State v. King
| Decision Date | 03 February 2015 |
| Docket Number | No. COA14–996.,COA14–996. |
| Citation | 769 S.E.2d 846 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Elisha Jason KING. |
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant.
Elisha Jason King (“defendant”) appeals from judgments entered after a jury found him guilty of three counts of breaking and entering, two counts of conspiracy to commit breaking and entering, two counts of injury to real property, and one count each of felony larceny, possession of stolen goods, and possession of burglary tools; defendant also attained habitual felon status. Defendant's sole argument on appeal is that where the indictment conjunctively alleged that he conspired to commit some of the underlying crimes with Quinyana Marshall (“Marshall”) and Recardo Shepard (“Shepard”), the trial court reversibly erred by disjunctively instructing the jury that it could convict defendant of conspiracy if it found that he agreed to commit the crimes with either Marshall or Shepard.
After careful review, we find no error.
The facts of this case are largely undisputed. At around 10:00 p .m. on the night of 30 January 2013, Officer Shannon Albright (“Officer Albright”) of the North Topsail Beach Police Department executed a traffic stop of a vehicle containing defendant, Marshall, and Shepard. Before executing the stop, Officer Albright noticed what appeared to be a flat screen television protruding from the open trunk of the car. She then saw the vehicle pull into a nearby driveway, stop momentarily, back out, pull into another driveway, and turn off its headlights. When the vehicle drove away, Officer Albright noticed that the television was no longer protruding from the trunk, so she executed an investigative stop. Pursuant to a consent search of the vehicle, officers found vinyl and cloth gloves, a crowbar, flashlights, screwdrivers, bolt cutters, three television remote controls, and spark plugs in the vehicle. An investigation of the nearby neighborhood revealed that the glass on the front doors of two townhomes had been shattered with spark plugs, a television appeared to be missing from one of the homes, and two flat screen televisions were recovered next to a house on the street where the vehicle had briefly stopped.
Defendant was indicted on numerous charges, including two counts of conspiracy. With regard to the conspiracy charges, the indictment specifically alleged that defendant “conspire[d] with [Shepard] and[Marshall]” to commit the underlying crimes of breaking and entering, larceny, and possession of stolen goods. At trial, Marshall testified for the State. She claimed that defendant and Shepard asked her to drive them to Shepard's mother's house, but did not reveal their plan to break into houses and steal televisions. She testified that she was unaware of defendant's and Shepard's plot to commit the crimes until immediately before the vehicle was stopped by Officer Albright, at which time defendant and Shepard told her that they would tell the officer she had nothing to do with their scheme.
The trial court initially instructed the jury that it could convict defendant of the conspiracy charges if the State proved beyond a reasonable doubt that “defendant and [Shepard] and [Marshall] entered into an agreement.” After deliberation, the jury asked the trial judge whether the State needed to prove that defendant entered into an agreement with both Shepard and Marshall or just one of the two. The State argued that the trial court should instruct the jury in the disjunctive, but defendant's trial counsel objected. Defense counsel requested that the trial court repeat its initial instruction, arguing that defendant was only on notice that the State sought to seek convictions for conspiracy based on alleged agreements between defendant and both Shepard and Marshall, not one or the other. Over defendant's objection, the trial court instructed the jurors that they could convict defendant of the conspiracy charges if they found unanimously that defendant had an agreement with either Shepard or Marshall. The trial court also instructed the jurors to indicate on two special verdict sheets which individual(s), if any, they unanimously found to have conspired with defendant. The jury convicted defendant of both counts of conspiracy, noting on each of the special verdict sheets that he conspired with Shepard, and not with Marshall. Defendant filed timely notice of appeal.
Defendant's sole argument on appeal is that the trial court erred by instructing the jury in the disjunctive where the indictment alleged that defendant conspired with both Marshall and Shepard. We disagree.
Because defendant preserved his challenge to the trial court's instruction, this Court reviews the alleged error de novo.1 See, e.g., State v. Osorio,196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “ ‘Under a de novoreview, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams,362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship,356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) ).
“The purpose of an indictment is to give a defendant notice of the crime for which he is being charged[.]” State v. Bowen,139 N.C.App. 18, 24, 533 S.E.2d 248, 252 (2000). “An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.” State v. Coker,312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984).
[I]t is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.
State v. Sturdivant,304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).
Defendant argues that because the indictment alleged that he conspired with both Marshall and Shepard, but the trial court's instruction allowed the jury to convict him for conspiring with Marshall or Shepard, defendant's right to due process was violated because the State was permitted to secure a conviction on a theory it did not initially allege. We find this argument unpersuasive.
“The essence of the crime of conspiracy is the agreement to commit a substantive crime.”State v. Griffin,112 N.C.App. 838, 840, 437 S.E.2d 390, 392 (1993). This agreement need only arise between the defendant and at least one other individual. See State v. Merrill,138 N.C.App. 215, 218, 530 S.E.2d 608, 611 (2000). This Court has repeatedly endorsed the use of conjunctive language in an indictment where criminal liability may be established by alternative theories of conduct.
Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively. The indictment should not charge a party disjunctively or alternatively, in such a manner as to leave it uncertain what is relied on as the accusation against him. The proper way is to connect the various allegations in the indictment with the conjunctive term “and,” and not with the word “or.”
State v. Armstead,149 N.C.App. 652, 654–55, 562 S.E.2d 450, 452 (2002) (); see also State v. Montgomery,331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992) (...
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