STATE OF NORTH CAROLINA
v. Wake County
LAWRENCE CLAY McGEE
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Steven A. Armstrong, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, for defendant-appellant.
On 4 November 2004, the Wake County grand jury indicted
defendant on charges of trafficking in cocaine by transportation,
trafficking in cocaine by possession, trafficking in cocaine by
delivery, and conspiracy to traffic in cocaine by possession,
delivery and transportation. The conspiracy indictment alleged
that defendant did conspire with Alexander Edward Stancil and
others to commit the felony of trafficking by possession, delivery,
transportation [of] 400 grams or more of cocaine. On 8 November
2004, Alexander Stancil was also indicted on a charge of conspiring
with defendant and others to traffic in cocaine by possession, sale
and delivery. On 10 November 2005, a jury found defendant guilty of the
three trafficking charges and the conspiracy charge. The trial
court consolidated the three trafficking convictions for judgment
and imposed a sentence of 175 to 219 months imprisonment. For the
conspiracy conviction, the trial court imposed a consecutive
sentence of 175 to 219 months imprisonment. At the conclusion of
a separate trial on 5 May 2006, a jury found Alexander Stancil to
be not guilty of the conspiracy charge. From the trial court's
judgments, defendant appeals.
In his sole argument on appeal, defendant contends that his conspiracy conviction must be set aside because the only other person (Alexander Stancil) charged with the conspiracy was acquitted. Since the remaining persons involved in the drug transaction were law enforcement officers and a confidential informant, defendant argues he cannot be convicted of conspiring with himself. Defendant's argument is not persuasive.
The general rule is that if all participants charged in a conspiracy have been legally acquitted, except the defendant, then the inconsistent charge or conviction against the sole remaining defendant must be set aside. State v. Gibson, 333 N.C. 29, 51, 424 S.E.2d 95, 107 (1992), overruled on other grounds by State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993). Although defendant correctly cites this general rule, he fails to cite or address the exception created by State v. Soles: [T]he conviction of one defendant in a conspiracy prosecution will be upheld where all alleged coconspirators are acquitted in a separate subsequenttrial. Soles, 119 N.C. App. 375, 380, 459 S.E.2d 4, 8, appeal dismissed and discretionary review denied, 341 N.C. 655, 462 S.E.2d 523 (1995). Because the alleged coconspirator, Alexander Stancil, was acquitted in a separate subsequent trial, the general rule of consistency is inapplicable to defendant's conspiracy conviction. Defendant's argument is overruled, and his conspiracy conviction shall not be disturbed.
Defendant failed to set out his remaining assignment of error in his brief. Because he has neither cited any authority nor stated any reason or argument in support of that assignment of error, it is deemed abandoned. See N.C.R. App. P. 28(b)(6). Defendant received a fair trial, free from prejudicial error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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