State v. LeDuc

• Decision Date: 19 August 1980
• Docket Number: No. 781SC945,781SC945
• Citation: 48 N.C.App. 227,269 S.E.2d 220
• Parties: STATE of North Carolina v. Milan Albert LeDUC.
• Court: North Carolina Court of Appeals

Page 220

269 S.E.2d 220

48 N.C.App. 227

STATE of North Carolina v. Milan Albert LeDUC.

No. 781SC945.

Court of Appeals of North Carolina.

Aug. 19, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Donald W. Grimes, Raleigh, for the State.

Larry G. Turner, Gainesville, Fla., and White, Hall, Mullen, Brumsey & Small by Gerald F. White, Elizabeth City, for defendant-appellant.

PARKER, Judge.

Defendant assigns error to the denial of his motions for nonsuit, contending the evidence was insufficient to warrant submitting the conspiracy charge against him to the jury. We do not agree.

The manner in which the evidence must be viewed by the court upon the defendant's motion for judgment of nonsuit in a criminal case was stated by Lake, J., speaking for our Supreme Court in State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), as follows:

Upon the defendant's motion for judgment of nonsuit in a criminal action, the question for the court is whether there is substantial evidence of each essential element of the offense charged, or of a lessor offense included therein, and of the defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777; State v. Goins and State v. Martin, 261 N.C. 707, 136 S.E.2d 97. In making this determination, the evidence must be considered in the light most favorable to the State and the State is entitled to the benefit of every reasonable inference to be drawn from it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679. Contradictions and discrepancies in the testimony of the State's witnesses are to be resolved by the jury and, for the purposes of this motion, they are to be deemed by the court as if resolved in favor of the State. State v. Church, 265 N.C. 534, 144 S.E.2d 624; State v. Simpson, 244 N.C. 325, 93 S.E.2d 425. In determining such motion, incompetent evidence which has been admitted must be considered as if it were competent. State v. Cutler, supra; State v. Virgil, supra.

The test of the sufficiency of the evidence to withstand the motion for judgment of nonsuit is the same whether the evidence is circumstantial, direct or both. State v. Cutler, supra; State v. Rowland, supra; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. There is substantial evidence of each element of the offense charged, or of a lesser offense included therein, and of the identity of the defendant as the perpetrator of it if, but only if, interpreting the evidence in accordance with the foregoing rule, the jury could draw reasonable inference of each such fact from the evidence. State v. Rowland, supra. If, on the other hand, the evidence so considered, together with all reasonable inferences to be drawn therefrom, raises no more than a suspicion or a conjecture, either that the offense charged in the indictment, or a lesser offense included therein, has been committed or that the defendant committed it, the evidence is not sufficient and the motion for judgment of nonsuit should be allowed.

278 N.C. at 567, 180 S.E.2d at 759-60.

The evidence in the present case, considered in accordance with the above principles, is sufficient to support, though not to require, findings as follows:

Defendant, an experienced operator of seagoing vessels, on several dates in April 1977 negotiated with the owners of such a vessel to charter it from them. These negotiations took place in Alabama, where the boat was located, and in Florida, where the owners lived. On each occasion when these negotiations took place, defendant was accompanied by two male companions. The negotiations were finally successfully concluded on 26 April 1977, when the owners signed a charter agreement chartering the boat to defendant for an initial period of three months. Thereafter defendant took the boat from the shipyard at Bayou LaBatre, Alabama, where it was located when the charter agreement was signed, and sailed it down the Gulf Coast into waters off the coast of Colombia, South America, and thence up the Atlantic Coast into North Carolina waters, at some point along the way picking up a load of marijuana. Defendant's fingerprints on the notebook on which navigational notations were entered charting the course of the voyage reasonably support the inference that he was the person who served as navigator. At some time between 10:00 p. m. on 17 May 1977 and 2:30 a. m. the next day, the boat docked in the darkness at Stumpy Point in Dare County, N.C. During that four-and-a-half hour interval it was met by persons unknown who arrived at the dock in two trucks. Marijuana was unloaded from the boat into one or both of these trucks, after which both trucks left the scene, three persons leaving together in the second truck. These findings, all of which are supported by the evidence either directly or by reasonable inference, would support a jury verdict finding defendant guilty of the crime of conspiracy to feloniously possess more than one ounce of marijuana in this State.

A criminal conspiracy occurs when there is an "agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way." State v. Parker, 234 N.C. 236, 241, 66 S.E.2d 907, 912 (1951). The offense is complete when the agreement is made, the conspiracy itself being the crime and not the execution of the deed. State v. Anderson, 208 N.C. 771, 182 S.E. 643 (1935). "Direct proof of the charge is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy." State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).

Evidence that after a long sea voyage the boat docked at night at an isolated point in Dare County and was almost immediately thereafter met by persons who arrived at the scene in two trucks, furnishes solid support for the inference that the meeting took place by prior agreement. Indeed, it seems almost inconceivable that such a meeting could have occurred without prior arrangement. The inference that the purpose of the meeting was to unload marijuana from the boat into one or both of the trucks is equally solidly supported by the evidence. Finally, that defendant was one of the persons who joined in making the agreement may be reasonably inferred from the evidence that he had chartered and had participated in navigating the boat during the voyage in question. It was not necessary that the identity of defendant's coconspirators be disclosed, State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505 (1968), it being only necessary that the State show that he did conspire with one or more other persons to do the unlawful act. Nor was it necessary that the State show where the unlawful agreement was entered into, since "(o)ur courts have jurisdiction of a prosecution for criminal conspiracy, if any one of the conspirators commits within the State an overt act in furtherance of the common design, even though the unlawful conspiracy was entered into outside of the State. The rationale of this principle of law is that the conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design." State v. Goldberg, 261 N.C. 181, 203, 134 S.E.2d 334, 349 (1964). We hold that defendant's motions challenging the sufficiency of the evidence were properly denied.

Defendant assigns error to the denial of his motion to suppress all evidence obtained as result of the warrantless search which the officers made on board the "Frances Ann." He contends that the search of the vessel violated his Fourth Amendment rights and that the exclusionary rules should be applied. We do not agree.

Following an extensive voir dire hearing at which the State presented evidence but the defendant elected not to do so, the trial court entered an order making findings of fact, including findings

that the boat "Frances Ann" had been tied up at a dock at Stumpy Point in Dare County from the 18th or 19th of May, 1977, until Sunday, May 22nd, 1977; that all of the windows in the deckhouse were open, and all doors that were visible were open, and no one was seen in or about the boat, and because of concern among some of the local people the Sheriff's office was notified and on Sunday afternoon, May 22nd, Deputy Sheriff Sammy Pledger arrived, and upon the representations having been made to him by Mr. Leland Wise, a resident of Stumpy Point, concerning the manner in which the boat was tied up and its unusual circumstances, above set out, Officer Pledger decided to board the boat to determine if anyone was aboard that was ill, or if any dead body was on the boat.

In the instant case the officer was not engaged in a search for evidence to be used in a criminal prosecution. . . . (T)hat when (the officer) entered the deckhouse he saw in the captain's quarters an open cabinet directly below the captain's bunk which contained two bags, one within the other, and also contained vegetable material which he believed and which he had reason to believe was marijuana; that when he first entered the deckhouse it had a faint odor of marijuana, and upon entering the captain's quarters the odor was more pronounced.

That he also found on a table where food had been eaten, plates containing remains of stale food, a pipe made of tinfoil, which appeared to be homemade, and also green vegetable material on the table, these last items were found in the galley which adjoins the captain's quarters.

The material that was found under the captain's bunk, and that which was found on the table in the galley, were in plain view of Officer Pledger. . . .

These factual findings, to which defendant has not excepted, are supported by evidence presented at...