State v. Partida-Rodriguez
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-632 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 10 CRS 252530-31 JUAN PARTIDA-RODRIGUEZ Appeal by defendant from judgment entered 6 October 2011 by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Iain M. Stauffer, for the State. Jarvis John Edgerton, IV, for defendant-appellant. BRYANT, Judge. Where the State s evidence was insufficient to show the existence of two separate agreements between defendant and his co-conspirator, one of defendant s conspiracy convictions must be vacated. Facts and Procedural History -2The State presented testimony from several law enforcement officers regarding the events that took place on 2 July 2010 and 7 July 2010 leading to defendant Juan Partida-Rodriguez s arrest and conviction. detective for Detective the Paul Foushee, Charlotte-Mecklenburg a vice Police narcotics Department testified that he encountered defendant on 2 July 2010 during an undercover operation. Detective Foushee arranged to meet defendant at a Bojangles restaurant for the purpose of making an undercover heroin buy. While at Bojangles , two Hispanic males in a burgundy Toyota Scion motioned for Detective Foushee to follow them to another parking lot located a block away, where they parked near each other. that defendant exited a Toyota Detective Foushee testified Scion and entered Detective Foushee s vehicle to ask how much heroin he wanted. Detective Foushee purchased 0.22 grams of heroin from Defendant for $60.00 and left the scene without making an arrest. On 7 July 2010, Detective Foushee called the same telephone number that he called on 2 July 2010, asked to purchase heroin, and was before. told to meet at the same Bojangles restaurant as Detective Foushee testified that defendant arrived on the scene driving the same Toyota Scion as before and motioned for Detective Foushee to park near a store located adjacent to -3the Bojangles parking lot. The passenger side door of defendant s vehicle faced Detective Foushee s driver side door. Detective Foushee communicated with the passenger of the car, a man identified as Damian Arrchega, and purchased 12 balloons of heroin in exchange for $100.00. The Toyota Scion drove away from the scene after the exchange and thereafter, defendant was arrested at a traffic stop conducted by other Charlotte-Mecklenburg police officers. Defendant was searched and a cellular phone and $1,200.00 in cash were recovered. On 5 July 2011, defendant was indicted on the following five charges with the offense date of 7 July 2010: conspiracy to traffic in heroin by possession; conspiracy to traffic in heroin by transportation; trafficking in heroin by possession; trafficking in heroin by transportation; and possession with the intent to sell or deliver heroin. On 6 October 2011, a jury found defendant guilty on all counts. Defendant was sentenced to two consecutive terms of 70 to 84 months imprisonment. _______________________________________ Defendant s sole issue on appeal is whether the trial court erred by denying his motion to dismiss one of the two conspiracy -4to traffic in heroin charges where the evidence was insufficient to support more than one agreement. The standard of review for motions to dismiss based on insufficiency of the evidence is as follows: In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (internal citations). The question is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citations and quotation marks omitted). A criminal conspiracy is an agreement by two or more persons to perform an unlawful act or to perform a lawful act in an unlawful manner. State v. Rozier, 69 N.C. App. 38, 49, 316 S.E.2d 893, 900 (1984) (citation omitted). -5[T]he gist of the crime of conspiracy is the agreement itself, not the commission of the substantive crime. . . . [W]here a series of agreements or acts constitutes a single conspiracy, a defendant cannot be subjected to multiple indictments consistently with the constitutional guarantee against double jeopardy. Id. at 52, 316 S.E.2d at 902 (citations omitted) (emphasis in original). 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. S.E.2d 603, conspiracy State v. Wilson, 106 N.C. App. 342, 345, 416 605 is (1992) complete (citation when the omitted). agreement A has been criminal reached. Rozier, 69 N.C. App. at 49, 316 S.E.2d at 900. Circumstantial evidence may be used to show a conspiracy. Id. at 49, 316 S.E.2d at 901. individual participate; charged a expressly mutual, implied Id. at 50, 316 S.E.2d at 901. It is not necessary that the state his understanding willingness is to sufficient. Furthermore, an agreement or understanding for the purposes of conspiracy may be inferred from the conduct of the parties. State v. Batchelor, 157 N.C. App. 421, 427, 579 S.E.2d 422, 427 (2003) (citation omitted). -6Defendant argues that his situation is analogous to State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595 (1987), and we agree. In Hicks, the defendant was charged with conspiracy to commit breaking and entering and conspiracy to commit larceny. 37, 356 involved S.E.2d the same offense date. noted that at 595. Both co-conspirators of these and conspiracy stemmed Id. at 42, 356 S.E.2d at 598. the State, having elected to from Id. at charges the same The Hicks Court charge separate conspiracies, must prove not only the existence of at least two agreements but also that they were separate. Id. The Hicks Court also held that under North Carolina law multiple overt acts arising from a single agreement do not permit prosecutions for multiple conspiracies. Id. Based on the foregoing, our Court concluded that [t]he whole objective of the agreement was to break into the house and get what [they] could get. The agreement was entered into during one meeting and with very little said and with one objective in mind. There was no evidence of two separate agreements or of any other meetings between the participants. Id. at 42, 356 S.E.2d at 598. In the case sub judice, the State s evidence established the existence defendant of conspired one with agreement Damian and only Arrechega to one conspiracy: drive to meet -7Detective Foushee on 7 July 2010 for the purpose of selling heroin. Upon arrival at a Bojangles restaurant, defendant motioned for Detective Foushee to park at a store adjacent to the restaurant. Once in the parking lot, Detective Foushee purchased heroin from passenger Damian Arrechega; defendant was the driver of the vehicle. The foregoing demonstrated that an agreement was entered into by defendant and Damian Arrechega on 7 July 2010 and that the objective of the agreement was to sell Detective Foushee heroin. Because multiple overt acts arising from a single agreement do not support a finding of multiple conspiracies, we hold that the State failed to meet its burden of showing two separate agreements between the co-conspirators to commit the substantive underlying offenses to traffic in heroin possession and to traffic in heroin by transportation. Therefore, one of defendant s conspiracy convictions must by Id. be vacated. Accordingly, we remand for entry with this opinion. Judges MCGEE and THIGPEN concur. Report per Rule 30(e). of judgment consistent
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