

Defendant told Jamie Blaylock (“Blaylock”), Thomas Friday (“Friday”), and a

neighbor, that he would pay someone $5,000 to kill Sara.

Approximately two months before Sara’s death, defendant asked Friday to

arrange Sara’s murder, for $10,000, so that defendant would not know the person

who was going to kill Sara. Friday hired Matthew Fields (“Fields”) to kill Sara.

Defendant also provided Friday with a detailed map of Sara’s residence that included

the locations of the motion sensor lights, how to evade them, and instructions

regarding how to exit the property following the murder.

Following the agreement between defendant and Friday, defendant was

contacted by Richardson. Richardson stated that he had to sell the property and the

Cessna for Cardwell to be eligible to receive Medicaid, since the funds to pay

Cardwell’s bills were almost gone. Sara agreed to sell the property and the Cessna.

Defendant was still living on the property, and began to worry about where he would

live since he would probably be evicted upon the sale of the property. Defendant

STATE V. DIXON

Opinion of the Court

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responded by indicating his distrust of Sara, and stating that he had “a feeling [that

things were] about to get very ugly.” Defendant believed that the only assets that

should be sold were Sara’s vehicle and 2033 McCray Road.

After Sara agreed to sell the property and the Cessna, defendant contacted

Friday and instructed him that it was “crunch time.” “Crunch time” was the signal

to Friday that it was time to carry out Sara’s murder. In the days prior to the murder,

Friday and Fields exchanged numerous phone calls, and staked out 2033 McCray

Road. Friday also exchanged numerous calls with defendant.

On 28 November 2007, Friday and Fields broke into Sara’s home at 2033

McCray Road. They eluded the motion sensor lights, and went straight to Sara’s

bedroom, relying on defendant’s map. Fields shot Sara twice with a 9mm Makarov

pistol loaded with .380 ammunition, and silenced with shop towels. When Friday and

Fields left 2033 McCray Road, they took a wrong turn and drove Friday’s truck into

a large dip in the road, rendering the truck incapable of being driven. Friday and

Fields then ran to defendant’s house, where they asked defendant to drive them to

Gibsonville to pick up Friday’s car-hauler. During the drive to Gibsonville, Friday

informed defendant that Sara had been murdered, and that he had witnessed the

event. Defendant paid Friday $2,000 cash, and an additional $1,500. Once law

enforcement investigated defendant about Sara’s death, no further funds were paid

to Friday.

STATE V. DIXON

Opinion of the Court

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Two days later, on 30 November 2007, Sara’s neighbors discovered her body.

She was lying in her bed, and had suffered two gunshot wounds, one to her left eye

and one to her left ear. The .380 caliber bullets found in her head and on her pillow

were tested, and were consistent with having been fired from a 9mm Makarov.

Defendant was arrested and indicted for first-degree murder with malice,

premeditation and deliberation; felony conspiracy to commit first-degree murder; and

solicitation to commit first-degree murder. He was later also indicted for first-degree

burglary.

At trial in Alamance County Superior Court, defendant requested that the jury

be instructed on the charge of solicitation of murder, contending that this constituted

a lesser included offense of first-degree murder based upon a theory of aiding and

abetting. The trial court denied this request.

The jury returned a verdict finding defendant guilty of first-degree

premeditated murder, under a theory of aiding and abetting; first-degree murder

pursuant to the felony murder rule, with the underlying felony of first-degree

burglary; conspiracy to commit murder; and first-degree burglary under a theory of

aiding and abetting. The jury also found aggravating and mitigating circumstances.

The trial court sentenced defendant to life imprisonment without parole.

Defendant appeals.

II. Standard of Review

STATE V. DIXON

Opinion of the Court

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“[Arguments] challenging the trial court’s decisions regarding jury instructions

are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675

S.E.2d 144, 149 (2009).

“An instruction on a lesser-included offense must be given only if the evidence

would permit the jury rationally to find defendant guilty of the lesser offense and to

acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771

(2002).

III. Analysis

In his sole argument on appeal, defendant contends that the trial court erred

in denying his request for an instruction on the lesser included offense of solicitation

to commit murder. We disagree.

Defendant was found guilty of first-degree murder on the basis of malice,

premeditation, and deliberation under a theory of aiding and abetting; first-degree

murder pursuant to the felony murder rule, with the underlying felony of first-degree

burglary; conspiracy to commit murder; and first-degree burglary under a theory of

aiding and abetting. Defendant only challenges the lower court’s decision to deny

defendant’s request for an instruction on solicitation of murder as a lesser included

offense of first-degree murder under a theory of aiding and abetting.

“We have previously defined the crime of solicitation as ‘counseling, enticing

or inducing another to commit a crime.’ ” State v. Kemmerlin, 356 N.C. 446, 475, 573

STATE V. DIXON

Opinion of the Court

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S.E.2d 870, 890 (2002) (quoting State v. Furr, 292 N.C. 711, 720, 235 S.E.2d 193, 199,

cert. denied, 434 U.S. 924, 54 L.Ed.2d 281 (1977)). “The offense of solicitation is

complete with the act of solicitation, even though there never could be acquiescence

in the scheme by the one solicited, and even where the solicitation is of no effect.”

State v. Tyner, 50 N.C. App. 206, 207, 272 S.E.2d 626, 627 (1980) (citations omitted).

Our Supreme Court has held that solicitation to commit murder is a lesser

included offense of first-degree murder as an accessory before the fact. State v.

Westbrooks, 345 N.C. 43, 56, 478 S.E.2d 483, 491 (1996). In the instant case, however,

the State explicitly did not proceed under a theory of accessory before the fact, but

under a theory of aiding and abetting.

“An aider is one who is present at the time and place of the offense and renders

aid to the perpetrator, without actually committing the offense. An abettor is one who

gives aid and comfort to the perpetrator, or one who commands, advises, instigates

or encourages another to commit the offense.” State v. Graham, 303 N.C. 521, 524,

279 S.E.2d 588, 591 (1981) (citations omitted).

At trial, defendant argued with respect to a solicitation instruction as follows:

MR. ALFORD: Your Honor, this isn't filed. We're asking for solicitation as a lesser included. It would be a lesser included to aiding and abetting, Your Honor.

THE COURT: Well, aiding and abetting is not an offense. Aiding and abetting is a theory of an offense.

MR. ALFORD: A lesser included of the theory, Your Honor.

STATE V. DIXON

Opinion of the Court

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THE COURT: So you say solicitation to commit murder is a lesser included offense of murder?

MR. ALFORD: When you're going under aiding and abetting under the idea of recurring, yes, sir.

THE COURT: I'll hear you on your request.

MR. ALFORD: Me, Your Honor?

THE COURT: Yes, sir.

MR. ALFORD: No further evidence. No further argument. We would contend that [solicitation] would be a lesser included offense of the first degree murder.

(Pause in proceedings.)

THE COURT: So if the jury found that the defendant solicited Thomas Friday to commit the murder of Sara Dixon and even though the jury may also find that Thomas Friday did commit the murder of Sara Dixon, that the defendant should be not convicted of anything but the solicitation?

MR. ALFORD: Can you repeat that?

THE COURT: Well, I'm saying, you say it's a lesser included because of a theory of aiding and abetting. That would be like the jury finding he aided and abetted by encouraging, soliciting -- your language soliciting -- Thomas Friday to murder Sara Dixon but leave off that Thomas Friday actually murdered Sara Dixon. Meaning, if the jury -- but there's no evidence to negate that Thomas Friday murdered Sara Dixon or acting with Matthew Fields.

MR. ALFORD: I wouldn't disagree with the Court on that.

STATE V. DIXON

Opinion of the Court

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The distinction between first-degree murder with premeditation and

deliberation on the basis of aiding and abetting, which requires that one “commands,

advises, instigates or encourages another to commit the offense[,]”and solicitation,

which merely requires “counseling, enticing or inducing another to commit a crime[,]”

is that under an aiding and abetting theory of a crime, the State must show that the

crime was specifically committed, and under solicitation, the State need only show

that the defendant enticed or induced someone to commit a crime, irrespective of

whether the crime was ultimately committed.

In order to demonstrate the trial court’s error, defendant has the burden of

showing that the jury could have returned a verdict finding defendant guilty of the

lesser offense, while acquitting him of the greater. Millsaps, 356 N.C. at 561, 572

S.E.2d at 771. Here, however, that is quite impossible, for the simple reason that the

murder was, in fact, committed as a direct result of defendant’s solicitation. If the

jury found defendant guilty of soliciting a murder that actually occurred, he would

necessarily be found guilty of aiding and abetting that murder, supporting a

conviction for first-degree murder. He could only be acquitted of first-degree murder

and convicted of solicitation in the absence of evidence that a murder resulted from

his solicitation. In the instant case, the overwhelming evidence at trial showed that

defendant enticed Friday to commit the murder, and that Friday in fact did so as a

direct result of that enticement.

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