State v. Almond

Judge GREENE

concurring in part and dissenting in part.

I agree with the majority, for the reasons given, that there was no error in defendant Michael A. Almond’s trial. I believe, however, defendant Timothy Almond is entitled to a new trial *150because of plain error committed in presenting only one conspiracy charge to the jury, but allowing the jury to convict on either of two conspiracy charges.

The defendant was indicted, in two separate indictments, on two counts of conspiracy. The first indictment, 90-CrS-6598, alleged that the defendant engaged in a conspiracy from November 1982 through November 1988, with “John Minton, Jerry Minton, doing business as Minton Electric, Michael A. Almond and others” to obtain money by false pretenses from Carolina Mirror Corporation and Carolina Mirror Company by invoicing Carolina Mirror inflated prices for goods sold to them by Minton Electric, the inflated profits then being split between the defendant and others. The second indictment, 90-CrS-6608, alleged that the defendant conspired with “Jerry Minton, doing business as Carolina Glue Chip, and Michael A. Almond and others” between October 1985 and April 1986 to obtain money by false pretenses from Carolina Mirror Corporation by inflating invoices for glass from Carolina Glue Chip by $.10 per square foot to create money to kickback to the defendant and others.

The indictments allege two separate conspiracies, involving different time frames, different actors, different victims, and different methods of committing the crime. During the trial, the jury heard evidence concerning both conspiracies. The verdict form given to the jury read as follows:

We, the jury, unanimously find the defendant, Timothy Michael Almond,
_ Guilty of Conspiracy to Obtain Property by False Pretenses or;
_ Not Guilty

In its instructions to the jury, the trial court instructed on the general elements of conspiracy charging that the defendant should be found guilty if those elements were established by the evidence. This general instruction and the verdict form impermissibly permitted “consideration in one issue of two possible crimes for which defendant could be separately convicted and punished”: (1) the conspiracy charged in the first indictment, and (2) the conspiracy charged in the second indictment. See State v. Lyons, 330 N.C. 298, 306-07, 412 S.E.2d 308, 314 (1991). Accordingly “the jury could have returned a verdict of guilty without all twelve jurors agreeing” on *151which conspiracy the defendant was guilty. Id. Therefore the verdict is defective in that it violates defendant’s constitutional right to be convicted by a unanimous jury. N.C. Const, art. I, § 24.

Contrary to the majority, I do not believe this case is controlled by State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). Hartness was a case “in which a single wrong [was] established by a finding of various alternative elements.” Id. at 566, 391 S.E.2d at 180. Hartness therefore is not applicable to the present case because this defendant was charged with engaging in two separate conspiracies. See State v. Diaz, 317 N.C. 545, 554, 346 S.E.2d 488, 494 (1986) (in trial for transporting marijuana, jury charge which allowed jury to convict defendant if it found defendant knowingly possessed or knowingly transported marijuana held error because possession and transportation are separate crimes with separate punishments).