State v. Wilson

• Decision Date: 02 June 1992
• Docket Number: No. 9114SC664,9114SC664
• Citation: 416 S.E.2d 603,106 N.C.App. 342
• Parties: STATE of North Carolina v. Vernon Forest WILSON, Jr.
• Court: North Carolina Court of Appeals

Page 603

416 S.E.2d 603

106 N.C.App. 342

STATE of North Carolina v. Vernon Forest WILSON, Jr.

No. 9114SC664.

Court of Appeals of North Carolina.

June 2, 1992.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Valerie B. Spalding, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant-appellant.

LEWIS, Judge.

Defendant was convicted by a jury of first degree burglary, attempted armed robbery, possession of stolen property, six counts of armed robbery, and four counts of conspiracy to commit armed robbery. Defendant appeals three of the conspiracy convictions and the conviction for possession of stolen property.

The evidence presented at trial tended to show that a series of robberies occurred in and around Durham during a two week period in December 1988. On 14 December 1988, someone broke into the Tollison residence and stole a pearl-handled pistol, jewelry, and Christmas presents. Another private residence, the Lynn household in Durham, was burglarized on 17 December 1988. The Lynns, who were present during the robbery, testified that two armed, masked and gloved men entered their house. As one of the men held a gun on the Lynns, the other "ransacked" the house. The robbers stole money, jewelry and Christmas gifts. At trial, both Mr. and Mrs. Lynn testified that they were unable to distinguish the race of the robbers.

Also during this two week time period, the Pine State Creamery, the Weeping Radish restaurant and brewery, and Rigsbee's Lounge were robbed. In all three instances, men wearing ski masks and gloves and brandishing guns entered the establishments. At Pine State, two men, and at the Weeping Radish and Rigsbee's Lounge three men perpetrated the crimes. In all three instances, the men forced everyone present to lie face down on the floor, and in all three instances the armed men took cash. Witnesses testified that the Pine State robbers were two white males. Witnesses from the Weeping Radish were less sure; one said three white males were involved and another said one was white, one was black and could not identify the race of the third man. Mr. Rigsbee of Rigsbee's Lounge testified that two of the robbers were white but he was unsure about the third.

On 21 December 1988, in the middle of this two week period, Officer Hall of the Durham Police Department observed what he considered to be a "suspicious" situation--a green Buick LaSabre, traveling about twenty to twenty-five miles per hour, occupied by two white males wearing camouflage clothing. Officer Hall and his partner put their blue light on the dashboard of their unmarked car, whereupon the Buick sped away. A chase ensued. Subsequently, the officers found the Buick abandoned, the passenger door open and a .25 caliber pearl-handled pistol lying on the ground nearby. Officer Hall testified as to these occurrences at trial, and identified defendant as one of the Buick's occupants.

At trial, the jury convicted defendant of, among other charges, four conspiracies. Defendant assigns as error his convictions for multiple conspiracies, arguing that the facts support only a single conspiracy conviction. Defendant cites as authority for this argument this Court's earlier case, State v. Medlin, 86 N.C.App. 114, 357 S.E.2d 174 (1987).

In Medlin, the defendant had been convicted by a jury of, among other charges, seven counts of conspiracy to break or enter. These charges arose out of ten break-ins during the summer of 1985 of several retail stores in Durham. In each of the seven break-ins for which defendant was convicted, the evidence tended to show these facts: Either one or two men would break a panel of glass in the store's windows, enter the store through this opening, carry out radios, televisions, and other merchandise, and place the property in defendant's waiting truck. After the break-ins, the participants usually met to discuss the next job and divide the loot. Our Court held that this evidence supported a single conspiracy to break or enter various retail stores in Durham. Id. at 122, 357 S.E.2d at 179. The judgments and sentencing on multiple conspiracies were vacated and the case remanded with instructions to the trial court to enter judgment on a single conspiracy. Id. at 123, 357 S.E.2d at 179. Though not appealed and not yet cited by the Supreme Court, Medlin controls here.

According to North Carolina law, a criminal conspiracy is an agreement by two or more persons to perform either an unlawful act or a lawful act in an unlawful manner. State v. Rozier, 69 N.C.App. 38, 49, 316 S.E.2d 893, 900, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984) (citation omitted). Because the crime of conspiracy lies in the agreement itself, and not the commission of the substantive crime, State v. Looney, 294 N.C. 1, 240 S.E.2d 612 (1978), a defendant can, under certain fact situations, be convicted of a single conspiracy when there are multiple acts or transactions. See, e.g., Rozier, 69 N.C.App. at 52, 316 S.E.2d at 902. To determine whether single or multiple conspiracies are involved, the "essential question is the nature of the agreement or agreements, ... but factors such as time intervals, participants, objectives, and number of meetings all must be considered." Id. Applying these factors to the present fact situation, we find a single conspiracy under Medlin.

We find the present case to be legally indistinguishable from Medlin. Andrew Hyde, one of the admitted participants in the robberies, was a witness for the State in this case. During direct examination, Hyde testified that a few days before their first robbery of a commercial establishment, the 15 December 1988 robbery of Pine State Creamery, defendant told him that

cash money ... was what it was all about and the onliest way to get cash money was in armed robberies. [Defendant] said, 'Damn a bunch of property, stealing a bunch of property, taking a bunch of property and trying to sell it and you not getting nothing compared to what it was worth.... You really didn't have anything to worry about as long as you had a mask over your face and gloves on your hand.... There's no way that anybody can ever identify you.'

Hyde also testified that once this course of action started, "[w]e didn't want to stop robbing places. We decided it was to the death. We just weren't going to stop. It was to the death." We find these conversations clear evidence that a common scheme of a single conspiracy to commit armed robberies to acquire cash existed.

In addition, our examination of the Rozier factors leads us to the same conclusion. As in Medlin, the participants here were the same each time. The fact that in two of the robberies the conspirators solicited the assistance of a third man is inconsequential. The entering and exiting of various participants in an otherwise ongoing plan to commit a particular felonious act does not convert a single conspiracy into several. See, e.g., State v. Overton, 60 N.C.App. 1, 13, 298 S.E.2d 695, 710 (1982), disc. rev. denied, 307 N.C. 580, 299 S.E.2d 652 (1983). Further, the robberies occurred over a two week period. The objectives were clear in that the parties intended to commit armed robbery to acquire cash. This case differs from Medlin in that there is no evidence that the parties held meetings of their "board" after each robbery. However, the facts suggest that there was a common scheme at play: First, we note Hyde's testimony concerning the purpose of armed robbery for cash; second, we note that "the break-ins occurred in essentially the same manner." Medlin, 86 N.C.App. at 121, 357 S.E.2d at 178. Three of the four robberies involved commercial establishments, and in each case, the participants were armed, wore masks and gloves, forced those present to lie face down on the floor, and primarily took cash.

We find that "these facts show one unlawful agreement to break or enter as many times as the participants could get away with." Id. at 122, 357 S.E.2d at 179. There was but a "single scheme or plan to commit an ongoing series of felonious breakings or enterings." Id. at 121, 357 S.E.2d at 178. Accordingly, we vacate three of the conspiracy convictions against defendant, and remand with instructions to the trial court to resentence defendant on the remaining conspiracy conviction. Given our ruling on this assignment of error, we find it unnecessary to address defendant's second assignment of error on the trial court's failure to instruct the jury as to a single conspiracy.

Defendant also...