Appeal by defendant from judgment entered 23 February 2004 by
Judge Jack W. Jenkins in Beaufort County Superior Court. Heard in
the Court of Appeals 14 April 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Judith Robb Bullock, for the State.
Paul T. Cleavenger for defendant-appellant.
TIMMONS-GOODSON, Judge.
Lashanna Michelle Warren (“defendant”) appeals her convictions
for four counts of corporate malfeasance, ten counts of conspiracy
to commit financial identity fraud, and six counts of financial
identity fraud. Because we conclude that the trial court erred by
refusing to dismiss the excess charges of conspiracy to commit
financial identity fraud, we vacate defendant's convictions in
part.
The State's evidence presented at trial tends to show the
following: In July 2001, defendant and Tiffany Washington
(“Washington”) were employed as cashiers at a Belk department store
in Washington, North Carolina. While employed at Belk, defendant
and Washington participated in an incentive program wherein theycould earn redeemable coupons called “Belk Bucks” if they were
successful in obtaining applications for a Belk credit card from
their customers. On 16 July 2001, Washington asked Hilda Bullock
(“Bullock”), a customer at Belk, to complete an application for a
Belk credit card. Bullock agreed, and she provided Washington with
the relevant information. After learning that her credit
application could not be processed at that time, Bullock instructed
Washington to keep trying to process her application, and to call
her at home once the application was approved. Bullock's
application was eventually processed and approved after she left
the store. After Bullock's temporary card and credit limit were
issued, Washington placed the credit card and its corresponding
documents near her cash register.
Shortly after Bullock's credit card and credit limit were
issued, defendant approached Washington's cash register and picked
up the credit card, which had fallen to the floor. Washington
explained to defendant that Bullock had left her application and
temporary credit card at the store. Defendant asked Washington
whether she was planning to turn the credit card into the manager,
and Washington replied that she was. In response, defendant
suggested that she and Washington use the credit card for their own
personal use. Washington agreed, and she and defendant thereafter
approached Yolonda Chesson (“Chesson”), a fellow Belk employee.
Defendant and Washington explained their plan to use the credit
card to Chesson, and, over the course of the next two weeks,
defendant, Washington, and Chesson purchased items using Bullock'scredit card.
After purchasing various items in the Washington store via
Bullock's card, defendant and Washington decided that a better
“selection” of items was located at the Belk store in Jacksonville,
North Carolina. Thereafter, on 29 August 2001, defendant and
Washington used the Belk credit card charge numbers of two other
Belk customers, Sylvia Wallace (“Wallace”) and Sandra Blake
(“Blake”), to purchase several Belk gift cards. Three gift cards
were charged to Wallace's credit card account, and one gift card
was charged to Blake's credit card account. Washington
subsequently drove to the Jacksonville Belk store and made various
purchases using the gift cards.
On 6 September 2001, Washington Police Department Detective
Jerry Davis (“Detective Davis”) was dispatched to investigate an
alleged embezzlement at Belk. Detective Davis interviewed
Washington for approximately two hours on 6 September 2001. During
her interview, Washington explained her involvement in the scheme
and initially denied that anyone else was involved in the
corresponding activities. However, she later informed Detective
Davis that defendant had first told Washington of “her plan to
defraud the company[,]” which included “using other people's Belk
charge accounts” to obtain merchandise. Washington also “advised
[Detective Davis] of customers' account numbers and told [him] they
could be used to obtain Belk gift cards.” Washington further
informed Detective Davis that Bullock, Wallace, and Blake were the
customers whose account numbers were used. Defendant, Washington, and Chesson were each subsequently
arrested and charged for their role in the scheme. On 3 March
2003, defendant was charged with four counts of corporate
malfeasance against Belk, ten counts of conspiracy to commit
financial identity fraud against Bullock, Wallace, and Blake, and
ten counts of financial identity fraud against Bullock, Wallace,
and Blake. Defendant's case proceeded to trial on 17 February
2004. At trial, Washington and Chesson testified on behalf of the
State. Defendant testified on her own behalf and denied her
involvement in the activities. On 21 February 2004, the jury found
defendant guilty of four counts of corporate malfeasance, ten
counts of conspiracy to commit financial identity fraud, and six
counts of financial identity fraud. The trial court subsequently
consolidated the convictions into three consecutive six-to-eight
month sentences, which it suspended for thirty-six months. The
trial court thereafter imposed intensive and supervised probation
upon defendant, as well as restitution in the amount of $4,022.92.
Defendant appeals.
The issues on appeal are whether the trial court erred by:
(I) refusing to dismiss all but one charge of conspiracy to commit
financial identity fraud; and (II) refusing to dismiss all but one
charge of corporate malfeasance.
Defendant first argues that the trial court erred by refusing
to dismiss all but one charge of conspiracy to commit financial
identity fraud. Defendant asserts that the State producedinsufficient evidence to establish that there was more than one
conspiracy among defendant and the other individuals. We agree.
“A trial court's denial of a defendant's motion to dismiss due
to insufficiency of the evidence is proper if the State has
presented 'substantial evidence' of each element of the offense
charged.”
State v. Tabron, 147 N.C. App. 303, 305, 556 S.E.2d 584,
585 (2001),
disc. review improvidently allowed, 356 N.C. 122, 564
S.E.2d 881 (2002). “'Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion.'”
Id. at 306, 556 S.E.2d at 585 (quoting
State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). “When
ruling on a motion to dismiss, a court must consider the evidence
in the light most favorable to the State, and the State is entitled
to all reasonable inferences that can be drawn from the evidence.”
Tabron, 147 N.C. App. at 306, 556 S.E.2d at 585.
“The essence of the crime of conspiracy is the agreement to
commit a substantive crime.”
State v. Medlin, 86 N.C. App. 114,
121, 357 S.E.2d 174, 178 (1987). “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.”
Id. at 122, 357 S.E.2d at 179
(citation omitted). “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.2d657, 661 (1996). “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. 38, 52,
316 S.E.2d 893, 902 (citation omitted),
cert. denied, 312 N.C. 88,
321 S.E.2d 907 (1984).
In the instant case, defendant was charged with ten counts of
conspiracy to commit financial identity fraud. Applying the
factors from
Rozier to the facts of the instant case, we conclude
that even when viewed in the light most favorable to the State, the
evidence establishes only one conspiracy among defendant and her
fellow participants. We note that each of the unlawful actions
related to the conspiracy in the instant case -- the purchase of
items using other individuals' financial identity -- transpired
during a short period of time: five days stretching over the
course of approximately one month. We also note that the
indictments alleged separate victims of the conspiracy, and that
the co-conspirators utilized differing means in furtherance of it.
However, we nevertheless recognize that despite the change in
means, the ends of the conspiracy remained the same: to obtain
items at Belk without paying for them. “[W]e have never required,
and do not herein adopt, absolute precision in examining the
similarities of the surrounding circumstances in order to determine
the number of conspiracies.”
State v. Brunson, 165 N.C. App. 667,
673, 599 S.E.2d 576, 580,
disc. review denied, 359 N.C. 71, 604S.E.2d 915 (2004). Furthermore, although the record indicates
Chesson played a role in part of the conspiracy but not in the
entire conspiracy, this Court has previously concluded that “[a]
single conspiracy is not transformed into multiple conspiracies
simply because its members vary occasionally and the same acts in
furtherance of it occur over a period of time.”
State v. Griffin,
112 N.C. App. 838, 841, 437 S.E.2d 390, 392 (1993). Finally, while
the testimony at trial suggests that the co-conspirators may have
been required to meet one another outside of Belk in order to
divide up their “purchases,” we note that there is no indication
that discussions at these meetings were focused upon any goal other
than obtaining merchandise from Belk without paying for it.
In light of the foregoing, we conclude that the evidence in
the instant case etablishes only one ongoing conspiracy to commit
financial identity fraud. Therefore, we hold that the trial court
erred by refusing to dismiss the excess
conspiracy charges.
Accordingly, we vacate all but the earliest of defendant's
convictions for conspiracy to commit financial identity fraud.
Rozier, 69 N.C. App. at 54, 316 S.E.2d at 903.
Defendant next argues that the trial court erred by refusing
to dismiss all but one charge of corporate malfeasance. We note
initially that, in the assignment of error corresponding to this
argument, defendant asserts
that the trial court erred by “not
deeming as one continuous act the . . . charges of Conspiracy to
Commit Corporate Malfeasance and the commission of Corporate
Malfeasance.” However, defendant was neither charged with norconvicted of “Conspiracy to Commit Corporate Malfeasance.”
Instead, as detailed above, defendant was charged with and
convicted of multiple counts of conspiracy to commit financial
identity fraud. We also note that despite having twice moved the
trial court to dismiss these charges, defendant assigns plain error
to the trial court's ruling on the issue. We remind defendant that
plain error review applies to those questions of law not properly
preserved by a defendant at trial, N.C.R. App. P. 10(c)(4) (2005),
and our Supreme Court “has only elected to review unpreserved
issues for plain error that involve instructional errors or the
admissibility of evidence.”
State v. Carpenter, 147 N.C. App. 386,
397, 556 S.E.2d 316, 323 (2001) (citing
State v. Steen, 352 N.C.
227, 536 S.E.2d 1 (2000),
cert. denied, 531 U.S. 1167, 148 L. Ed.
2d 997 (2001) and
State v. Gregory, 342 N.C. 580, 467 S.E.2d 28
(1996)). Furthermore, even where plain error review is available,
our courts have held that the appellant must specifically and
distinctly contend in his brief that the error constituted plain
error.
See State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36,
61 (2000),
cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).
In the instant case, although defendant refers to the alleged error
as “plain error” in her assignments of error, she makes no argument
supporting this contention in her brief. In light of the
foregoing, we conclude that defendant has failed to properly
preserve this issue for appeal, and, accordingly, we overrule
defendant's second argument.
To summarize: we conclude that no error has been shown withrespect to defendant's convictions for four counts of corporate
malfeasance and six counts of financial identity fraud. With
respect to defendant's conviction for ten counts of conspiracy to
commit financial identity fraud, we conclude that no error has been
shown regarding the earliest conspiracy offense, alleged in 03 CRS
4392. However, we vacate the convictions for the excess conspiracy
offenses alleged in 03 CRS 655, 03 CRS 656, 03 CRS 657, 03 CRS 658,
03 CRS 4389, 03 CRS 4390, 03 CRS 4391, 03 CRS 4393, and 03 CRS
4396.
No error in part; vacated in part.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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