           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D17-4440
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CHARLES T. NEWCOMB,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Columbia County.
Wesley R. Douglas, Judge.

                       September 9, 2019


ROWE, J.

    Charles T. Newcomb appeals his conviction for conspiracy to
commit first-degree murder. He raises four arguments for reversal.
We affirm on all four arguments and write only to address his
argument challenging the trial court’s denial of his motion for
judgment of acquittal.

                          Background

     The charges against Newcomb stemmed from an FBI
investigation into the activities of the Ku Klux Klan in the St.
Augustine area. The FBI’s domestic terrorism task force recruited
a civilian confidential informant to infiltrate the Klan. The CI
joined one of the three area chapters and obtained a high-level
security position in the Klan by inflating his military credentials.

     At a Klan gathering in December 2014, Newcomb, David
Moran, and Thomas Driver approached the CI. The men asked the
CI to help them plan the murder of a man who had assaulted
Driver. Based on this conversation, the FBI equipped the CI with
electronic devices to record his interactions with the three men.
The recordings of several interactions led to charges against the
three men for conspiracy to commit first-degree murder. Driver
entered a plea. Newcomb and Moran went to trial.

                               Trial

     At trial, the CI testified that Newcomb, Moran, and Driver
first approached him about the murder plot during a Klan
gathering. Moran told the CI that Driver needed his help. Driver
explained that he was a corrections officer and that a man bit him
during an altercation in the prison. Driver showed the CI a picture
of the man. Driver said that the man tested positive for Hepatitis
C. Blood tests first showed that the man transferred the disease
to Driver. Driver learned months later that the test produced a
false positive. He had to undergo months of unnecessary blood
work.

     Newcomb and Moran told the CI that they wanted him to do
something about Driver’s attacker, who had been released from
prison. The CI asked Moran and Driver if he should beat up the
man. They were not interested in a beating. The CI asked if they
wanted the man “six feet under.” Moran and Driver looked at each
other, and then responded affirmatively. Next, the CI asked
Newcomb if he wanted the man “six feet under,” and Newcomb had
the same response. The CI reported the conversation to the FBI.
The FBI asked the CI to record future conversations with
Newcomb, Moran, and Driver. Recordings of the interactions that
follow were admitted into evidence and played for the jury.

    First, the CI and Newcomb discussed what they needed to do
about the attack on Driver. Newcomb called the attack “attempted
murder.” Newcomb expressed that he and Moran wanted to handle
the situation without Driver’s involvement. He stated that any

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action taken against the attacker should occur when Driver was at
work so Driver would have an alibi. Newcomb volunteered to help
locate the man and stated that he “could walk right up and put
him out of his misery.”

     Two weeks later, Newcomb asked the CI if he was available
the next weekend to take care of Driver’s problem. Newcomb told
the CI that Moran said that he would join them. The CI agreed to
join them. The CI also reported to Newcomb that he found the
attacker’s home in Palatka and that a river was nearby. Newcomb
asked if they were “just going to snatch him up right there and
take him to the river or how are we going to work this?” He also
told the CI that he planned to buy several items to protect them
from contracting Hepatitis C from the attacker.

     The next weekend, the CI arranged to meet Moran and
Newcomb at Newcomb’s house. The three planned to drive to
Palatka to find Driver’s attacker. The CI arrived at Newcomb’s
house before Moran. Newcomb informed the CI that he cleaned
some ammunition so it would not have any fingerprints on it. He
also revealed that he had a cooler containing several bottles of his
wife’s insulin. He proposed killing Driver’s attacker by injecting
him with insulin, then dumping the body into the nearby river. He
thought they should bring a fishing pole to place near the man’s
body to make it appear that the man died while fishing.

     When Moran arrived, the three men departed in the CI’s car.
The FBI had equipped the car with recording devices. The recorded
conversation revealed Newcomb sharing with Moran the plan to
inject Driver’s attacker with insulin and to stage his death.
Newcomb said that he had two needles full of insulin ready to go
in case they found the man. He further expressed a willingness to
shoot Driver’s attacker, “I mean if we have to do pow pow, we will,
but I was trying to do it quietly, calls less attention to us.” As they
approached Palatka, Moran pondered whether they ought to turn
off their cell phones.

     When the men arrived, they observed an unusually large
police presence in the area. The FBI arranged the show of force to
protect Driver’s attacker from the men. The men abandoned their
plans and drove back to Newcomb’s home.

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     After they returned home, the CI asked Driver if he still
wanted the problem resolved. Driver wanted his attacker
terminated. The CI told Driver he would hire a professional to take
care of the problem and asked about Driver’s work schedule “for
alibi purposes.”

     The CI then reported back to the FBI. The FBI contacted
Driver’s attacker and obtained his cooperation to take a
photograph that would make it appear that he had died from a
gunshot wound to the chest. The FBI gave the photograph to the
CI to prove that the attacker was dead.

     The CI then showed the photograph to Moran, Newcomb, and
Driver. Newcomb voiced his satisfaction with the apparent
murder. Driver stated that the attacker’s death was what he
wanted and that he was happy with the outcome. The CI then
showed the photograph to Moran. Moran exclaimed: “Ha-ha, oh,
shit. Ha-ha, oh, shit. I love it . . . . good job.” He boasted that the
attacker’s death resulted from a group effort between the CI,
Newcomb, Driver, and himself. This was the last of the recorded
conversations.

     Besides the recorded conversations, the State presented
testimony from the medical examiner. He confirmed that the plan
to inject the attacker with insulin likely would have caused death.
He opined that injecting a non-diabetic person with two vials of
insulin would cause death and it would be difficult to determine
the cause of death during an autopsy. The State closed its case.

    Newcomb’s counsel moved for a judgment of acquittal,
asserting that the evidence did not show that Newcomb conspired
with Moran and Driver to kill Driver’s attacker. He also argued
that there was no conspiracy because the CI was the only person
who planned to commit the essential act of the conspiracy—
murder. The motion was denied.

    Newcomb’s counsel renewed the motion for judgment of
acquittal at the close of the defense’s case. The trial court denied
the motion. The jury found Newcomb guilty of conspiracy to
commit first-degree murder. This appeal follows.

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                       Standard of Review

    We review a trial court’s ruling on a motion for judgment for
acquittal de novo. Dunn v. State, 206 So. 3d 802, 804 (Fla. 1st DCA
2016). If the State presents competent, substantial evidence to
establish every element of the crime, then judgment of acquittal is
improper. State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003).

                             Analysis

     Newcomb contends that the trial court erred by denying his
motion for judgment of acquittal. First, he argues that the evidence
failed to show that he conspired to kill Driver’s attacker. Second,
he claims that there was no conspiracy because a necessary
element of the conspiracy—the murder—was to be performed
exclusively by the CI. We reject both arguments.

     First, the State presented competent, substantial evidence to
establish that Newcomb conspired with Moran and Driver to kill
Driver’s attacker. “A conspiracy exists where there is an express
or implied agreement between two or more persons to commit a
criminal offense and an intention to commit the offense. The fact-
finder may infer the agreement from the circumstances; direct
proof is not necessary.” Vasquez v. State, 111 So. 3d 273, 275 (Fla.
2d DCA 2013) (internal citation omitted). And “[a] defendant may
be found guilty of conspiracy if he had knowledge of the essential
objective and voluntarily became a part of it, even if he lacked
knowledge of all the details of the conspiracy or played only a
minor role in the total operation.” Cummings v. State, 514 So. 2d
406, 408 (Fla. 4th DCA 1987) (citing United States v. Bascaro, 742
F.2d 1335, 1359 (11th Cir. 1984)).

     Newcomb knew the essential objectives of the conspiracy to
kill Driver’s attacker and fully intended to participate in the
murder. Newcomb agreed with Driver and Moran that Driver’s
attacker needed to be put “six feet under.” Newcomb and Moran
spoke several times about the plot to kill the man. He was the one
that contacted the CI and set the date for the group to drive to
Palatka. Newcomb prepared to kill Driver’s attacker by buying and
cleaning special ammunition and by saving his wife’s extra insulin
to use as a murder weapon. Newcomb kept the insulin chilled so it

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would not lose its potency and pre-loaded syringes with the drug.
He was the first to suggest that they should snatch the man off
street. He also engaged in discussions about staging the man’s
body to make it appear that he died while fishing. Viewed in the
light most favorable to the State, the evidence was sufficient to
allow the jury to conclude that Newcomb conspired to murder
Driver’s attacker. See Bradley v. State, 787 So 2d. 732, 740-41 (Fla.
2001) (concluding evidence was sufficient to find Bradley guilty of
conspiracy to murder Mr. Jones where the testimony showed that
Mrs. Jones wanted Mr. Jones dead, that Mrs. Jones and Bradley
called each other right before and after the murder, and Bradley
said he was expecting a payoff from Mrs. Jones).

     Second, we reject Newcomb’s argument that there could be no
conspiracy because the CI was the only co-conspirator who
intended to perform the essential objectives of the conspiracy. It is
true that there can be no criminal conspiracy where two or more
persons conspire with a government agent with the intention that
“an essential ingredient of the offense is to be performed by, and
only by, such government agent.” Orantes v. State, 452 So. 2d 68,
71 (Fla. 1st DCA 1984) (quoting King v. State, 104 So. 2d 730, 733
(Fla. 1957)) (emphasis added). But here, the CI was not the only
person who agreed to participate in the murder. Newcomb made
many statements and took several actions that showed his intent
to participate in the murder of Driver’s attacker.

     Indeed, Newcomb was the person who kept in contact with the
CI and made sure that the plan to murder Driver’s attacker kept
moving forward. He referred to the assault on Driver as
“attempted murder” and expressed a willingness to do what he
needed to do to protect his Klan family. Newcomb volunteered to
walk up to the man and “put him out of his misery.” He organized
the men for the drive to Palatka for the sole purpose of finding
Driver’s attacker and murdering him. Newcomb brought his wife’s
insulin on ice to use as a murder weapon and had the syringes
loaded and ready to use. If they could not get close enough to the
man, Newcomb was willing to shoot the man with the ammunition
he wiped clean of fingerprints. He even asked the CI to stop the
car as they approached Palatka so he could have his guns ready.
Viewed in the light most favorable to the State, the evidence was
sufficient to allow the jury to conclude that the co-conspirators did

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not intend that the essential objective of the conspiracy would be
performed by and only by the CI. Rather, Newcomb and Moran, by
their words and actions, showed they were prepared to participate
in the murder of Driver’s attacker. See Orantes, 452 So. 2d at 71
(holding that the rule announced in King did not apply when the
evidence showed that a non-government agent conspired to
commit all the elements of the charged offense).

     Because there was competent, substantial evidence to support
the charge of conspiracy to commit first-degree murder, the trial
court did not err in denying the motion for judgment of acquittal.
Newcomb’s judgment and sentence are AFFIRMED.


ROBERTS and KELSEY, JJ., concur.




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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Charles M. Collins of Collins Law Firm, Monticello, for Appellant.

Ashley Moody, Attorney General, and Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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