On a motion to dismiss a criminal indictment, a court “views the evidence and the rational inferences drawn from that evidence in the light most favorable to the State.” A criminal indictment is proper if the State presented the grand jury with at least “‘some evidence’ as to each element of a prima facie case.” A trial court’s denial of a motion to dismiss an indictment is reviewed for abuse of discretion.
Viewing the facts in a light most favorable to the State, we find the State presented sufficient evidence to survive defendants James’s and Likisha’s motions to dismiss their indictments’ conspiracy counts. The co-conspirators here exhibited a continuing course of conduct beginning well before and extending far beyond Elisha’s death in 2002. Their acts allegedly included (1) the family meeting in 2002 at which all entered into a compact to keep the incidents leading to Jon-Niece’s death a secret and to lie about her whereabouts with no apparent dissent; (2) Likisha’s threatening of Iyonna in 2006 when Iyonna considered imperiling the conspiracy by exposing it; (3) James’s explicit discussion with Iyonna in 2010 concerning the details of the burning of Jon-Niece’s body; and (4) Gibson’s threat in 2012 to kill Iyonna if he were to discover that she disclosed the conspiracy to the police. The potential exists that those actions were not merely intended to protect Elisha from prosecution, as they postdated her death, but also to insulate from discovery the co-conspirators’ roles in hindering and in the destruction of evidence.
Their corresponding actions, the early stages of the proceedings, and the low evidentiary bar necessary to overcome defendants’ motion, combine to provide sufficient evidence of a continuing course of conduct for the State to survive defendants’ motion to dismiss the indictment. Whether at trial or at further hearings, defendants are entitled to challenge the evidence advanced by the State. And, if this case proceeds to trial, defendants would be entitled to a jury charge explaining Grunewald‘s application.
Finally, the State’s concession before the trial court that the “continuing course of conduct” exception to the statute of limitations was inapplicable is not binding on our analysis. A position by the prosecutor favorable to a defendant should be given great weight but is not binding on a court.” We find that there may have been a continuing course of conduct, for tolling purposes, which will be determined by a jury upon remand.
We affirm the judgment of the Appellate Division affirming the trial court’s dismissal of the indictment against defendant in Twiggs. We also affirm the judgment of the Appellate Division in Jones, reversing the trial court’s denial of defendants’ motion to dismiss the indictment on the substantive tampering, obstruction, and hindering charges and affirming the denial of defendants’ motion to dismiss the indictment on the conspiracy charge. The cases are remanded to the respective trial courts for proceedings consistent with this opinion.
The fact that the defendants are entitled to a Grunewald charge should be of little comfort to them. First, jurors routinely ignore the lengthy final charge due to the amount of concentration it requires after sitting through an entire trial. Moreover, there is a concern for jury nullification in that it tends to presuppose guilt while asking the jury to acquit in light of complicated statute of limitations concerns.
