State v Flowers, (05-278) 11/15/2005

Appeal by defendant from judgment entered 24 September 2004 by Judge Jack A. Thompson in Columbus County Superior Court. Heard in the Court of Appeals 31 October 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General John R. Corne, for the State.

Sue Gengrich Berry for defendant-appellant.

CALABRIA, Judge.

     Marion Lamont Flowers (“Defendant”) was charged with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. He was acquitted of robbery with a dangerous weapon and was convicted of conspiracy to commit robbery with a dangerous weapon. He was sentenced to a minimum term of thirty- four months and a maximum term of fifty months in the North Carolina Department of Correction.
    The State presented evidence showing: that on 20 July 2001, two armed men, one wearing a red bandana around his face and the other wearing a toboggan with eye holes, robbed the BB&T Bank located near the Wellonton Apartments in Chadbourn, North Carolina and took approximately $1,200 in cash.     Harold Graham (“Harold”) testified for the State that on the night before the robbery, he and defendant planned the robbery of the BB&T Bank. On the morning of the robbery, a man named Kenwick Best (“Best”) came to Harold's residence. Defendant and Harold got into an automobile with Best. Harold Graham instructed Best to pick up his brother, Maurice Graham (“Maurice”) at their mother's house. After Maurice entered the vehicle, the four men discussed robbing the BB&T Bank. Best drove the vehicle to Wellonton Apartments where defendant, bearing a red bandana, and Best, bearing a black toboggan, exited the vehicle. Maurice then drove the vehicle to a pizza restaurant and finally to a trailer park near the Wellonton Apartments. Subsequently, Best and defendant came running and jumped into the vehicle with the Graham brothers. They rode to Best's grandfather's house, where defendant gave Harold and Maurice each $200.
    Maurice Graham corroborated the prior testimony of his brother, Harold, as to the sequence of events on 20 July 2001. Maurice testified that Harold, defendant and Best picked him up at his mother's house. While the men rode around, they talked about robbing a bank. Defendant and Best exited the vehicle at Wellonton Apartments. The Graham brothers then rode to the pizza establishment and to the trailer park. Defendant and Best came running and jumped in the vehicle. Maurice received $200 from either Best or defendant.
    Defendant first argues the indictment charging conspiracy to commit robbery with a dangerous weapon is deficient because itfails to allege the elements of the conspired offense, robbery with a dangerous weapon. This Court has explained that “a conspiracy indictment need not describe the subject crime with legal and technical accuracy because the charge is the crime of conspiracy and not a charge of committing the subject crime.” State v. Nicholson, 78 N.C. App. 398, 401, 337 S.E.2d 654, 657 (1985). Our Supreme Court has noted that a criminal conspiracy “is defined in this State as an agreement between two or more persons to do an unlawful act or do a lawful act in an unlawful way or by unlawful means.” State v. DeLuc, 306 N.C. 62, 75, 291 S.E.2d 607, 615 (1982) (citations and internal quotations omitted) , overruled on other grounds, State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987). The indictment in the case at bar charged that defendant “unlawfully, willfully, and feloniously did conspire with Kenwick Octavian Best to commit the felony of Robbery with a Dangerous Weapon, . . . .” Thus, the indictment clearly charged that an agreement between two people existed to commit a crime. Defendant's first assignment of error is dismissed.
    Next, defendant contends the court erred by denying his motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon. In ruling on a motion to dismiss, t he trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “The trial court's function is to determine whether the evidence will permit a reasonable inferencethat the defendant is guilty of the crimes charged.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). In making this determination, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by a jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
    Defendant argues the evidence is insufficient to show that defendant and Best conspired to commit robbery with a dangerous weapon as charged in the indictment. He submits that the evidence at best shows an agreement to commit the offense of common law robbery.
    To constitute a conspiracy to commit robbery with a dangerous weapon it is not necessary that the parties should have come together and agreed in express terms to unite for a common objective. In fact, “[a] mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.” State v. Smith, 237 N.C. 1, 16, 74 S.E.2d 291, 301 (1953), (quoting State v. Connor, 179 N.C. 752, 755, 103 S.E. 79, 80 (1920)). Moreover, “[d]irect proof of the charge [conspiracy] is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly tothe existence of a conspiracy.” State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933). Consequently, because only a mutual, implied understanding to commit conspiracy is required, this Court has held that it is not necessary that the conspirators “expressly agree to use a dangerous weapon prior to the robbery in order to submit a charge of conspiracy to commit robbery with a dangerous weapon to the jury.” State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d 176, 185 (2004), disc. review denied, 359 N.C. 194, 607 S.E.2d 658 (2004). Typically, sufficient evidence of such an implied understanding to commit robbery with a dangerous weapon includes both the conspiracy and the use of a gun during the robbery. See, e.g., State v. Lamb, 342 N.C. 151, 155-56, 463 S.E.2d 189, 191 (1991) (holding that where a criminal defendant, in a group of three, commits robbery where one of the other conspirators possesses and uses a gun , such evidence supports a guilty verdict of conspiracy to commit robbery with a dangerous weapon).
    Here, both Maurice and Harold testified that the four men, including defendant and Best, discussed robbing the BB&T bank while they were all seated together in the automobile earlier that day. After this discussion, both defendant and Best donned face coverings and, wielding guns, robbed the bank. Based upon this evidence, and as per the holding in Lamb, supra, a jury could reasonably infer the existence of a conspiracy between defendant and Best to commit robbery with a dangerous weapon.     We hold the court properly denied the motion to dismiss. This assignment of error is dismissed.
    No error.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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