State v. Thomas ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA 13-1298
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
Wake County
v. Nos. 11 CRS 221410;
12 CRS 8966, 11048
TYRECE ANTONIO THOMAS
Appeal by defendant from judgments entered 17 May 2013 by
Judge Paul C. Ridgeway in Wake County Superior Court. Heard in
the Court of Appeals 23 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Stuart M. Saunders, for the State.
Mergerian & Wells, by Franklin E. Wells, Jr., for Defendant.
ERVIN, Judge.
Defendant Tyrece Antonio Thomas appeals from judgments
entered based upon his convictions for one count of robbery with a
dangerous weapon, two counts of attempted robbery with a dangerous
weapon, and two counts of conspiracy to commit robbery with a
dangerous weapon. On appeal, Defendant contends that the trial
court erred by admitting testimony concerning an unrelated alleged
robbery; and by denying his motion to dismiss the second
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conspiracy to commit robbery with a dangerous weapon charge for
insufficiency of the evidence. After careful consideration of
Defendant’s challenges to the trial court’s judgments in light of
the record and the applicable law, we conclude that the trial
court’s judgment stemming from Defendant’s second conspiracy to
commit robbery with a dangerous weapon conviction should be
vacated; that judgment should be arrested in one of Defendant’s
two convictions for conspiracy to commit robbery with a dangerous
weapon; that the case in which the trial court sentenced Defendant
based upon his convictions for two counts of conspiracy to commit
robbery with a dangerous weapon should be remanded to the Wake
County Superior Court for resentencing; and that the trial court’s
other judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 2:00 a.m. on 11 September 2011, John
Limbouris, Michael Yahyapour, and Blake Johnson all returned to
Mr. Limbouris’ apartment after spending several hours at the Five
Points Bar and Grill in Raleigh. As part of that process, Mr.
Yahyapour rode with Mr. Limbouris back to his apartment, while Mr.
Johnson took a cab. Once he had parked his car and exited the
vehicle, Mr. Limbouris saw Mr. Johnson, who had arrived a few
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minutes before Mr. Limbouris and Mr. Yahyapour, standing near his
apartment.
After telling Mr. Yahyapour to hurry up and get out of his
car, Mr. Limbouris turned around, looked up, and saw two men
running towards him. Although Mr. Limbouris yelled at the two men
as they approached, the two men continued to charge towards him
while brandishing firearms.
Mr. Limbouris and Mr. Yahyapour described one of the two men,
later identified as Antonio Freeman, as a “taller, lankier, sinewy
looking fellow” who was approximately six feet, two inches tall1
and described the other man, later identified as Defendant, as
weighing about 200 pounds and being about five feet, seven inches,
or five feet, eight inches tall.2 According to both Mr. Limbouris
and Mr. Yahyapour, the taller man was carrying a gun with a longer
barrel, while Mr. Limbouris indicated that the shorter man was
carrying a smaller handgun. Both men wore dark clothes and had
1
Mr. Freeman, who testified for the State, pled guilty to one
count of robbery with a dangerous weapon, one count of conspiracy
to commit robbery with a dangerous weapon, and two counts of
attempted robbery with a dangerous weapon pursuant to a negotiated
plea under which all of his convictions were to be consolidated
for judgment. Mr. Freeman had not been sentenced as of the date
of Defendant’s trial.
2
The identifications described in the text were made by Mr.
Freeman. The victims never identified Defendant as one of the
perpetrators of the robbery.
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covered half of their faces with bandannas, and the taller man
also wore a black toboggan.
As the two men neared Mr. Limbouris, Mr. Yahyapour, and Mr.
Johnson, the taller man approached Mr. Yahyapour while the shorter
man approached Mr. Limbouris. At that point, Mr. Johnson was
farther from the two armed men at a point near the apartment
building and facing away from Mr. Limbouris and Mr. Yahyapour.
Upon reaching Mr. Limbouris, Mr. Yahyapour, and Mr. Johnson, the
two armed men told them to take their wallets and all of the other
items in their possession out of their pockets.
As the robbery occurred, Mr. Johnson phoned 911. Before the
police could arrive, however, Mr. Yahyapour removed his Zelli
brand wallet, which contained debit, credit, and identification
cards, and threw it in the direction of the armed men. On the
other hand, Mr. Limbouris refused to surrender his wallet. After
the taller man retrieved Mr. Yahyapour’s wallet, the two armed men
ran back down the street toward Fred Fletcher Park.
Mr. Limbouris pursued the robbers at a safe distance. As he
did so, Mr. Limbouris saw a black Dodge Nitro driving around a
nearby parking lot. As a result, Mr. Limbouris stopped following
the robbers at a point about 50 yards from Fred Fletcher Park and
focused his attention on the Nitro.
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A few minutes after the robbery, Sergeant Tracy Turner and
Officer Julie Pearson of the Raleigh Police Department arrived at
the scene. As she took a statement from Mr. Limbouris, Officer
Pearson saw a Dodge Nitro. Although Officer Pearson remained at
the scene of the robbery to finish taking statements from Mr.
Limbouris, Mr. Yahyapour, and Mr. Johnson, Sergeant Turner pursued
the Dodge Nitro and stopped it on a bridge about a half a mile
from Mr. Limbouris’ apartment. At the time that Sergeant Turner
stopped the Dodge Nitro, Korey Ford was operating the vehicle and
Javonte Goode was sitting in the passenger seat.3
After taking statements from Mr. Limbouris, Mr. Yahyapour,
and Mr. Johnson, Officer Pearson drove the three victims past the
Dodge Nitro in an attempt to ascertain if any of them could
identify the occupants of the vehicle. As Officer Pearson’s
patrol vehicle drove past the Dodge Nitro, the occupants saw a
tall man with dreadlocks and a shorter man. Although neither Mr.
Limbouris, Mr. Yahyapour, nor Mr. Johnson identified the taller
man as one of the perpetrators of the robbery, the shorter man fit
the description of the short man from the robbery incident.
According to Mr. Ford and Mr. Goode, Mr. Freeman and Defendant,
3
Both Mr. Ford, who had been acquitted of involvement in the
robbery, and Mr. Goode, who had been promised that he would not be
prosecuted in the event that he provided truthful testimony,
testified for the State.
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who had been in Mr. Ford’s car earlier in the night, had gotten
out shortly before the robbery without telling either Mr. Ford or
Mr. Goode that they had any intention of engaging in criminal
activity.4
After leaving the scene of the robbery and being unable to
reunite with Mr. Ford, Defendant and Mr. Freeman ran toward and
eventually hid in Fred Fletcher Park. From that location, they
could see that the police had stopped the Dodge Nitro. As a
result, they left their guns, which were concealed in items of
clothing, in a flower bed in the park. On 11 September 2011,
Kathryn Bauman-Hill found two firearms in Fred Fletcher Park while
attending a picnic and reported her discovery to investigating
officers. Upon responding to Ms. Bauman-Hill’s call,
investigating officers discovered a loaded Ruger .22 caliber
pistol and a loaded Phoenix .25 caliber pistol. Although Mr.
Freeman’s DNA was found on certain of the items recovered from
Fred Fletcher Park, none of Defendant’s fingerprints or DNA was
found on any of those items.
B. Procedural History
On 11 September 2011, a warrant for arrest charging Defendant
with robbery with a dangerous weapon and conspiracy to commit
robbery with a dangerous weapon was issued. On 24 October 2011,
4
Mr. Ford, Mr. Freeman, Mr. Goode, and Defendant had all
attended Saint Augustine’s College together.
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the Wake County grand jury returned a bill of indictment charging
Defendant with robbery with a dangerous weapon and conspiracy to
commit robbery with a dangerous weapon. On 26 November 2012, the
Wake County grand jury returned bills of indictment charging
Defendant with two counts of attempted robbery with a dangerous
weapon and two counts of conspiracy to commit robbery with a
dangerous weapon.
The charges against Defendant came on for trial before the
trial court and a jury at the 15 May 2013 criminal session of the
Wake County Superior Court. At the conclusion of all the
evidence, the State voluntarily dismissed one of the three
conspiracy to commit robbery with a dangerous weapon charges. On
17 May 2013, the jury returned verdicts finding Defendant guilty
of one count of robbery with a dangerous weapon, two counts of
attempted robbery with a dangerous weapon, and two counts of
conspiracy to commit robbery with a dangerous weapon. At the
conclusion of the ensuing sentencing hearing, the trial court
consolidated Defendant’s convictions for robbery with a dangerous
weapon and two counts of attempted robbery with a dangerous weapon
for judgment and sentenced Defendant to a term of 51 to 71 months
imprisonment based upon those convictions and consolidated
Defendant’s convictions for two counts of conspiracy to commit
robbery with a dangerous weapon for judgment and sentenced
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Defendant to a consecutive term of 24 to 38 months imprisonment
based upon those convictions. Defendant noted an appeal from the
trial court’s judgments.
II. Legal Analysis
A. Admission of Prior Bad Act Evidence
In his first challenge to the trial court’s judgment,
Defendant argues that the trial court erred by admitting testimony
concerning a robbery that took place on the night before the
incident at issue in this case. More specifically, Defendant
contends that evidence of the earlier robbery was irrelevant, did
not involve an incident that was sufficiently similar to the
incident at issue in this case, and had an unfairly prejudicial
effect that outweighed any probative value that the evidence in
question might possess. We do not find Defendant’s arguments
persuasive.
1. Relevant Facts
At trial, the State elicited evidence from Mr. Freeman and
Claudio Castro concerning an incident that occurred on 10
September 2011. According to Mr. Freeman, he and Defendant were
in a difficult financial situation on 10 September 2011. As a
result, the two men decided to rob people who were coming home
after a weekend night out. As a result of their belief that
Defendant’s vehicle was too conspicuous and the fact that Mr.
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Freeman did not own a car, Defendant and Mr. Freeman rode in Mr.
Ford’s Dodge Nitro on this occasion.
As Mr. Castro and two friends returned to his apartment
complex on the early morning of 10 September 2011 after spending
several hours at a friend’s birthday party, two men, whom Mr.
Freeman identified as Defendant and himself, approached the group,
which included Mr. Castro, armed with guns and wearing dark
clothes, beanies, bandannas, and gloves; pointed their guns at Mr.
Castro and his two friends; and demanded that they hand over their
wallets and cell phones. Although Mr. Castro initially refused to
give up his cell phone until one of the robbers threatened to
shoot him, Mr. Castro and his friends eventually relinquished
their wallets and phones. The armed men grabbed the wallets and
phones that had been surrendered by Mr. Castro and his friends and
ran to Mr. Ford’s Dodge Nitro, which drove away.5 Mr. Freeman,
Mr. Ford, and Defendant split the money that they found in the
wallets taken from Mr. Castro and his friends.
After allowing the admission of evidence concerning the 10
September 2011 robbery, the trial court instructed the jury that:
Evidence has been received which you, the
jury, may find tends to show that on September
10, 2011, the Defendant and an alleged
coconspirator robbed other victims. This
evidence was received solely for the purpose
5
According to Mr. Freeman, Mr. Goode was not present during
the 10 September 2011 incident.
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of showing that the Defendant had a motive for
the commission of the crime charged in this
case, and that there existed in the mind of
the Defendant a plan, scheme, system, or
design involving the crime charged in this
case. If you believe the evidence -- if you
believe this evidence, you may consider it,
but only for the limited purpose for which it
was received. You must not consider it for
any other purpose.
According to Defendant, the trial court erred by allowing the
admission of this evidence.
2. Standard of Review
[W]hen analyzing rulings applying [N.C. Gen.
Stat. § 8C-1,] Rules 404(b) and 403, we
conduct distinct inquiries with different
standards of review. When the trial court has
made findings of fact and conclusions of law
to support its [N.C. Gen. Stat. § 8C-1, Rule]
404(b) ruling . . .[,] we look to whether the
evidence supports the findings and whether the
findings support the conclusions. We review
de novo the legal conclusion that the evidence
is, or is not, within the coverage of [N.C.
Gen. Stat. § 8C-1,] Rule 404(b). We then
review the trial court’s [N.C. Gen. Stat. §
8C-1,] Rule 403 determination for abuse of
discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012). “Under a de novo review, the court considers the matter
anew and freely substitutes its own judgment for that of the lower
tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d
290, 294 (2008) (quotation omitted). An “[a]buse of discretion
[occurs] where the court’s ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result
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of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988); see also White v. White, 312 N.C. 770,
777, 324 S.E.2d, 829, 833 (1985).
3. Admissibility of Testimony Concerning Other Robbery
According to N.C. Gen. Stat. § 8C-1, Rule 404(b), “[e]vidence
of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith,” but may “be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident.” As the Supreme Court has noted, N.C. Gen. Stat. § 8C-
1, Rule 404(b) is a
general rule of inclusion of relevant evidence
of other crimes, wrongs, or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged.
State v. Coffey, 326 N.C. 268, 278-279, 389 S.E.2d 48, 54 (1990).
As a result, any evidence properly admitted pursuant to N.C. Gen.
Stat. § 8C-1, Rule 404(b), “‘must be offered for a proper purpose,
must be relevant, [and] must have probative value that is not
substantially outweighed by the danger of unfair prejudice to the
defendant[.]’” State v. Mohamed, 205 N.C. App. 470, 486-87, 696
S.E.2d 724, 736 (2010) (quoting State v. Haskins, 104 N.C. App.
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675, 679, 411 S.E.2d 376, 380 (1991), disc. review denied, 331
N.C. 287, 417 S.E.2d 256 (1992)).
The admissibility of evidence proffered pursuant to N.C. Gen.
Stat. § 8C-1, Rule 404(b), “is constrained by the requirements of
similarity and temporal proximity.” State v. Carpenter, 361 N.C.
382, 388, 646 S.E.2d 105, 110 (2007). In light of that fact,
“‘[t]he ultimate test for determining whether such evidence is
admissible is whether the incidents are sufficiently similar and
not so remote in time as to be more probative than prejudicial
under the balancing test of [N.C. Gen. Stat.] § 8C-1, Rule 403.’”
State v. Davis, 340 N.C. 1, 14, 455 S.E.2d 627, 634 (quoting State
v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)), cert.
denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83 (1995).
“Prior crimes or acts by the defendant are deemed similar when
there are ‘some unusual facts present in both crimes or
particularly similar acts which would indicate that the same
person committed both[.]’” State v. Brockett, 185 N.C. App. 18,
22, 647 S.E.2d 628, 632 (quoting State v. Moore, 309 N.C. 102,
106, 305 S.E.2d 542, 545 (1983)), disc. review denied, 361 N.C.
697, 654 S.E.2d 483 (2007). The similarities between the crime
charged and admissible “other bad act” evidence need not, however,
“rise to the level of the unique or bizarre.” State v. Green, 321
N.C. 594, 604, 365 S.E.2d 587, 593, cert. denied, 488 U.S. 900,
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109 S. Ct. 247, 102 L. Ed. 2d 235 (1988). As a result, the
ultimate issue raised by Defendant’s challenge to the admission of
evidence concerning the 10 September 2011 incident hinges upon the
extent, if any, to which the 10 September and 11 September 2011
incidents were similar in nature and proximate in time.
According to Defendant, the evidence provided by Mr. Castro
and Mr. Freeman concerning the 10 September 2011 robbery should
not have been admitted because the events that occurred at the
time of the 10 September and 11 September 2011 incidents were not
sufficiently similar. In support of this contention, Defendant
notes that the two incidents occurred on opposite sides of town
and involved different sets of participants. In concluding that
evidence of the 10 September 2011 incident was admissible for the
purpose of showing a common plan, intent, and motive, however, the
trial court found that only one day elapsed between the two
incidents, that the two incidents occurred at approximately the
same time of day, that the geographic location at which the two
incidents occurred was not significantly dissimilar, and that the
two incidents involved the use of a similar modus operandi, under
which the perpetrators, who were both armed, robbed college-aged
individuals late on a weekend night in or around the parking area
in an apartment complex while wearing dark clothing on their
bodies and bandannas on their faces and giving similar commands.
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As a result of the substantial similarities between the 10
September and 11 September 2011 incidents, we have no hesitation
in concluding that the trial court correctly determined that
evidence concerning the 10 September 2011 incident tended to show
the existence of a common scheme or plan involving Defendant and
Mr. Freeman and was, for that reason, relevant to an issue other
than Defendant’s propensity to engage in unlawful conduct.
In addition, Defendant contends that, even if testimony
concerning the 10 September 2011 incident was relevant for a
purpose other than showing Defendant’s propensity to engage in
unlawful conduct, the “probative value” of evidence concerning
that incident was “substantially outweighed by the danger of
unfair prejudice” and should have been excluded pursuant to N.C.
Gen. Stat. § 8C-1, Rule 403. A decision to admit or exclude
evidence pursuant to N.C. Gen. Stat. § 8C-1, Rule 403, is, as we
have already noted, committed to “the sound discretion of the
trial court, whose ruling will be reversed on appeal only when it
is shown that the ruling was so arbitrary that it could not have
resulted from a reasoned decision.” State v. Bidgood, 144 N.C.
App. 267, 272, 550 S.E.2d 198, 202, cert. denied, 354 N.C. 222,
554 S.E.2d 648 (2001). In the course of considering Defendant’s
objection to the admission of the challenged evidence, the trial
court engaged in the balancing inquiry required by N.C. Gen. Stat.
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§ 8C-1, Rule 403, and specifically determined that the probative
value of the challenged evidence outweighed any risk of unfair
prejudice that would result from its admission. In addition, as
this Court has clearly held, the delivery of a limiting
instruction like that quoted above mitigates the risk that the
jury will consider “other bad act evidence” for an impermissible
purpose during the course of its deliberations. State v.
Stevenson, 169 N.C. App. 797, 802, 611 S.E.2d 206, 210 (2005); see
also State v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74-75
(2002) (holding that the admission of “other bad act” evidence did
not unfairly prejudice the defendant for the purposes of N.C. Gen.
Stat. § 8C-1, Rule 403, given the delivery of an instruction
limiting the purposes for which the jury was entitled to consider
the evidence in question), cert. denied, 537 U.S. 1133, 123 S. Ct.
916, 154 L. Ed. 2d 823 (2003). In view of the significant
similarities between the two incidents and the limiting
instruction delivered by the trial court, we see no basis for
concluding that the trial court abused its discretion by failing
to exclude the testimony of Mr. Castro and Mr. Freeman concerning
the 10 September 2011 robbery pursuant to N.C. Gen. Stat. § 8C-1,
Rule 403. As a result, the trial court did not err by allowing
the admission of evidence concerning the 10 September 2011
incident.
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B. Sufficiency of the Evidence to Support
Multiple Conspiracy Charges
Secondly, Defendant contends that the trial court erred by
denying his motion to dismiss one of the two conspiracy to commit
robbery with a dangerous weapon charges that had been lodged
against him based upon insufficiency of the evidence. In support
of this contention, Defendant argues that the State’s evidence
failed to show the existence of two distinct agreements to commit
robbery with a dangerous weapon and, instead, simply established
the existence of a single conspiracy. As the State candidly
concedes, Defendant’s contention has merit.
According to well-established North Carolina law, a
defendant’s motion to dismiss is properly denied if “‘there is
substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of
defendant’s being the perpetrator of such offense.’” State v.
Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting
State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). In
conducting the required analysis, the “trial court must consider
the evidence in the light most favorable to the State, drawing all
reasonable inferences in the State’s favor.” State v. Miller, 363
N.C. 96, 98, 678 S.E.2d 592, 594 (2009). We review the trial
court’s denial of a motion to dismiss for insufficiency of the
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evidence using a de novo standard of review. State v. Smith, 186
N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
“A criminal conspiracy is an agreement between two or more
persons to do an unlawful act or to do a lawful act in an unlawful
way or by unlawful means.” State v. Bindyke, 288 N.C. 608, 615,
220 S.E.2d 521, 526 (1975). When the evidence shows a series of
agreements or acts constituting a single conspiracy, the
constitutional prohibition against double jeopardy bars the State
from prosecuting a defendant on multiple conspiracy indictments.
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)). As a result, “when 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.”
State v. Griffin, 112 N.C. App. 838, 840, 437 S.E.2d 390, 392
(1993) (citing State v. Rozier, 69 N.C. App. 38, 53, 316 S.E.2d
893, 902, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984)).
Although there is no simple test for use in determining whether a
particular case involves a single conspiracy or multiple
conspiracies, “factors such as time intervals, participants,
objectives, and number of meetings all must be considered.”
Rozier, 69 N.C. App at 52, 316 S.E.2d at 902.6
6
In addition to Rozier, Defendant cited State v. Dalton, 122
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A careful review of the record evidence provides no basis for
a determination that Defendant and Mr. Freeman were involved in
multiple conspiracies at the time that they robbed Mr. Limbouris,
Mr. Yahyapour, and Mr. Johnson. Instead, the record indicates
that, given their financial difficulties, Defendant and Mr.
Freeman decided to rob individuals returning home late on a
weekend night. As a result, they approached the victims as they
returned to Mr. Limbouris’ apartment, robbed or attempted to rob
the three men at the same time, and escaped together. In light of
this evidence, we believe that, even when taken in the light most
favorable to the State, the record did not suffice to establish
the existence of more than one conspiracy. As a result, as the
State concedes, the trial court erred by denying Defendant’s
motion to dismiss one of the two conspiracy to commit robbery with
a dangerous weapon charges of which he was convicted, requiring us
to vacate the trial court’s judgment in the case in which
Defendant was sentenced for two counts of conspiracy to commit
robbery with a dangerous weapon, arrest judgment with respect to
N.C. App 666, 672-73, 471 S.E.2d 657, 662 (1996); State v. Medlin,
86 N.C. App. 114, 121-23, 357 S.E.2d 174, 178-79 (1987); and State
v. Tabron, 147 N.C. App. 303, 306-08, 556 S.E.2d 584, 586-87
(2001), disc. review improvidently granted, 356 N.C. 122, 564
S.E.2d 881 (2002), all of which held that the State’s evidence
only established the existence of a single conspiracy, in support
of his challenge to the denial of his dismissal motion concerning
the sufficiency of the evidence to support one of his two
conspiracy convictions.
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one of those convictions, and resentence Defendant based upon a
single conviction for conspiracy to commit robbery with a
dangerous weapon.7
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Defendant’s challenge to the trial court’s judgment in the case in
which Defendant was convicted of robbery with a dangerous weapon
and two counts of attempted robbery with a dangerous weapon and
his challenge to his convictions for two counts of conspiracy to
commit robbery with a dangerous weapon lack merit and that the
trial court erred by failing to grant Defendant’s motion to
dismiss one of the two counts of conspiracy to commit robbery with
a dangerous weapon for insufficiency of the evidence. As a
result, the trial court’s judgment based upon Defendant’s
convictions for robbery with a dangerous weapon and two counts of
attempted robbery with a dangerous weapon should, and hereby does,
remain undisturbed and the trial court’s judgment based upon
Defendant’s conviction for two counts of conspiracy to commit
robbery with a dangerous weapon should be, and hereby is vacated;
judgment should be, and hereby is, arrested in one of the two
7
As a result of the fact that the State voluntarily dismissed
the conspiracy to commit robbery with a dangerous weapon charge
set forth in the indictment returned in File No. 11 CrS 221410,
judgment should be arrested in connection with the conspiracy to
commit robbery with a dangerous weapon charge set forth in the
second count of the indictment returned in File No. 12 CrS 11048.
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cases in which Defendant was convicted of conspiracy to commit
robbery with a dangerous weapon; and this case should be, and
hereby is, remanded to the Wake County Superior Court for
resentencing based upon a single conviction, rather than multiple
convictions, for conspiracy to commit robbery with a dangerous
weapon.
NO ERROR IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING IN PART.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).