State v Campbell, (04-403) 01/04/2005

Appeal by defendant from judgments entered 19 November 2003 by Judge B. Craig Ellis in Columbus County Superior Court. Heard in the Court of Appeals 29 November 2004.

Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.

Richard G. Roose for defendant-appellant.

ELMORE, Judge.

    A jury found defendant guilty of two counts of conspiracy to commit robbery with a dangerous weapon, but not guilty of robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. Entering judgment on the two conspiracies, the trial court sentenced defendant to consecutive prison terms of 29 to 44 months. Defendant gave timely notice of appeal.
    Viewed in the light most favorable to the State, the evidence showed that on 20 June 2002, defendant, Howard Lacey and Ritchie Campbell (Ritchie) held a meeting in defendant's bedroom and agreed to commit a robbery. They did not discuss a specific target, butsimply decided “[t]o get some money.” On the night of 21 June 2002, defendant's mother dropped the three associates off in the vicinity of a Best Western hotel. Each of them was carrying a gun. They walked around, passing several businesses that were closed. As they approached the Best Western, their “intention was to rob the place. Any place, really.” Lacey asked defendant and Ritchie, “Are y'all ready?” They “all agreed” to go forward with their plan. Ritchie walked to the door of the hotel with his gun in his hand. As Lacey was preparing to follow him, Ritchie returned and announced that the door was locked. They stayed by the hotel pool for a few minutes before running to Columbus Courts when the police arrived. Joanie McMillan, who was working at the Best Western, saw a black male “r[u]n up to the door with a gun in [his] hand” some time after midnight. McMillan unlocked the door and walked outside to investigate. She saw “three people running across where the pool was” towards a library. After fleeing the Best Western, defendant, Lacey and Ritchie “got a ride across town . . . by the hospital.” As they were walking toward the Homestead trailer park, defendant said, “Well we ain't going in until we get some money.” They saw a car parked behind a building and decided to wait for its owner. The car belonged to Konstantino Syrpis, who was working late at Konstantino's Restaurant. After waiting for fifteen to twenty minutes, defendant walked to the front of the building. When Syrpis came outside and started to open his car door, Lacey and Campbell approached him, their faces covered by cut-off shirt sleeves. Lacey pointed his gun at Syrpis and said, “Freeze. Thisis a stick up.” Defendant came around the side of the building and walked toward Syrpis from Lacey's left. Lacey heard a gunshot from defendant's direction. Syrpis was shot in the thigh and fell to the ground. Defendant told Syrpis “to give [] up his money[,]” When Syrpis produced only six or seven dollars from his pocket, the robbers beat him with their fists and cursed him. Defendant took the money, and ran towards Homestead with Lacey and Ritchie. Responding to a call, Whiteville Police Officer Jeremy Barber found Syrpis in the parking lot of Konstantino's Restaurant with a gunshot wound to the thigh.
    On appeal, defendant contends that the evidence reflected only a single conspiracy between him, Lacey and Ritchie to commit armed robbery and was thus insufficient to support a finding of two conspiracies. He assigns error to the trial court's denial of his motion to dismiss one of the two conspiracy charges, and to its failure to arrest judgment on one of his two convictions.
    For purposes of the criminal law, a conspiracy is “an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.” State v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975). “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. A single conspiracy may, and often does, consist of a series of different offenses.” State v. Griffin, 112 N.C. App. 838, 841, 437 S.E.2d 390, 392 (1993) (citing State v. Medlin, 86 N.C. App. 114, 122, 357 S.E.2d 174, 179 (1987). “Where, as here, the State elects to charge multiple separate conspiracies, it must prove the existence of separate and distinct agreements to commit the substantive offense(s).” State v. Dalton, 122 N.C. App. 666, 672, 471 S.E.2d 657, 661 (1996) (citing State v. Griffin, 112 N.C. App. 838, 840, 437 S.E.2d 390, 392 (1993)). “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.” State v. Brooks, 105 N.C. App. 413, 418, 413 S.E.2d 312, 314-15 (1992) (emphasis in original) (quoting Medlin, 86 N.C. App. at 121, 357 S.E.2d at 178).
    Because the distinction between whether multiple agreements constitute a single conspiracy or multiple conspiracies is a question of fact for the jury, see State v. Rozier, 69 N.C. App. 38, 54, 316 S.E.2d 893, 903, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984), this Court must determine whether the evidence was sufficient to permit a “rational juror” to find that defendant entered into two separate conspiracies. State v. Tirado, __ N.C. __, __, 599 S.E.2d 515, 534 (2004). “There is no simple test for determining 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.” 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) (citation omitted).
    We believe the State's evidence points unerringly to theexistence of only a single conspiracy between the three principals to commit robbery with a dangerous weapon. Examined in light of the litany of relevant factors under Rozier, the evidence showed a single meeting between defendant, Ritchie, and Lacey on the night of 20 June 2002, which resulted in an agreement among the men to commit a robbery. They did not identify any specific target for their crime, deciding only “[t]o get some money.” The following night, the three co-conspirators walked around looking for an open business to rob. Only upon seeing the light coming from the Best Western did they choose it as a prospective target. As described by Lacey, their “intention was to rob the place. Any place, really.” Deterred by the hotel's locked door, they fled the police and ultimately obtained a ride across town. Although they had started walking toward Homestead when defendant announced, “We're not going in until we get some money[,]” there is no showing that the three co-conspirators abandoned their original conspiracy and formed a second, distinct conspiracy with the same general objective during this brief interval. Instead, they simply continued to pursue the agreed-upon goal of obtaining money from “any place” they could find. Only after spotting Syrpis' car and waiting for him to come outside did they bring their plan to fruition. In light of the single meeting between the co- conspirators, the general objective of their agreement, and the fact that the same three co-conspirators attempted the two robberies in the span of a few hours in a single morning, we hold the trial court erred in entering judgment on the two conspiracycharges. See Dalton, 122 N.C. App. at 673, 471 S.E.2d at 661-62 (finding only a single conspiracy “to 'find somebody that night and rape them[,]'” where the co-conspirators made multiple attempts to commit rape in the course of one night); see also State v. Tabron, 147 N.C. App. 303, 556 S.E.2d 584 (2001), disc. review improvidently allowed, 356 N.C. 122, 564 S.E.2d 881 (2002); State v. Wilson, 106 N.C. App. 342, 416 S.E.2d 603 (1992). Accordingly, we arrest judgment on defendant's second conspiracy conviction in 03 CRS 6432.
    No error in 03 CRS 6431; judgment arrested in 03 CRS 6432.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***