IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-226
Filed: 7 November 2017
Guilford County, No. 14 CRS 71535-36, 71540-42, 71544, 71555-57, 71559-64
STATE OF NORTH CAROLINA
v.
ANTONIO LAMAR STIMPSON
Appeal by defendant from judgments entered 28 April 2016 by Judge Susan E.
Bray in Guilford County Superior Court. Heard in the Court of Appeals 23 August
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General David
P. Brenskelle, for the State.
The Epstein Law Firm PLLC, by Drew Nelson, for defendant-appellant.
TYSON, Judge.
Antonio Lamar Stimpson (“Defendant”) appeals from judgments entered after
a jury convicted him of discharging a firearm into an occupied property, discharging
a firearm into an occupied vehicle, five counts of conspiracy to commit robbery with
a firearm, six counts of robbery with a firearm, and two counts of attempted robbery
with a firearm. Defendant has abandoned his appeal on all convictions and
judgments, except for four of the five conspiracy convictions. We find no error in any
of Defendant’s convictions and judgments.
I. Factual Background
STATE V STIMPSON
Opinion of the Court
A. The Crimes
1. Smith
In the early morning hours of 22 March 2014, Debra Smith left a hair salon on
Summit Avenue in Greensboro and entered her vehicle. A dark colored Jeep
Cherokee vehicle swiftly pulled up and blocked her from leaving. Ms. Smith testified
she saw two men exit the Jeep, with one man carrying a pump shotgun. The men
wore masks and dark clothing. Ms. Smith was ordered to exit her vehicle and
instructed to “give us your money.”
Ms. Smith testified she was “scared for her life” when a gunshot was fired near
her head. She fell onto the pavement as she exited from her vehicle. Ms. Smith told
the men she did not have any money. One of the men with a shotgun began to taunt
her. The other man stated, “Come on, man, take the vehicle” and the men got into
Ms. Smith’s car and drove it away.
2. Eban and Nie
On the same morning at about 5:45 a.m., Kler Eban was watching from the
front door of his home on Sunrise Valley Road in Greensboro, as his wife walked to
her car to leave for work. He saw three men walk past his house. Mr. Eban testified
the men returned and two went behind his wife’s car and one came toward the door
of his house and shouted at him to open the door. Mr. Eban testified the men’s faces
were covered. One of the men pointed a gun wrapped in cloth at Mr. Eban.
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STATE V STIMPSON
Opinion of the Court
Mr. Eban heard a gunshot and attempted to get out of the door to assist his
wife. Mr. Eban’s wife, Lieu Nie, testified a red Jeep was parked behind her car. The
men had shot at her through the driver’s side window while she was sitting in the
driver’s seat.
Two shots were also fired in Mr. Eban’s direction. Ms. Nie crawled over the
front seat and escaped through the rear door. The robbers entered Ms. Nie’s car and
stole a shopping bag of new cooking utensils. Mr. Eban testified one of the men got
into the Jeep and two of them got into his wife’s car and drove it away.
3. Nareau
Around 6:30 a.m., John Nareau drove his car into a parking space at his
workplace on Norwalk Street in Greensboro. As he exited his vehicle, a male got in
front of him and raised what appeared to be a sawed-off shot gun. Mr. Nareau was
told “don’t try anything. There’s two in the back.” Mr. Nareau testified the man wore
a mask and demanded his wallet and cellphone. After handing over his wallet and
phone, Mr. Nareau ran away and watched the men get into a dark colored Jeep and
drive away.
4. Tomlin, White, Wilkerson, and Mork
At a little before 7:00 a.m. on the same date, four friends, Elizabeth Tomlin,
Brinson White, Clair Wilkerson and Wesley Mork, were loading luggage in the trunk
of their rental car, when three men yelled at them “to turn around, mother f—ker;”
and “get down mother f—ker.” Ms. Tomlin saw the men exit from a red Jeep parked
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STATE V STIMPSON
Opinion of the Court
30-40 feet away. The men wore masks and dark clothing and carried guns. One of
the guns appeared to be a sawed-off shotgun. The two women were chased by one
man, while Mr. Carter and Mr. Mork were detained on the ground by the other two
men from the Jeep. Mr. Mork’s wallet and cash were stolen and cash was stolen from
Mr. Carter.
During the pursuit, Ms. Tomlin’s and Ms. Wilkerson’s bags were taken. One
of the attackers yelled “get in the car and take the car.” The keys to the rental car
were not in the vehicle, so all three men ran back to the Jeep and left.
5. Holland
Nicholas Holland was the final victim of the related crimes that occurred that
morning. As Mr. Holland left his residence on Tremont Street in Greensboro, he
noticed two males walk past the house. Mr. Holland observed a Jeep vehicle quickly
pull up in front of his house. A masked male with a handgun demanded, “Give me
what you have.” Mr. Holland offered his brief case and car keys and attempted to
run away. One of the men chased him until the same Jeep pulled up and the man
climbed inside. The Jeep sped away.
B. Investigations
In response to the robberies, Greensboro Police Detective Devin Allis received
a dispatch with a description of the dark colored Jeep Cherokee being involved.
Detective Allis pursued the Jeep and apprehended the driver, Aaron Spivey, after a
chase. Mr. Spivey was arrested with Mr. Mork’s wallet in his possession.
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STATE V STIMPSON
Opinion of the Court
After Spivey’s arrest, officers located Defendant and LeMarcus McKinnon
walking in a nearby area. Defendant and McKinnon ran as the officers approached
and had identified themselves. Defendant was apprehended by Lieutenant Larry
Patterson. When arrested, Defendant was wearing a dark colored T-shirt, dark blue
jeans and grey sneakers. He had cash, Mr. Nareau’s cellphone and the keys to Ms.
Nie’s car in his possession.
When interviewed by police, Defendant initially denied any involvement in the
robberies. Eventually Defendant admitted he had been present in the dark Jeep
Cherokee with Spivey and McKinnon. Defendant stated he and McKinnon were
cousins and were “tight.” Defendant acknowledged he had met Spivey the previous
week. Defendant also told police he had handled one of the guns a few days before
the robberies.
Defendant told police officers he had been a passenger in the Jeep and
witnessed the robberies perpetrated by the others. Defendant admitted driving the
Jeep from the scene of the robbery of Ms. Nie and to later meeting Spivey and
McKinnon for the subsequent robberies.
Officers recovered three pair of gloves, a blue toboggan, a black and grey
bandana and a black headband or neckwarmer from inside the passenger area of the
Jeep Cherokee. The handbags and briefcase belonging to the various victims were
also recovered from inside the Jeep.
II. Jurisdiction
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STATE V STIMPSON
Opinion of the Court
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015)
and N.C. Gen. Stat. § 15A-1444(a) (2015).
III. Issue
Defendant asserts the trial court erred by failing to dismiss four of the
conspiracy charges and argues the State’s evidence supported only a single charge.
IV. Standard of Review
“We review the trial court’s denial of a motion to dismiss de novo.” State v.
Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010). Under a de novo
standard of review, this Court “considers the matter anew and freely substitutes its
own judgment for that of the trial court.” Id.
In ruling on a motion to dismiss for insufficiency of the evidence,
the trial court must consider the evidence in the light most
favorable to the State, drawing all reasonable inferences in
the State’s favor. All evidence, competent or incompetent,
must be considered. Any contradictions or conflicts in the
evidence are resolved in favor of the State, and evidence
unfavorable to the State is not considered. . . . [S]o long as
the evidence supports a reasonable inference of the
defendant’s guilt, a motion to dismiss is properly denied
even though the evidence also permits a reasonable
inference of the defendant’s innocence. The test for
sufficiency of the evidence is the same whether the
evidence is direct, circumstantial or both.
State v. Bradshaw, 366 N.C. 90, 92-93, 728 S.E.2d 345, 347 (2012) (emphasis
supplied) (internal citations and quotation marks omitted).
V. Analysis
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STATE V STIMPSON
Opinion of the Court
A. State’s evidence
“A criminal conspiracy is an agreement between two or more persons to do an
unlawful act . . . .” State v. Massey, 76 N.C. App. 660, 661, 334 S.E.2d 71, 72 (1985).
The agreement to commit the unlawful act may be established by circumstantial
evidence. State v. Brewton, 173 N.C. App. 323, 327-28, 618 S.E.2d 850, 854-55 (2005).
A conspiracy ordinarily “ends with the attainment of its criminal objectives
. . . .” State v. Tirado, 358 N.C. 551, 577, 599 S.E.2d 515, 533 (2004), cert. denied sub
nom, Queen v. N.C., 544 U.S. 909, 161 L. Ed. 2d 286 (2005) (citation omitted). “The
question of whether multiple agreements constitute a single conspiracy or multiple
conspiracies is a question of fact for the jury.” Id. (citation omitted).
The State alleged Defendant, Mr. Spivey and Mr. McKinnon conspired to
commit the robberies of Ms. Smith, Ms. Lie, Mr. Nareau, Ms. Tomlin, Ms. Wilkerson,
Mr. Mork and Mr. Holland. The State proceeded on five indictments alleging each
incident as a separate conspiracy. The State did not offer the testimony of Spivey or
McKinnon, Defendant’s alleged co-conspirators. The only witnesses called by the
State were the victims of the robberies and the police officers involved in the
investigation of the crimes.
We all agree the evidence supports the conclusion that Defendant, Spivey and
McKinnon conspired to commit the robberies. The State’s evidence showed
Defendant and his compatriots were all wearing dark clothing. Implements
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STATE V STIMPSON
Opinion of the Court
indicating planning in advance and to assist committing robberies were recovered
from inside the Jeep: head and face coverings, gloves, and weapons.
Defendant testified concerning his relationship with McKinnon, his cousin,
and that he had met Spivey the week prior to the crimes, and had handled a shotgun
used in the robberies a few days before the robberies and admitted being present
inside the Jeep Cherokee when the crimes occurred. All three men had been together
on the afternoon of 21 March 2014. Defendant testified he, Spivey and McKinnon
had been drinking and taking drugs together during the evening before and into the
morning of the robberies and that all three men had headed out and traveled together
in the early morning hours in the Jeep.
B. Single Conspiracy Cases
Defendant argues all of the above facts present only evidence of a single
conspiracy to commit robberies on the morning of 22 March 2014. Defendant asserts
State v. Medlin, 86 N.C. App. 114, 357 S.E.2d 174 (1987) and the cases which follow
it, control the outcome of his case. See State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303
(1989); State v. Wilson, 106 N.C. App. 342, 416 S.E.2d 603 (1992) and State v. Griffin,
112 N.C. App. 838, 437 S.E.2d 390 (1993). We address each in turn.
1. State v. Medlin
In Medlin, the defendant and two others were charged with break-ins and
thefts of seven retail stores over the period of four months. Medlin, 86 N.C. App. at
115, 357 S.E.2d at 175. Defendant-Medlin operated a thrift store where co-
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STATE V STIMPSON
Opinion of the Court
conspirators Cox and Williams would “hang out.” Id. at 118, 357 S.E.2d at 177. Cox
and Williams testified the break-ins were Medlin’s idea. The State’s evidence showed
all the break-ins occurred in essentially the same manner: Cox and Williams would
break a store window, climb through the hole and carry away items. The defendant
would drive his truck to the stores to assist the others in carrying away the stolen
goods. The participants met after the break-ins to divide the stolen items and to
discuss the next break-in. Id. at 122, 357 S.E.2d at 179. For each of the break-ins,
the defendant was charged and convicted under separate indictments for conspiring
with Cox and Williams to commit the ten felonious break-ins. Id. at 121, 357 S.E.2d
at 178.
This Court recognized “[w]hen 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.” Id. (emphasis in original) (citing United States v. Kissel, 218 U.S. 601, 54
L. Ed. 1168 (1910)). While the offense “is complete upon the formation of the unlawful
agreement, the offense continues until the conspiracy comes to fruition . . . .” Id. at
122, 357 S.E.2d at 179.
While there is no simple test for determining whether there was one conspiracy
or multiple conspiracies, the Court acknowledged several factors impact the
determination of the number of conspiracies, including: “time intervals, participants,
objectives, and number of meetings.” Id.; see also Tirado, 358 N.C. at 577, 599 S.E.2d
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STATE V STIMPSON
Opinion of the Court
at 533 (“The nature of the agreement or agreements, the objectives of the
conspiracies, the time interval between them, the number of participants, and the
number of meetings are all factors that may be considered.”).
2. State v. Fink
In Fink, the conspiracies charged had occurred within hours of each other.
Fink, 92 N.C. App. at 533, 375 S.E.2d at 309. The participants in the first conspiracy
alleged were the defendant-Fink, his brothers, and one of their “select” customers;
the participants in the second conspiracy alleged were Fink and his brothers. Id. A
panel of this Court found that while “the amount of cocaine varied in the first and
second alleged conspiracies, the objective was the same: to traffic in cocaine.” Id.
Furthermore at trial, the State argued “there was a ‘continuing conspiracy’ among
the defendants.” Id. This Court recognized a single conspiracy is not necessarily
“transformed into multiple conspiracies simply because . . . the same acts in
furtherance of it occur over a period of time.” Id. at 532, 375 S.E.2d at 309. The Court
in Fink held evidence showed there was only one “mutual, implied understanding
among the brothers to commit the unlawful act of trafficking in cocaine.” Id. at 530,
375 S.E.2d at 308.
3. State v. Wilson
In State v. Wilson, 106 N.C. App. 342, 344, 416 S.E.2d 603, 604 (1992), “a series
of robberies occurred in and around Durham during a two week period in December
1988.” One of the participants in the robberies in Wilson was a witness for the State.
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STATE V STIMPSON
Opinion of the Court
He testified that a few days before their first robbery, “defendant told him that cash
money . . . was what it was all about and the onliest [sic] way to get cash money was
in armed robberies.” Id. at 346, 416 S.E.2d at 605. The co-conspirator also testified
that once they started committing the robberies, the men did not want to stop
“robbing places.” Id.
This Court found the facts of Wilson “to be legally indistinguishable from
Medlin” and stated, “evidence that a common scheme of a single conspiracy to commit
armed robberies to acquire cash existed.” Id. at 346, 416 S.E.2d at 605.
4. State v. Griffin
This Court also reached a similar conclusion in State v. Griffin, 112 N.C. App.
838, 437 S.E.2d 390 (1993). In Griffin, the State failed to prove more than one
conspiracy, where the offenses occurred over a one month period, the indictments
alleged the defendant had conspired with the same participants for each conspiracy
count and with the same objective. Id. at 841, 437 S.E.2d at 392.
Furthermore, “the State presented no evidence concerning the number of
meetings which took place between [the] defendant and the other participants.” Id.
“[W]hen the State elects to charge separate conspiracies, it must prove not only the
existence of at least two agreements, but also that they were separate.” Id. at 840,
437 S.E.2d at 392; see also State v. Rozier, 69 N.C. App. 38, 52, 316 S.E.2d 893, 902
(vacating defendant’s additional conspiracy counts where multiple overt acts arising
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STATE V STIMPSON
Opinion of the Court
from a single agreement to sell large amounts of cocaine do not permit prosecutions
for multiple conspiracies), cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984).
Here, Defendant argues none of the other perpetrators testified at trial and the
State offered no direct evidence of any planning or conversations before or between
each event. The State offered no testimony concerning any discussions between the
co-participants before, during or after each robbery. Defendant argues the State’s
evidence was sufficient to allow the jury to infer only a single conspiracy had occurred
based upon the implements found in the Jeep, the victims’ belongings found on all of
the culprits, and Defendant’s own statements that he had met up with the co-
conspirators before their crime spree began. We disagree.
C. Multiple Conspiracies
The State asserts the facts before us are distinguishable from the line of cases
above. Unlike the facts in State v. Medlin, no evidence shows any meeting took place
between Defendant and the other two robbers subsequent to any of the robberies to
plan additional robberies in furtherance of any prior agreement to engage in as many
crimes as possible, only that the three men were drinking and doing drugs together
the evening and morning before the crimes were committed. There was no evidence
that the Defendant and his co-conspirators conspired to engage in as many robberies
as they could. They agreed and engaged in random robberies as the opportunities
appeared before them.
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STATE V STIMPSON
Opinion of the Court
The dissenting judge asserts the State “impliedly” admits it did not prove five
separate agreements. We disagree. On brief, the State acknowledges there was no
proof of any meeting about or discussion between Defendant and the other
perpetrators to plan to commit a series of robberies. Evidence was offered by the State
and by Defendant of meetings and interactions with Defendant and the other
conspirators, before and between each robbery, but no evidence of the conversations.
The facts in Wilson are also dissimilar to the instant case. No evidence shows
any meeting being held between Defendant and the other robbers prior to the
robberies to discuss or plan the robberies, or the specific property to be stolen during
the course of the robberies. Unlike the facts in Fink and Griffin, there is no evidence
of a meeting between Defendant and the other two perpetrators to devise a single
plan to engage in a series of robberies.
The dissent finds Defendant’s case to be most similar to Medlin. However the
State’s evidence showed defendant-Medlin initiated the idea and suggested to his co-
conspirators the plan to break in and steal the televisions and radios that he could
sell in his thrift store. Medlin, 86 N.C. App. at 119, 357 S.E.2d at 177. The multiple
break-ins were part of a single plan to steal merchandise to be sold at Medlin’s thrift
store. Id. at 122, 357 S.E.2d at 179. Here, the crimes were ones of opportunity, where
differing victims were accosted and items were stolen from them as Defendant and
his co-conspirators happened to come upon them.
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STATE V STIMPSON
Opinion of the Court
No evidence limits Defendant as engaged in a one-time, pre-planned and
organized, ongoing and continuing conspiracy to engage in robbery and the other
crimes. In particular, the random nature and happenstance of the robberies and
related crimes here do not indicate a one-time, pre-planned conspiracy. The victims
and property stolen were not connected. The victims and crimes committed arose at
random and by pure opportunity. Each of the series of crimes on the various victims
was committed and completed before Defendant and his co-conspirators moved on
and happened upon and mutually agreed to rob and commit other crimes on their
next targets and victims of opportunity. Defendant’s argument is overruled.
1. State v. Roberts
In State v. Roberts, 176 N.C. App. 159, 625 S.E.2d 846 (2006), the defendant
was convicted of two counts of conspiring to commit first degree burglary and robbery
with a dangerous weapon for burglaries and robberies which occurred on two
consecutive nights. On the first night, the defendant and others discussed “robbing
someone.” Id. at 161, 625 S.E.2d at 848. The conspirators then burglarized and
robbed two separate victims. Id. On the second night, the defendant took an active
part in another burglary and robbery of different victims, but there was no testimony
that the agreement of the first night covered the acts of the second. Id.
This Court determined the State had shown separate conspiracies where the
defendant and two men agreed to rob someone and nothing else showed subsequent
similar criminal acts were committed as part of their initial agreement. Id. at 167,
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STATE V STIMPSON
Opinion of the Court
625 S.E.2d 852. Viewed in the light most favorable to the State, sufficient evidence
was presented to allow the jury to find the defendant was involved in two separate
conspiracies. Id.
2. State v. Glisson
A recent case before this Court addressed the defendant’s argument that he
had engaged in a single conspiracy to complete three separate transactions. State v.
Glisson, __ N.C. App. __, 796 S.E.2d 124 (2017). In Glisson, the defendant sold
oxycodone to an undercover police officer in three separate controlled drug
transactions with each transaction being a month or more apart. Id. at. __, 796 S.E.2d
at 126. No evidence was offered to suggest that the defendant planned the
transactions as a series. An informant or the police initiated each sale. Id at. __, 796
S.E.2d at 129.
This Court held “evidence was sufficient to support a reasonable inference that
the defendant planned each transaction in response to separate, individual requests
by the buyers . . . .” Id. “While the objectives of each [crime] may have been similar,
the agreed upon amount differed and none of the transactions contemplated future
transactions.” Id.
Considering the totality of the circumstances in the present case, and
reviewing the evidence in the light most favorable to the State, sufficient evidence
supports a reasonable inference for the jury to consider and conclude that Defendant
was involved in five separate conspiracies to commit armed robbery.
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STATE V STIMPSON
Opinion of the Court
While the dissenting opinion sets forth our same standard of review on motions
to dismiss, it appears to ignore its application to the motion to dismiss in the case
before us. “In ‘borderline’ or close cases, our courts have consistently expressed a
preference for submitting issues to the jury, both in reliance on the common sense
and fairness of the twelve and to avoid unnecessary appeals.” State v. Hamilton, 77
N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations omitted) review denied, 315
N.C. 593, 341 S.E.2d 33 (1986). “The question of whether multiple agreements
constitute a single conspiracy or multiple conspiracies is a question of fact for the
jury.” Tirado, N.C. App. at 577, 599 S.E.2d at 533 (citation omitted). The trial court
did not err by denying Defendant’s motion to dismiss and properly submitted all five
conspiracy counts to the jury.
VI. Conclusion
In a motion to dismiss, the trial court must consider the evidence of multiple
conspiracies in the light most favorable to the State and give the State every
reasonable inference to be draw from the evidence presented. Bradshaw, 366 N.C. at
92-93, 728 S.E.2d at 347. We find no error in Defendant’s convictions or the
judgments entered thereon. It is so ordered.
NO ERROR.
Judge STROUD concurs.
Judge ELMORE dissents with separate opinion.
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No. COA17-226 – State v. Stimpson
ELMORE, Judge, dissenting.
I respectfully disagree with the majority’s decision to affirm the trial court’s
denial of defendant’s motions to dismiss four of the five counts of conspiracy to commit
robbery with a firearm. The State failed to present substantial evidence of multiple
agreements between defendant and his co-conspirators as required to prove more
than one conspiracy. Applying the four factors from State v. Rozier, 69 N.C. App. 38,
52, 316 S.E.2d 893, 902 (1984), the State only proved that defendant engaged in one
conspiracy. Accordingly, I respectfully dissent.
I. Standard of Review
A trial court’s denial of a motion to dismiss is accorded de novo review. State
v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010). A trial court properly
denies a defendant’s motion to dismiss if “there is substantial evidence (1) of each
essential element of the offense charged, . . . and (2) of defendant’s being the
perpetrator of such offense.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980) Whether evidence is substantial “is a question of law for the court and is
reviewed de novo. Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.” State v. Glisson, ___ N.C. App.
___, ___, 796 S.E.2d 124, 12728 (2017) (internal citations and quotation marks
omitted). On a motion to dismiss, a trial court must consider the evidence in a light
most favorable to the State. State v. Stone, 323 N.C. 447, 451, 373 S.E.2d 430, 433
STATE V. STIMPSON
Elmore, J., dissenting.
(1988). A motion to dismiss is properly denied when the evidence gives rise to a
reasonable inference of guilt and is properly allowed when the evidence only raises a
suspicion or conjecture as to the defendant’s guilt. Id. at 452, 373 S.E.2d at 433.
Criminal Conspiracy
“A criminal conspiracy is an agreement between two or more people to do
an unlawful act . . . . [T]o prove conspiracy, the State need not prove an express
agreement; evidence tending to show a mutual, implied understanding will suffice.”
State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (internal citation
omitted). When the State charges a defendant with two or more conspiracies, “it must
prove not only the existence of at least two agreements but also that they were
separate.” State v. Griffin, 112 N.C. App. 838, 840, 437 S.E.2d 390, 392 (1993)
(emphasis added). “A single conspiracy may, and often does, consist of a series of
different offenses.” Id. at 841, 437 S.E.2d at 392. However, a series of different
offenses “arising from a single agreement [does] not permit prosecutions for multiple
conspiracies.” Rozier, 69 N.C. App. at 52, 316 S.E.2d at 902; see also State v. Howell,
169 N.C. App. 741, 749, 611 S.E.2d 200, 20506 (2005) (arresting judgment for one of
two drug conspiracy convictions when there was only evidence of “one agreement or
mutual understanding” and multiple overt acts (emphasis added)). Such
prosecutions are inconsistent with the constitutional prohibition against double
jeopardy. State v. Medlin, 86 N.C. App. 114, 121, 357 S.E.2d 174, 178 (1987) (citing
United States v. Kissel, 218 U.S. 601, 31 S. Ct. 124, 54 L. Ed. 1168 (1910)). “It is the
2
STATE V. STIMPSON
Elmore, J., dissenting.
number of separate agreements, rather than the number of substantive offenses
agreed upon, which determines the number of conspiracies.” State v. Worthington,
84 N.C. App. 150, 163, 352 S.E.2d 695, 703, disc. rev. denied, 319 N.C. 677, 356 S.E.2d
785 (1987) (citations omitted).
Nevertheless, it is difficult to determine whether a single or multiple
conspiracies are involved in a particular case. This Court in Rozier established four
factors to consider when determining whether a defendant has committed single or
multiple conspiracies. 69 N.C. App. at 52, 316 S.E.2d at 902. Those factors are (1)
the time intervals between the crimes, (2) the specific participants involved, (3) the
conspiracy’s objectives, and (4) the number of meetings among the participants. Id.
On appeal, defendant argues that applying the Rozier factors to his case reveals a
single conspiracy, not five. I agree. To support his argument, defendant cites to four
decisions from this Court that applied the Rozier factors and found a single
conspiracy.
III. Summary of Rozier Cases
A. State v. Medlin
In State v. Medlin, the State’s evidence showed that the defendant participated
in ten break-ins of retail stores across Durham from May to August of 1985. 86 N.C.
App. at 121, 357 S.E.2d at 178. The robberies were conducted in a similar manner;
various electronics were stolen from each location and the defendant and his co-
conspirator, Walter Cox, participated in all ten robberies while a third co-conspirator
3
STATE V. STIMPSON
Elmore, J., dissenting.
participated in three. Id. at 117–21, 357 S.E.2d at 17678. Cox testified that he and
the defendant would meet after each break-in to plan the next one. Id. at 122, 357
S.E.2d at 179. The defendant was convicted of seven counts of conspiracy to break or
enter and appealed the judgment, arguing that the State’s evidence showed only “a
single scheme or plan to commit an ongoing series of felonious breakings or
enterings.” Id. at 121, 357 S.E.2d at 178.
The Medlin panel, applying the Rozier factors, “[found] ample evidence of a
single conspiracy.” Id. at 122, 357 S.E.2d at 179. The panel first determined the
break-ins were conducted over a short time period of four months, “some within ten
days of each other.” Id. Second, these crimes were committed by the same three
participants, despite the third co-conspirator not being present for some of the
robberies. Id. Third, the participants had the common objective to steal televisions
and radios from Durham retail stores. Id. Finally, the panel considered the number
of meetings among the participants. Although the defendant met with his co-
conspirators generally after each break-in, the purpose of the meetings was to “divide
the spoils and discuss the next break-in.” Id. The panel summarized the fourth
Rozier factor as follows:
The gist of the meetings was to plan subsequent
break-ins in furtherance of the original unlawful
agreement made sometime before the first break-in. We
are hard pressed to find facts more clearly telling of an
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STATE V. STIMPSON
Elmore, J., dissenting.
ongoing series of acts in furtherance of a single conspiracy
to break or enter. Rather than show ten separate
conspiracies to break or enter on ten separate occasions as
the State contends, these facts show one unlawful
agreement to break or enter as many times as the
participants could get away with.
Id. Accordingly, the Medlin panel vacated the defendant’s seven conspiracy
convictions and remanded for entry of a judgment on one conspiracy conviction, with
instructions to resentence the defendant on this single conspiracy conviction. Id. at
123, 357 S.E.2d at 179.
B. State v. Wilson
In State v. Wilson, the State’s evidence showed the defendant participated in a
series of residential and retail robberies that occurred in Durham over two weeks in
December 1988. 106 N.C. App. 342, 344, 416 S.E.2d 603, 604 (1992). The robberies
were similar in nature and either two or three perpetrators in ski masks committed
each one. Id. The defendant was convicted of, inter alia, four counts of conspiracy to
commit armed robbery. Id. at 345, 416 S.E.2d at 604. The defendant appealed the
judgment, arguing that three of the conspiracy convictions should be vacated because
the evidence only supported one conspiracy. Id.
On appeal, the Wilson panel concluded the facts were “legally
indistinguishable” from Medlin. Id. at 346, 416 S.E.2d at 605. Applying the Rozier
5
STATE V. STIMPSON
Elmore, J., dissenting.
factors, the panel first determined that the time period for these robberies was a mere
two weeks — even shorter than in Medlin. Id. Second, the participants were
generally the same in each robbery. Id. “The fact that in two of the robberies the
conspirators solicited the assistance of a third man is inconsequential.” Id.; see, e.g.,
State v. Overton, 60 N.C. App. 1, 13, 298 S.E.2d 695, 70203 (1982), disc. rev.
denied, 307 N.C. 580, 299 S.E.2d 652 (1983). Third, there was a common objective
based on the similar nature of the robberies and one participant’s testimony that the
purpose was to acquire cash. Id. at 346–47, 416 S.E.2d at 605–06. Finally, the panel
determined that, unlike Medlin, there was no evidence of meetings among the
participants between each robbery. Id. at 346, 416 S.E.2d at 605. As a result, the
panel held there was evidence of one conspiracy “ ‘to break or enter as many times as
the participants could get away with.’ ” Id. at 347, 416 S.E.2d at 606 (quoting Medlin,
86 N.C. at 122, 357 S.E.2d at 179). The panel vacated three of the defendant’s
conspiracy convictions and remanded with instructions to resentence. Id.
C. State v. Griffin
In State v. Griffin, the defendant was indicted on eight counts of conspiracy to
provide an inmate with a controlled substance. 112 N.C. App. at 838, 437 S.E.2d at
391. The State’s evidence showed that the defendant conspired with civilians and
other inmates to smuggle various prescription drugs into the prison so the defendant
could make a profit, and drugs were smuggled into the prison as a part of this
conspiracy on at least four separate occasions in June 1991. Id. at 839–40, 437 S.E.2d
6
STATE V. STIMPSON
Elmore, J., dissenting.
at 39192. The defendant was convicted of four counts of conspiracy and appealed,
arguing there was only a single scheme to bring drugs into the prison. Id. at 840, 437
S.E.2d at 392.
The Griffin panel applied the Rozier factors and held that this amounted to
one conspiracy, not four. Id. at 841, 437 S.E.2d at 392. First, the panel determined
the one-month span was a short time interval. Id. Second, there were four common
participants based on who the State named in its indictments. Id. Third, the common
objective of each conspiracy was to deliver controlled substances to an inmate to sell
for a profit. Id. “Finally, the State presented no evidence concerning the number of
meetings which took place between [the] defendant and the other participants.” Id.
Thus, the panel vacated three of the defendant’s four conspiracy convictions and
remanded for resentencing. Id. at 842, 437 S.E.2d at 393.
D. State v. Fink
In State v. Fink, the State’s evidence revealed that the defendant and his
brothers sold cocaine from their house. 92 N.C. App. 523, 525, 375 S.E.2d 303, 304
(1989). One of the buyers was an undercover SBI agent who purchased cocaine from
the defendant over the course of several months. Id. at 525, 375 S.E.2d at 305. The
basis of the State’s two conspiracy charges of trafficking in cocaine occurred on the
evening of 19 February and the morning of 20 February 1987. Id. at 525–26, 375
S.E.2d at 305. The undercover agent conducted a drug buy at the defendant’s
residence on the 19th and executed a search warrant the next morning, and cocaine
7
STATE V. STIMPSON
Elmore, J., dissenting.
was found on both occasions. Id. The defendant was convicted of two counts of
conspiracy and one count of trafficking in cocaine. Id. at 527, 375 S.E.2d at 305–06.
The defendant appealed, arguing that there was evidence of only one conspiracy. Id.
at 532, 375 S.E.2d at 308.
On appeal, the Fink panel held that the two charged conspiracies “were so
overlapped as to comprise one continuing conspiracy.” Id. at 533, 375 S.E.2d at 309.
Applying the Rozier factors, the panel first determined that the two conspiracies
occurred within hours of each other. Id. Second, the participants (i.e., the defendant
and his brothers) were the same, with the exception of a middle man for the drug buy
on 19 February 1987. Id. Third, the common objective was to traffic in cocaine,
notwithstanding the varying amounts of cocaine for each conspiracy. Id. Finally,
despite no evidence of meetings, the State argued at trial that this was a “continuing
conspiracy.” Id. The panel vacated one of the conspiracy convictions and remanded
for resentencing on the remaining conspiracy conviction. Id. at 534, 375 S.E.2d at
310.
IV. Analysis
I agree with defendant that the four Rozier cases are similar to the present
case. Each relevant factor is addressed in turn.
A. Application of Rozier Factors
i. Time Intervals
8
STATE V. STIMPSON
Elmore, J., dissenting.
The first Rozier factor is the time interval between each crime. It is implied
that time is a crucial factor because a short time interval between crimes signifies a
low possibility that an agreement can be made between each crime.
The panel in each of the four Rozier cases found the respective time intervals
to be short. Griffin, 112 N.C. App. at 841, 437 S.E.2d at 392 (one month); Wilson, 106
N.C. App. at 346, 416 S.E.2d at 605 (two weeks); Fink, 92 N.C. App. at 533, 375 S.E.2d
at 309 (less than 24 hours); Medlin, 86 N.C. App. at 122, 357 S.E.2d at 179 (four
months). Although the defendants in the Rozier cases had plenty of time to meet or
make an agreement in between the crimes, the State did not present evidence of
meetings or agreements that occurred in between the crimes in those cases.
Moreover, the panels in those cases did not infer the presence of meetings or
agreements based on the time intervals.
Here, the time interval in which the five robberies occurred is two to three
hours — much shorter than in any of the four Rozier cases. Notably, the longest time
interval cited by any of the Rozier cases is four months, yet the Medlin panel still held
that application of the Rozier factors resulted in a single conspiracy. Nevertheless,
the majority fails to credit the time interval of two to three hours in this case.
ii. Participants
The second Rozier factor is the specific participants involved in each crime.
This factor is significant because when the participants to each crime are completely
different, the State must prove separate conspiracies for each crime. However, when
9
STATE V. STIMPSON
Elmore, J., dissenting.
the participants are the same, there could potentially be one conspiracy to commit
several crimes.
In Medlin and Wilson, the same two individuals participated in each crime, but
a third individual participated in some but not all of the crimes. In Fink, the
defendant and his brother participated in each alleged crime, despite the SBI’s use of
a middle man to make the drug purchase. Regardless, the Wilson panel determined
that the addition or absence of one participant was “inconsequential.”
That scenario is not present in this case. Here, as in Griffin, the participants
are the exact same in each of the five robberies.
iii. Objectives
The third Rozier factor is the objective of each alleged conspiracy. 69 N.C. App.
at 52, 316 S.E.2d at 902. When the objective of each alleged conspiracy is different,
this leans toward separate conspiracies. But when the objective of each alleged
conspiracy is same, this leans toward a single conspiracy.
Each panel in the Rozier cases determined that the objective of each alleged
conspiracy was the same. The Medlin panel determined that the conspirators had
the common goal to “break or enter as many times as [they] could get away with.”
The Wilson panel concluded there was a common objective to acquire cash during the
several robberies, which was determined based on the nature of the robberies and the
testimony of a participant.
10
STATE V. STIMPSON
Elmore, J., dissenting.
Defendant’s case is most similar to Medlin. Here, the participants committed
a string of robberies early one morning over the course of a few hours before they
were caught by the police. Unlike Wilson, there was no testimony from a participant
about the objective, but the objective here can be determined based on the nature and
similarity of the crimes. Thus, the objective of each alleged conspiracy is to commit
an armed robbery, which leans toward a single conspiracy.
iv. Meetings
The final Rozier factor is the number of meetings among the participants. This
factor is crucial to determining the number of conspiracies because it tends to reflect
the number of agreements among the participants. To prove a single conspiracy, the
State must show an express or implied understanding of an agreement. Morgan, 329
N.C. at 658, 406 S.E.2d at 835. To prove two or more conspiracies, the State must
prove two or more separate agreements. Griffin, 112 N.C. App. at 840, 437 S.E.2d at
392. When the State proves multiple separate meetings among the participants, a
jury could infer multiple implied understandings, and thus multiple conspiracies.
See State v. Choppy, 141 N.C. App. 32, 40–41, 539 S.E.2d 44, 50 (2000), disc. rev.
denied, 353 N.C. 384, 547 S.E.2d 817 (2001).
In Griffin, Wilson, and Fink, the State presented no evidence of any meetings
among the conspirators before, during, or after the crimes that would allow the jury
to infer implied understandings of agreements. Although the Medlin panel
determined that the participants met between the robberies, the purpose of the
11
STATE V. STIMPSON
Elmore, J., dissenting.
meetings was to divide the spoils and plan the next robbery “in furtherance of the
original unlawful agreement.” One similarity in each Rozier case is that no panel
held that an implied understanding could be shown by the participants’ actions.
As the majority notes, the State “offered no testimony concerning any
discussions between the co-participants before, during, or after each robbery,” similar
to Griffin, Wilson, and Fink. However, there is evidence that defendant spent the
evening prior to the robberies with the other two perpetrators. Although this may be
enough for a jury to find an implied understanding of an agreement for a single
conspiracy, I respectfully disagree with the majority’s conclusion that there is no error
in defendant’s convictions.
The State failed to present substantial evidence of four meetings or agreements
among the participants. The State charged defendant with five conspiracies and,
under Griffin, was required to prove five separate meetings or agreements between
the participants. Defendant established an implied understanding for one agreement
when he testified that he and his fellow perpetrators met the night before the robbery.
This single meeting is only enough for the jury to infer a single conspiracy, and the
burden was on the State to present evidence of four other separate meetings or
agreements. However, the State impliedly admits that it failed to do this by arguing
on appeal that “[i]ndeed, there is no evidence present that any meetings ever took
place between the defendant and any of his fellow perpetrators.” (Emphasis added.)
Because the State did not present any evidence substantial or not of the
12
STATE V. STIMPSON
Elmore, J., dissenting.
agreement element for four of the five conspiracies, the trial court should have
granted defendant’s motion to dismiss. The State argues there was an implied
understanding to commit each robbery based on the action of committing each
robbery. However, the panels in the Rozier cases did not find an implied
understanding based on the participants’ actions, and I believe it would be unwise to
depart from that precedent now.
B. “Continuing Conspiracy”
The Fink panel, like Wilson and Griffin, determined there was no evidence of
any meetings between any co-conspirator prior to or during the crimes. It held,
however, that there was a “continuing conspiracy” to commit a crime. Here, the
majority does not believe this is a continuing conspiracy because each crime was
“committed and completed before [d]efendant and his co-conspirators moved on and
happened upon and mutually agreed to rob and commit other crimes on their next
targets . . .” (Emphasis added.) I respectfully disagree. The five robberies at issue
here were completed in an exceedingly short time interval, the same participants
were involved in each robbery, there was a common objective to commit each crime,
and the State did not present evidence of five separate agreements between the co-
conspirators. Furthermore, the majority concludes that the participants mutually
agreed to commit these crimes without evidence of five separate agreements.
C. Multiple Conspiracy Cases
13
STATE V. STIMPSON
Elmore, J., dissenting.
The majority cites to two cases from this Court to support its conclusion that
there were multiple conspiracies here. Both, however, are distinguishable from the
instant case.
i. State v. Roberts
In State v. Roberts, the State’s evidence showed the defendant engaged in two
robberies on consecutive nights in December 2002. 176 N.C. App. 159, 160–61, 625
S.E.2d 846, 848 (2006). Both robberies involved three masked perpetrators, and each
night, one perpetrator brandished a shotgun while another forced their victim to
perform fellatio on him. Id. at 161, 625 S.E.2d at 848. The State’s evidence also
revealed that, on the night of the first robbery, the defendant met with the other two
individuals from that robbery. Id. at 167, 625 S.E.2d at 852. It is unclear if those
two individuals were the same or different participants in the second robbery. The
defendant was convicted of, inter alia, four counts of conspiracy to commit the offenses
of first degree burglary and robbery with a dangerous weapon. Id. at 161–62, 625
S.E.2d at 848–49. The defendant appealed, arguing the State only proved a single
conspiracy. Id. at 166, 625 S.E.2d at 851.
On appeal, the Roberts panel mentioned the Rozier factors but did not apply
them. Id. at 167, 625 S.E.2d at 852. Instead, the panel determined there was no
evidence that the agreement made among the defendant and his co-perpetrators was
meant to extend beyond the first robbery. Id. The panel stated that “[t]he mere fact
that the defendant was involved in a similar crime the next night does not indicate
14
STATE V. STIMPSON
Elmore, J., dissenting.
the two crimes were committed as part of the agreement made on” the night of the
first robbery. Id. The Roberts panel ultimately overruled the defendant’s assignment
of error on the conspiracy convictions. Id.
The majority cites to Roberts to show that our Court has upheld multiple
conspiracy convictions, but fails to see that Roberts indicates that defendant here
should have been charged with one conspiracy. In Roberts, the defendant was
charged with two counts of two different conspiracies, which required the State to
prove separate elements for each different conspiracy. It is not clear whether the
defendant in Roberts participated in each robbery with the same two perpetrators.
Assuming arguendo that the defendant was the only common perpetrator in each
robbery, then the defendant would have had to make two separate agreements.
Here, the perpetrators in the five robberies were all the same, and defendant
was charged with five counts of conspiracy to commit robbery with a firearm. This
means the State had to prove each element of this conspiracy five separate times, but
the evidence only established the “agreement” element once. Thus, Roberts is
distinguishable from the case at bar, and I would not apply it.
ii. State v. Glisson
In State v. Glisson, the defendant sold oxycodone to an undercover officer on
three separate occasions. ___ N.C. App. at ___, 796 S.E.2d at 126. The first drug buy
in August 2012 was initiated by an informant with an undercover officer present,
while the second and third drug buys in September and December 2012 were initiated
15
STATE V. STIMPSON
Elmore, J., dissenting.
by the undercover officer. Id. The defendant also brought the same third party to
each drug buy. Id. The trial court convicted the defendant of conspiracy to sell opium,
conspiracy to deliver opium, and conspiracy to possess with the intent to sell or
deliver opium. The defendant appealed, arguing that she engaged in one continuing
conspiracy. Id. at ___, 796 S.E.2d at 12728.
On appeal, the Glisson panel applied the Rozier factors and found multiple
conspiracies. Id. at ___, 796 S.E.2d at 12829. First, the panel found that one month
passed between the first and second drug buys and two months passed between the
second and third. Id. at ___, 796 S.E.2d at 129. Second, even though the informant
was only present for the first drug buy, the participants were the same: the defendant,
her third party, and the undercover officer. Id. Third, even though the objectives
may have been similar, the amount of drugs varied. Id. Finally, and most
significantly, there was no meeting among the participants to engage in each drug
buy, and the defendant did not plan the next drug buy since each was initiated by
either the informant or the undercover officer. Id. This shows the defendant could
not have anticipated future drug buys and therefore had to separately agree to each
transaction. Id. Thus, the Glisson panel concluded there were multiple conspiracies.
Id.
Again, the majority cites to Glisson to support its contention that our Court
has previously found multiple conspiracies, but it fails to acknowledge the factual
differences between the two cases. First, as in Roberts, the defendant in Glisson was
16
STATE V. STIMPSON
Elmore, J., dissenting.
charged with three conspiracies related to three different incident offenses, which
required the State to prove separate elements for each conspiracy. Here, defendant
was charged with five counts of conspiracy for the same incident offense. Second,
even though the Glisson panel applied the Rozier factors, the “meeting” factor is
significantly different. In Glisson, it was determined there were no meetings between
the participants, except for the drug buys themselves, because the defendant did not
initiate the transactions and thus could not have anticipated the future drug buys.
Here, defendant spent the night prior to the robberies with his fellow perpetrators,
and a jury could infer that the purpose of this meeting was to plan and agree to
commit as many robberies as possible. Additionally, the State presented no evidence
of any other meetings prior to or during the robberies. Coupled with the other Rozier
factors, this indicates a single conspiracy. This case is therefore distinguishable from
Glisson.
V. Conclusion
The majority declines to apply Rozier and its progeny to this case,
effectively overlooking years of precedent from this Court. I, however, would apply
the Rozier factors to defendant’s case. First, the time interval was a few hours – much
shorter than in Medlin, Wilson, Griffin, or Fink. Second, the participants in the five
robberies appear to be the same: defendant and the two men he met earlier that night.
Third, the objective of each crime is the same: to commit robbery with a dangerous
weapon. Finally, the State presented no evidence of any meetings between defendant
17
STATE V. STIMPSON
Elmore, J., dissenting.
and the co-conspirators prior to or during the robberies. Although the jury could find
an implied understanding to commit a robbery based on defendant’s testimony that
he spent the evening prior to the robberies with the other two perpetrators, this only
supports one conspiracy conviction; the State failed to present evidence of four other
separate meetings or agreements. Similar to Medlin, the facts here show one
agreement to commit as many robberies as possible.
Applying Rozier, I believe defendant committed only one conspiracy. I would
therefore hold that the trial court erred by failing to dismiss the four other counts of
conspiracy to commit robbery with a firearm, and I would vacate four of defendant’s
five conspiracy convictions and remand for resentencing on the remaining one. See,
e.g., Rozier, 69 N.C. App. at 54, 316 S.E.2d at 903 (holding that the earliest conspiracy
conviction should stand when more than one conspiracy is charged but only one is
proven). I respectfully dissent from the majority’s decision to uphold four of
defendant’s conspiracy convictions.
18