State of Minnesota, Respondent, vs. Zenaida P. Taormina, Appellant.

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State of Minnesota, Respondent, vs. Zenaida P. Taormina, Appellant. A06-0472, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-472

 

State of Minnesota,

Respondent,

 

vs.

 

Zenaida P. Taormina,

Appellant.

 

Filed June 5, 2007

Affirmed

Ross, Judge

 

Hennepin County District Court

File No. 05018827

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

 

 

Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

 

This appeal concerns Zenaida Taormina's conviction of conspiracy to commit first-degree murder after she made arrangements for a man to kill her husband.  Taormina contends that the alleged overt act to further the conspiracy occurred before she entered any agreement to have her husband murdered because she was still negotiating the price after the act.  She argues that, therefore, no conspiracy existed that could have been furthered by her overt act.  Because we conclude that record evidence supports a reasonable jury's finding that Taormina agreed to pay a hit-man to murder her husband before the overt act, we affirm.

FACTS

This case arises from Zenaida Taormina's efforts to hire someone in March 2005 to kill her husband, Ross Taormina.  Zenaida Taormina and her husband were married in 1994, shortly after they met while he vacationed in the Philippines.  They have an eight-year-old son and a three-year-old daughter.  Ross Taormina operates his own business.  Because he works every day, he and his son typically spend every Sunday together at his office in Brooklyn Park.  This was the circumstance on a Sunday in late March 2005, when the murder plot developed.

At about noon, Zenaida Taormina met with an acquaintance, Tyrone Parker, in a Brooklyn Park Walgreens parking lot.  She told Parker that she wanted her husband killed.  Parker told her that he would not kill her husband, but he claimed to know some "gang bangers" who probably would.  Zenaida Taormina initially offered Parker $5,000 but then offered $15,000 when he predicted that he could not find someone to do it for only $5,000.  She offered to pay half the amount after the killing and the other half from money that her husband's overseas relatives would wire for funeral costs.

Parker had no interest in actually brokering the murder.  After their conversation, he called his cousin, Andre Thrower, and asked him to pretend to be a hired hit-man.  Parker was on probation for a drug conviction, so he also attempted unsuccessfully to report Taormina's request to his parole officer, a Hennepin county law-enforcement officer whom he knew personally, and the FBI.

According to phone records and several recordings, Zenaida Taormina and Parker exchanged calls on their cellular telephones between 1:00 p.m. and 4:30 p.m. to finalize the details of the murder-for-hire plan.  She asked Parker several times whether he had found someone to kill her husband.  She disclosed that her husband would be at his business office that day with their eight-year-old son.  She instructed him to make the scene appear as a robbery, but she cautioned that he should not harm her son.  She advised him to take the cash and to leave the credit cards.  Zenaida Taormina gave Parker her husband's business address and told him that he would be there until about 9:00 p.m.  She insisted that he be killed that day, before he left work.  Parker testified that there was no ambiguity about whether she wanted her husband killed.  Zenaida Taormina also spoke with Thrower after Parker told her that he had procured Thrower to do the killing.  She told Thrower that she wanted to get rid of her husband and asked him if Parker had explained the situation to him.  She repeated that she wanted her husband killed that day before he left work.

Parker called Ross Taormina's work number and left messages at 4:30 p.m. and again at 7:15 p.m.  Ross Taormina returned Parker's second call and learned that his wife wanted him killed.  Parker revealed that she had given Parker her husband's work number, told Parker where he worked, described his truck, given Parker the license plate number, and informed Parker of the route Ross Taormina travels to his office.  While they were still talking, Zenaida Taormina arrived to drive Ross Taormina and their son to one of Ross Taormina's nearby rental properties to help him retrieve a company vehicle.  Ross Taormina told Parker he would call him back.  Parker dialed 911.

When Zenaida Taormina dropped Ross Taormina off at the rental property, she insisted that their son leave with her rather than stay with him, despite their Sunday custom.  Ross Taormina first quarreled then agreed, and he drove back to his office alone.

Ross Taormina called Parker at 7:42 p.m.  Parker repeated that his wife wanted him killed that night, that "she didn't want it to go another day."  Parker relayed her plan for Parker to go to Ross Taormina's office, shoot him, and make it appear to have been a robbery.  Parker explained that she promised to pay for the murder with money from Ross Taormina's overseas relatives.  He said that Zenaida Taormina first offered him $5,000 but raised it to $15,000 when he told her he needed to arrange for someone else to kill him.  Parker informed Ross Taormina that the police were on their way to his office.

The police arrived at the office and remained several hours.  Ross Taormina told officers that his wife had taken out cash advances totaling $16,500 from her credit cards in the summer of 2004 but suddenly stopped repaying them.  He later testified that a few weeks earlier, she asked him about the workings of the video surveillance system at his office.  While the police were still at the office, Zenaida Taormina called him to ask him when he planned on leaving work.

The police met with Parker and Thrower.  They asked them to call Zenaida Taormina so they could record her saying that she wanted her husband killed or that she agreed to pay some money beforehand.  The police recorded five telephone calls between Zenaida Taormina and the two between 9:39 p.m. and 10:40 p.m.  Although the recordings of Zenaida Taormina's voice were mostly inaudible, Parker testified that she again said she wanted her husband killed and that he needed to hurry because her husband would soon be leaving the office.  Parker and Thrower also asked her to meet with them and give them part of the money before the killing, but she refused.

Police confronted Zenaida Taormina at 11:00 p.m. at her home.  She showed no surprise when police told her they were arresting her for conspiring to murder her husband.  She admitted that she offered Parker $5,000 to "hurt" her husband and agreed to give him $10,000 when he rejected the initial offer.  When faced with Parker's and Thrower's statements that she had asked them to kill her husband, she insisted that she must have misunderstood them or perhaps her cellular telephone malfunctioned.

But Zenaida Taormina then boasted of her murder plot to others.  While in jail, she told fellow inmates that she had been arrested for trying to kill her husband.  She recounted that she had tried to hire someone for $5,000 but had to raise the offer to $10,000.  She explained that she wanted her husband dead, and that she would kill him when released on bond.  She told jail mates that the police failed to capture her on tape stating that she wanted her husband killed.  One inmate heard her reveal that she was not expecting to be arrested when she saw police arrive at her house that night; rather, she was prepared to feign sorrow when they told her of her husband's tragedy.  Of course, police brought a different message.

The state charged Zenaida Taormina with conspiracy to commit first-degree murder.  The complaint alleged that she committed the overt act of removing her son from harm's way in furtherance of the conspiracy.  A jury found her guilty.  The district court sentenced her to 180 months' imprisonment.  This appeal follows.

D E C I S I O N

Taormina argues that there was insufficient evidence to convict her of conspiracy to commit murder because the alleged overt act in furtherance of the conspiracy occurred before she entered any conspiratorial agreement.  We reject this argument.

We review a claim of insufficiency of the evidence to determine whether a jury could reasonably conclude that the defendant was guilty of the offense charged in light of the facts and their legitimate inferences.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  We view the evidence in the light most favorable to the guilty verdict and assume that the jury believed the state's witnesses and disbelieved contradictory evidence.  Id.  Any inconsistencies in the evidence are also resolved in favor of the verdict.  State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).  We will not reverse a guilty verdict if the jury, giving due regard to the presumption of innocence and to the state's burden to prove the defendant's guilt beyond a reasonable doubt, could reasonably have found the defendant guilty.  State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).

To prove a conspiracy, the state must show that one or more defendants conspired with another to commit a crime and that one or more of the conspirators did some overt act in furtherance of the conspiracy.  Minn. Stat. § 609.175, subd. 2 (2004).  Taormina claims that there was no evidence that she entered into an agreement to kill her husband until after she removed her son because Parker and Thrower had not yet agreed on the amount or terms of payment.  It is clear that removing her son may constitute an overt act because the "slightest action on the part of a conspirator," even merely preparing for the crime, may be an overt act in furtherance of a conspiracy.  State v. St. Christopher, 305 Minn. 226, 235, 232 N.W.2d 798, 804 (1975).  The only question is whether there was sufficient evidence that the overt act demonstrated an agreement to commit the crime.

A conspiratorial agreement need not be proved by direct evidence but may be inferred from the circumstances or the actions of the parties.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  The state also need not prove that the alleged conspirators entered a "formal agreement."  Id.  The issue hangs on whether objective evidence indicates that the defendant agreed with another to commit a crime.  Id. at 376-77.  And a defendant may be convicted of conspiracy even when "the person with whom the defendant conspired feigned agreement and at no time intended to go through with the plan."  State v. Bird, 285 N.W.2d 481, 482-83 (Minn. 1979).

Here, Taormina overtly demonstrated the agreement by removing her son from the would-be murder scene.  The evidence showed that Taormina solicited Parker to kill her husband, offered to pay him if either he or someone else did so, gave him specific information about her husband's vehicle, location, and schedule, and instructed him on the details and timing of the requested murder.  She told him to make it appear as a robbery, taking the cash but leaving the credit cards.  After Parker feigned that he had procured Thrower for the murder, Taormina also told Thrower that she wanted her husband killed before he left work that night.  Viewing these facts in the light most favorable to the verdict, we find sufficient evidence that there was an agreement to commit first-degree murder as confirmed when Taormina removed her son from harm's way in furtherance of the conspiracy at approximately 7:30 that same evening.

We do not agree with Taormina that the timing of her overt act in relation to the timing of the agreement renders her conviction invalid.  At most, the agreement closely followed the act, and evidence supports the conclusion that it was done in her anticipation and expectation of an agreement that she was developing throughout the day.  But we conclude that the state produced sufficient evidence to permit the jury to reasonably infer the existence of the agreement to accomplish the murder, which was then followed by the overt act.  There was ample evidence to establish that Taormina agreed to pay for the killing of her husband before she protectively removed their son from her intended victim in furtherance of that agreement.  We hold that Taormina's conviction for conspiracy to commit first-degree murder was supported by sufficient evidence.

Affirmed.