An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1111

NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

STATE OF NORTH CAROLINA
                            Beaufort County
v .                         Nos.    03 CRS 655-58
                                03 CRS 4389-93
LASHANNA MICHELLE WARREN                03 CRS 4396

    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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