State v. Medlin

357 S.E.2d 174 (1987)

86 N.C. App. 114

STATE of North Carolina v. Bob MEDLIN.

No. 8614SC883.

Court of Appeals of North Carolina.

June 16, 1987.

*178 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. R. Bryant Wall, Raleigh, for the State.

Glover & Peterson, P.A. by James R. Glover, Chapel Hill, for defendant-appellant.

JOHNSON, Judge.

Defendant raises four of his original twelve Assignments of Error on appeal, as well as an additional Assignment of Error number thirteen upon our granting of defendant's motion to amend the record. All other Assignments of Error not raised on appeal are deemed abandoned. Rule 28(b)(5), N.C. Rules App.P.

I A

Defendant's fifth Assignment of Error raises the issue of whether he could be lawfully convicted of seven counts of conspiracy to break or enter on these facts. He argues that the evidence does not show seven separate and distinct transactions, but rather shows a single scheme or plan to commit an ongoing series of felonious breakings or enterings. Based on this argument, defendant asks this Court to vacate the three judgments for multiple conspiracies and remand for entry of a single judgment on one count of conspiracy. The State argues on appeal that the evidence is sufficient to sustain defendant's convictions on seven counts of conspiracy to break or enter, and asks us to affirm these convictions and not to disturb the judgments.

The charges against defendant arise out of ten break-ins committed at several retail stores in Durham between 4 May 1985 and 24 August 1985. The evidence tends to show that all the break-ins occurred in essentially the same manner: Walter Cox, alone or with Leslie Williams, would break a store window and climb through the hole into the store. Once inside, Cox would telephone defendant. Defendant then drove his truck to the store to help carry away televisions and radios from the premises. For each of the break-ins, defendant was charged in separate indictments for conspiring with Cox (and in three indictments with Leslie Williams) to commit felonious breaking or entering. Defendant was eventually convicted of seven of these conspiracy charges, which were consolidated into three judgments of three years to be served consecutively.

The essence of the crime of conspiracy is the agreement to commit a substantive crime. State v. Rozier, 69 N.C. App. 38, 52, 316 S.E.2d 893, 902, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984). No overt act is required in furtherance of the conspiracy. State v. Nicholson, 78 N.C.App. 398, 401, 337 S.E.2d 654, 657 (1985). When the evidence shows a series of agreements or acts constituting a single conspiracy, a defendant cannot be prosecuted on multiple conspiracy indictments consistent with the constitutional prohibition against double jeopardy. United States v. Kissel, 218 U.S. 601, 31 S. Ct. 124, 54 L. Ed. 1168 (1910).

*179 Although the offense of conspiracy is complete upon formation of the unlawful agreement, the offense continues until the conspiracy comes to fruition or is abandoned. State v. Conrad, 275 N.C. 342, 347, 168 S.E.2d 39, 43 (1969). A single conspiracy may, and often does, consist of a series of different offenses. State v. Brewer, 258 N.C. 533, 540, 129 S.E.2d 262, 267 (1963).

Although we have previously said that there is "no simple test for determining whether single or multiple conspiracies are involved" in a particular case, Rozier, supra, 69 N.C.App. at 52, 316 S.E.2d at 902, factors such as time intervals, participants, objectives, and number of meetings must be considered. Id.

Applying the four factors from Rozier, supra, to the facts in the case sub judice, we find ample evidence of a single conspiracy to feloniously break or enter the various Durham retail stores. All of the break-ins occurred within four months, and some within ten days of each other. The participantsdefendant, Cox, and Williams in three instancesremained the same. The participants pursued the same objective throughout; to steal televisions and radios from local Durham retail stores. Meetings generally took place after break-ins to divide the spoils and discuss the next break-in. For example, on 1 June 1985, the night of the first break-in at Bargain Furniture, Cox testified that he and defendant discussed breaking into "another furniture store located across from the same one I had been in [Center Furniture] ... This is Bargain Furniture I'm talking about now." The gist of the meetings was to plan subsequent break-ins in furtherance of the original unlawful agreement made sometime before the first break-in. We are hard-pressed to find facts more clearly telling of an ongoing series of acts in furtherance of a single conspiracy to break or enter. Rather than show ten separate conspiracies to break or enter on ten separate occasions as the State contends, these facts show one unlawful agreement to break or enter as many times as the participants could get away with. But for Cox's cooperation with Durham police, defendant and Cox would have presumably kept on breaking into and stealing from the same or similar stores. The State's argument that each conversation that Cox and defendant had between break-ins constituted a separate agreement to break or enter is not supported by the evidence. Even the prosecutor said at trial during the hearing on defendant's motion to dismiss the charges as to the Deluxe Products break-in that "the date on this one [Deluxe Products] is getting late in the conspiracy, August 22." (Emphasis supplied).

We find that the evidence supports defendant's Assignment of Error as to the judgments and sentencing on multiple conspiracies, and hereby vacate the three judgments on the seven conspiracy convictions (Case Nos. 85CRS32365, 32366, 32368, 32615, 32616, 32619, 32370), and remand with instructions to the trial court to enter judgment on conspiracy to commit felonious breaking or entering in Case No. 85CRS32366.

B

Defendant's thirteenth Assignment of Error, raised in his motion to this Court to amend the record, raises the issue of whether the trial court properly entered judgment on the conspiracy convictions as Class H Felonies with a maximum term of ten years and a presumptive term of three years. Defendant contends that conspiracy to commit felonious breaking or entering is punishable as a Class J Felony. We agree.

The trial court sentenced defendant to three years on each judgment as to the conspiracy convictions. The judgment and commitment forms in the record show the trial court delineated each "Conspiracy to commit B & E" conviction as a Class H Felony, which class of felony is punishable by a maximum ten-year prison term with a presumptive three-year prison term. As noted in the State's brief and defendant's motion to amend the record on appeal, G.S. 14-2.4(1) provides that a conspiracy to commit a Class H felony, such as felonious breaking or entering under G.S. 14-54(a), is punishable as a Class J Felony by a maximum term of three years with a presumptive *180 term of one year. We find that the trial court erred by sentencing defendant as a Class H Felon on the conspiracy counts. Upon remand defendant shall be resentenced as a Class J Felon on one count of conspiracy to commit felonious breaking or entering.

II

Defendant's tenth and eleventh Assignments of Error raise the issue of whether the indictment for criminal possession of personal property of "Norman's T.V." (No. 32373) is fatally defective for failure to allege ownership of the property in a natural person or entity capable of holding title to the property. We find no merit to defendant's Assignments of Error.

Counts two and three of the indictment in case No. 85CRS32373 charged defendant with larceny and possession of stolen televisions and radios which were the property of "Norman's T.V." Evidence at trial showed an ownership interest in the stolen property in Norman Shultz. The jury convicted defendant of the larceny and criminal possession charges, and the trial court arrested judgment on the larceny charge. Defendant contends that the variance between the indictment and the evidence is fatal. We disagree.

While the parties have not found a case involving an indictment under our criminal possession statute G.S. 14-71.1, we have recognized the similarity between that statute and the receiving stolen goods statute. We held in State v. Taylor, 64 N.C.App. 165, 169, 307 S.E.2d 173, 176 (1983), rev'd in part, 311 N.C. 380, 317 S.E.2d 369 (1984), that, as to knowledge or belief that goods were stolen, "the standard of proof established in cases of receiving stolen goods is equally applicable in cases involving possessing stolen goods." In cases of receiving stolen goods, it has never been necessary to allege the names of the persons from whom the goods were stolen, State v. Truesdale, 13 N.C.App. 622, 625, 186 S.E.2d 604, 606 (1972), nor has a variance between an allegation of ownership in the receiving indictment and proof of ownership been held to be fatal. State v. Golden, 20 N.C.App. 451, 453, 201 S.E.2d 546, 548, cert. denied, 285 N.C. 88, 203 S.E.2d 60 (1974). We now hold that the name of the person from whom goods were stolen is not an essential element of an indictment alleging possession of stolen goods, nor is a variance between the indictments's allegations of ownership of property and the proof of ownership fatal.

Applying our holding to the case sub judice, we find the indictment alleging that defendant unlawfully possessed the personal property of Norman's T.V. sufficient to withstand defendant's Assignments of Error, and find further that the variance between the indictment above and the evidence at trial showing that the property was owned by Norman Shultz is not fatally defective. Defendant's Assignments of Error in this regard are overruled.

III

Defendant's ninth Assignment of Error raises the issue of whether the State's evidence at trial was sufficient to prove defendant guilty of breaking or entering into Bargain Furniture on 10 June 1985 (85CRS32369), and on 4 July 1985 (85CRS32371), and Wright Furniture on 27 July 1985 (85CRS32618). We find the State's evidence sufficient to establish defendant's guilt in all three charges and overrule his Assignment of Error.

The State did not offer any evidence that defendant actually entered the buildings during the commission of these three crimes, but instead alleged that defendant aided and abetted the breaking or entering by Walter Cox. The evidence required to convict an aider and abettor of a specific crime was well summarized by our Supreme Court in State v. Sanders:

The mere presence of the defendant at the scene of the crime, even though he is in sympathy with the criminal act and does nothing to prevent its commission, does not make him guilty of the offense. To support a conviction, the State's evidence must be sufficient to support a finding that the defendant was present, *181 actually or constructively, with the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrators. The communication or intent to aid, if needed, does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators.

288 N.C. 285, 290-91, 218 S.E.2d 352, 357 (1975) (citations omitted); cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976).

With respect to the 10 June 1985 break-in at Bargain Furniture, defendant drove his truck to the store after Cox telephoned him, gave Cox tools to break the lock on the rear door of the store, then received merchandise through the hole in the store window, and loaded the goods onto his truck. During the 4 July 1985 break-in at Bargain, defendant agreed beforehand to drive his truck to the store. When defendant arrived at the store, Cox told defendant the store contained some televisions and "some Hitachi radios again." Defendant said "I don't want no radios," whereupon Cox entered the store through a broken window and passed television sets out to defendant to load them onto his truck. During the 27 July 1985 break-in at Wright Furniture, defendant parked his truck in an adjacent parking lot, gave Cox a hammer with which to disarm the store's alarm, and waited outside. While inside, Cox awakened a sleeping employee. Cox fled the building. Defendant got into his truck and drove away. We find that this evidence clearly shows that defendant was actually present at the scene in each of the three break-ins at issue, and clearly communicated his intent to aid Cox and Williams in breaking or entering the stores. We find that the evidence unequivocally supports defendant's convictions on each of these three breaking or entering charges since the evidence shows he aided and abetted the principal perpetrators and is, therefore, equally culpable even though he did not physically enter the buildings.

In summary, cases:

85CRS32364, 32367, 32369, 32371, 32612, 32373, 32618No error.

85CRS32365, 32366, 32368, 32615, 32616, 32619, 32370Judgments vacated.

85CRS32366Remanded for resentencing.

BECTON and PHILLIPS, JJ., concur.