State v. Beck, ___ N.C. App. ___, 2021-NCCOA-305 (Jul. 6, 2021)

The defendant was convicted of armed robbery, conspiracy to commit armed robbery, felony breaking or entering, and conspiracy to commit breaking or entering in Watauga County. The offenses related to the attempted robbery of a drug dealer in an apartment in Boone. The jury convicted on all counts, and each conspiracy count was consolidated with the related substantive count for judgment.

(1) The defendant argued that the trial court erred in failing to dismiss one of the conspiracy counts. The Court of Appeals agreed. To convict on separate conspiracies, the State has the burden to show separate agreements. A single agreement to commit multiple offenses constitutes only one conspiracy. Factors relevant in determining the existence of multiple conspiracies include “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 . . .” Beck Slip op. at 11 (citation omitted). Here, the evidence showed only one agreement to rob drug dealers and thus only supported one conspiracy.

Where multiple conspiracy convictions are vacated, the court must identify the first substantive crime in determining which conviction to vacate. Here, the felony breaking or entering was the first substantive offense committed by the conspirators. The conviction for conspiracy to commit armed robbery was therefore vacated. According to the court:

As the felony breaking and entering was the first substantive crime committed by defendant (i.e., the ‘operative’ crime), because the conspiracy to commit felony breaking and entering was the ‘earlier of the conspiracy convictions’ insofar as defendant is concerned, and because the State failed to prove that defendant conspired with [the co-conspirators] in the weeks leading up to the crimes, we vacate defendant’s conviction for conspiracy to commit armed robbery . . . Id. at 14.

No resentencing was required, however, since the conspiracy to commit armed robbery was consolidated with the substantive robbery offense and the defendant was sentenced within the presumptive range for that crime. 

(2) The trial court did not abuse its discretion in failing to provide the jury with a transcript of a witness’s testimony. No party objected to the trial court’s refusal in response to the jury’s request. Under G.S. 15A-1233(a), it is within the trial court’s discretion to allow reexamination of the evidence. Prejudice from the denial of a jury request to reexamine evidence will only be considered where the trial court fails to acknowledge its discretion in responding to the request. The trial court here recognized the matter as within its discretion. Consequently, the denial of the request for a transcript was neither an abuse of discretion nor prejudicial error.

Judge Inman concurred without separate opinion. Judge Tyson concurred in part and dissented in part. He would have found no error with the conviction for conspiracy to commit armed robbery.