State v. Jacobs

EAGLES, Judge.

On appeal defendant contends that (1) both of defendant’s conspiracy convictions must be vacated because there was insufficient evidence that he entered into agreements to do the unlawful acts; (2) one of defendant’s conspiracy convictions must be vacated because there was insufficient evidence of two separate agreements; (3) defendant is entitled to a new trial in the larceny case because the trial court refused to submit the verdict of misdemeanor larceny to the jury; and (4) defendant is entitled to a new trial because the trial court erroneously allowed the prosecutor to impeach him with questions and evidence about his possession of marijuana. We agree in part and vacate defendant’s conspiracy conviction in 89 CRS 3069. We find no error in the remainder of the trial court’s judgment.

Concerning his two convictions for conspiracy, defendant contends first, that both convictions must be vacated because there was insufficient evidence that he entered into any agreement to do the unlawful acts and second, that one conviction must be vacated because there was insufficient evidence that there were two separate agreements. Here, the State presented sufficient evidence that defendant entered into an agreement to do an unlawful act but insufficient evidence to establish two separate agreements. This Court has said:

It is well established that the gist of the crime of conspiracy is the agreement itself, not the commission of the substantive crime. It is also clear that where a series of agreements or acts constitutes a single conspiracy, a defendant cannot' be subjected to multiple indictments consistently with the constitutional guarantee against double jeopardy. Defining the scope of a conspiracy or conspiracies remains a thorny problem for the courts.... However, under North Carolina law multiple overt acts arising from a single agreement do not permit prosecutions for multiple conspiracies. There is no simple test for determining whether single or multiple conspiracies are involved: the essential question is the nature of the agreement or agreements, but factors such as time intervals, participants, objectives, and number of meetings all must be considered.

It is only proper that the State, having elected to charge separate conspiracies, must prove not only the existence of at least two agreements, but also that they were separate.

State v. Rozier, 69 N.C. App. 38, 52, 316 S.E.2d 893, 902 (citations omitted) (emphasis in original), cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984).

Here, Neecie Locklear testified that defendant drove up in a car with Woods and Moore and asked if Locklear would be a lookout while he (defendant) went and got the policeman’s car. The men left and returned approximately 30 minutes later with Humphrey’s car. The group drove around and the participants met several times to decide where to burn the automobile. Applying the factors set out in Rozier, the evidence shows that the conspiracy lasted for a few hours at most. Defendant, Moore and Woods were the only participants. The objective was to get revenge against Humphrey by stealing and burning his car. Finally, all of the roadside meetings concerned where to burn the car. After careful consideration of the record, we hold that the evidence establishes the existence of only one agreement and only one conspiracy.

We find defendant’s remaining arguments without merit. Defendant contends that the trial court erred by failing to submit the verdict of misdemeanor larceny to the jury. Defendant contends that here there was evidence tending to show the value of the car was $400 or less. We disagree.

It is unquestioned that the trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense. However, when all the evidence tends to show that the accused committed the crime with which he is charged and there is no evidence of guilt of a lesser-included offense, the court correctly refuses to charge on the unsupported lesser offense. “The presence of such evidence is the determinative factor.”

State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976) (citations omitted) (emphasis in original).

Here, the only evidence of the value of the car at the time it was stolen was $3500. Humphrey testified that he purchased the car in early 1988 and that “it was in need of some restoration to make it driveable.” He said that he worked on the car for several months and that in his opinion the fair market value of the car was $3500. Defendant’s arguments all relate to the value of the car before the owner restored it and made it driveable. Accordingly, this assignment of error is overruled.

Finally, defendant contends that the trial court erred by allowing the prosecutor to impeach him with questions and evidence about defendant’s earlier possession of marijuana. The prosecutor asked defendant whether Lieutenant Humphrey had previously found marijuana in defendant’s pants pocket and whether defendant was angry because on that earlier occasion Humphrey had arrested him for possession of marijuana. This evidence was admissible under G.S. 8C-1, Rule 404(b) to show defendant’s motive to steal and burn the vehicle. Accordingly, we overrule this assignment of error.

Vacated as to 89-CRS-3069.

No error as to 89-CRS-3070 and 89-CRS-3071.

Chief Judge HEDRICK and Judge GREENE concur.