State v. Beck

• Court: Court of Appeals of North Carolina
• Decided: July 6, 2021
• Docket: 20-499
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-305

No. COA20-499

Filed 6 July 2021

Watauga County, Nos. 17 CRS 50616-17

STATE OF NORTH CAROLINA

v.

ISAIAH SCOTT BECK

Appeal by defendant from judgments entered 31 October 2019 by Judge Susan

E. Bray in Watauga County Superior Court. Heard in the Court of Appeals

9 June 2021.

Joshua H. Stein, Attorney General, by Assistant Attorney General Wes Saunders, for the State.

Dylan J.C. Buffum Attorney at Law, PLLC, by Dylan J.C. Buffum, for defendant.

ARROWOOD, Judge.

¶1 Isaiah Scott Beck (“defendant”) appeals from judgments entered

31 October 2019 for convictions of robbery with a dangerous weapon, conspiracy to

commit robbery with a dangerous weapon, felonious breaking and entering, and

conspiracy to commit felonious breaking and entering. For the following reasons, we

-1- STATE V. BECK

Opinion of the Court

vacate the conspiracy conviction in Case No. 17 CRS 50616. Apart from this

disposition, we conclude that defendant received a fair trial free of prejudicial error.

I. Background

¶2 At all relative times, Mackenzie Beshears (“Beshears”) lived with her

boyfriend, Devon Trivette (“Trivette”), and a roommate Daniel Blackburn

(“Blackburn”) in Boone, North Carolina. Beshears, who at the time was a student at

Appalachian State University, sold narcotics on the side, particularly Xanax and

marijuana.

¶3 On 27 April 2017, Beshears was contacted by a former high school associate

Cameron Baker (“Baker”) who inquired whether Beshears had any drugs for sale.

Given their prior affiliation, Beshears agreed to the sale and arranged to consummate

the transaction at Beshears’ apartment.

¶4 After working out logistics, Baker advised Beshears that his friend Danny

Silva (“Silva”) would arrive by himself and complete the purchase. Silva pulled into

the subject apartment complex but was spooked after noticing that Beshears and

Trivette were watching him from an apartment window. Beshears then called Baker

who told her that Silva was returning to the apartment complex. Silva arrived at

Beshears’ apartment and was greeted and admitted by Beshears and Trivette.

Beshears noticed that Silva was “really sweaty and acting bizarre.” STATE V. BECK

¶5 Trivette then left the room to take a shower while Silva and Beshears finalized

the transaction. At this moment, two men suddenly burst into the apartment wearing

all black and bandannas covering the lower portions of their faces. Notwithstanding

their disguises, Beshears immediately recognized the two men as defendant and

Javier Holloway (“Holloway”). Beshears had previously met defendant and had

viewed photos of Holloway on Baker’s social-media platform.

¶6 Upon entry, defendant raised an AR-15 assault rifle to Beshears’ head and

instructed Holloway to grab everything he could. When Holloway attempted to steal

Beshears’ bookbag, Beshears began screaming for Trivette and a physical altercation

ensued. Trivette proceeded to physically engage defendant and pushed him toward

the door of the apartment. Holloway then charged at Trivette; at this point,

Blackburn emerged from his room and came to the aid of Beshears and Trivette. As

the three occupants attempted to force defendant and Holloway out of the apartment

door, defendant wedged the barrel of his gun between the door to prevent it from

closing. Ultimately, Blackburn, Trivette, and Beshears were able to oust defendant

and Holloway and latch the door. While outside, defendant began shouting and

threatened to shoot into the apartment. Silva was still inside the apartment,

standing alone in the corner. Silva denied any involvement in the robbery or knowing

the intruders, and claimed that he was there only to buy drugs. STATE V. BECK

¶7 Over Trivette’s objections, Blackburn called the police. As police sirens were

approaching, Trivette let Silva leave the apartment, though Silva was swiftly

apprehended as he fled the scene by Lieutenant Daniel Duckworth (“Lt. Duckworth”)

and Officer Kaleb Forrest (“Officer Forrest”). Detective Kat Eller (“Detective Eller”)

then arrived at the scene and interviewed Beshears, Trivette, and Blackburn. The

occupants identified defendant and Holloway as the assailants, prompting the Boone

Police Department to issue a “be on the lookout” alert to local enforcement agencies.

¶8 During Detective Eller’s initial interview with Beshears, Beshears falsely

claimed that she had arranged to purchase, not sell, controlled substances from Silva

and his associates. Shortly thereafter, Detective Eller was informed that Silva had

been apprehended and that text messages from his phone indicated that Beshears

was the seller, not the purchaser, of the drugs. In order to develop trust and ensure

that she had received accurate information, Detective Eller allowed Beshears to

destroy evidence of other narcotics in the apartment by flushing marijuana, pills, and

crushed Xanax down the toilet. Beshears then turned over her cellular phone to

Detective Eller and consented to the search of its contents. Detective Eller then spoke

to Trivette, who admitted that Beshears was selling drugs and that the buyers “were

coming here to get [drugs] and I guess it just went bad.” Neither Beshears nor

Trivette were charged in connection with respect to the incidents noted above. STATE V. BECK

¶9 After taking Silva into custody, Lt. Duckworth proceeded to the scene of the

crimes. Lt. Duckworth, in addition to his duties with the Boone Police Department,

had been previously assigned to a special task force through the Department of

Homeland Security focusing on drug smuggling. Two months earlier, Lt. Duckworth

received a tip from a confidential informant that a group of individuals from out of

town were planning to rob Boone-area drug dealers. Lt. Duckworth and Detective

James Lyall (“Detective Lyall”) set up surveillance around the area in which they

believed the conspirators were located. Detective Lyall had photographs of the

suspects from their respective Facebook accounts. After driving past the subject

location, Lt. Duckworth observed two suspects matching the photo descriptions. Lt.

Duckworth immediately set up a perimeter, per protocol, when an unidentified

person approached Lt. Duckworth’s vehicle and reported seeing two males run

through his yard in the direction of downtown Boone (both of whom matched the

descriptions of the suspects identified by Detective Lyall).

¶ 10 Around the same time, a student at Appalachian State University, Ashley

Hickman (“Hickman”), was riding a bus from campus when two men abruptly

boarded the bus at an intersection. She testified that the two men appeared sweaty,

unsettled, and agitated. While on the bus, Hickman received an alert on her cell

phone informing her of the criminal activity discussed above and describing the

suspects. Shortly after, the two suspects exited the bus and fled across Highway 105. STATE V. BECK

Hickman called the police and reported these events and exited the bus at the same

location as the suspects and proceeded to her apartment complex which was located

behind the “Water Wheel Café.”

¶ 11 Meanwhile, Baker was at his apartment, located just a few hundred yards from

the Water Wheel Café. He received a phone call from defendant advising him that

the drug deal had gone wrong and asking him for transportation. Later, defendant

and Holloway arrived at Baker’s apartment and obtained new clothing. Hickman,

shortly thereafter, walked outside of her apartment and observed the same two men

from the bus in her apartment complex parking lot, though they were wearing

different clothes. She watched the two men proceed to a structural water wheel in

front of the Water Wheel Café and hide from view. Hickman immediately contacted

law enforcement and updated them on the location of the two suspects.

¶ 12 Lt. Duckworth proceeded to the Water Wheel Café to set up surveillance. From

this vantage point, Lt. Duckworth observed defendant and Holloway near the Water

Wheel Café but noted that they had changed their clothing. After observing the

suspects for a few minutes, a marked police cruiser passed the location of the suspects

and they fled on foot into the woods, prompting other officers to respond. Detective

Lyall, who was then riding with another officer, pursued the suspects and

apprehended defendant after a short chase. Holloway was taken into custody shortly

thereafter by Lt. Duckworth. STATE V. BECK

¶ 13 Once in custody, a warrant was issued to search the contents of Silva’s seized

cell phone. Law enforcement extracted a series of text messages between Silva and

Holloway. These messages revealed that on 18 April 2017, Silva sent Holloway a text

asking for “a pic with [Silva] and the gun lol so I can show my amigo.” Holloway sent

a video file back to Silva with a picture of Silva and a gun. On the same day, Holloway

sent Silva another message stating, “[Hit me up] . . . asap got a lick.”1 Another

message dated 24 April 2017 revealed a text from Holloway to Silva stating, “Aye bro

I need that [rifle] asap.” Then, on the evening of 26 April 2017, Holloway again

messaged Silva and asked whether he was “try[ing] [to get in] on this lick in the am.”

Silva replied, “Where[?]” Holloway responded, “Boone, certified we gone [sic] come

up bro we just need a ride.” Silva then said, “Ight [sic] you me and [defendant]?”

Holloway confirmed by saying, “Yeah.” On 27 April 2017, defendant messaged Baker

asking if he knew “where he could buy some drugs and stuff, and [Baker] told him

[that he] knew someone that [he] could put [defendant] in contact with.” Baker was

then informed by defendant, Silva, and Holloway that they were currently driving to

Boone in Silva’s car. Baker reached out to Beshears to make the introduction and set

the trap for the robbery. Defendant sent another message to Baker while en route to

Boone stating that “Ima [sic] take all the money [Beshears] got too I might can have

1 Detective Jason Reid testified that, based on his training and experience, a “lick” refers to

a “robbery.” STATE V. BECK

her take me to [Trivette’s] money.” According to Baker, he interpreted this message

to mean that defendant intended to “take [Beshears’] belongings and try to get her to

take him to the stuff that [Trivette] had as well.” The messages exchanged above

clearly demonstrate that Silva, Holloway, and defendant intended to rob Beshears

and Trivette on 27 April 2017—though defendant was not included in the messages

between Silva and Holloway in the preceding days. As mentioned above, the criminal

plan was executed on 27 April 2017.

¶ 14 On 5 September 2017, defendant was indicted for robbery with a dangerous

weapon, conspiracy to commit robbery with a dangerous weapon, felonious breaking

and entering, and conspiracy to commit felonious breaking and entering. Following

a four-day trial, the jury returned verdicts finding defendant guilty of all charges.

The trial judge consolidated the robbery and conspiracy to commit robbery charges

into one judgment, and sentenced defendant to a minimum of 73 months’ and a

maximum of 100 months’ imprisonment (within the presumptive range for a prior

record level two offender). The trial court also consolidated the breaking and entering

and conspiracy to commit breaking and entering charges into one judgment, and

imposed an active sentence of 8 to 19 months’ incarceration to run consecutive to the

first sentence (within the presumptive range for a prior record level two offender).

Judgments were entered on 31 October 2019. STATE V. BECK

¶ 15 Defendant filed a timely notice of appeal on 1 November 2019. Defendant’s

appeal is properly before this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-

1444.

II. Discussion

¶ 16 Defendant argues that the trial court erred by denying his motion to dismiss

one of the two conspiracy charges and by entering two judgments for the same.

Defendant also claims that the trial court committed prejudicial error by failing to

provide the jury with a transcript of Blackburn’s trial testimony following the jury’s

request for this record. We address each issue in turn.

A. Conspiracy

¶ 17 Defendant argues that the trial court erred by denying his motion to dismiss

one of the two conspiracy charges and entering two separate judgments for the

convictions. We agree.

¶ 18 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v.

McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). In ruling on a motion to

dismiss, “the trial court need determine only whether there is substantial evidence of

each essential element of the crime and that the defendant is the perpetrator.” State

v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015) (internal quotation marks

and citations omitted). Substantial evidence has been defined by our North Carolina STATE V. BECK

Supreme Court as “evidence which a reasonable mind could accept as adequate to

support a conclusion.” State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998)

(citing State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995)). In reviewing

the trial court’s decision on appeal, the evidence must be viewed “in the light most

favorable to the State, giving the State the benefit of all reasonable inferences.” State

v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted).

¶ 19 In order to be submitted to the jury for determination of defendant’s guilt, the

evidence “need only give rise to a reasonable inference of guilt.” State v. Turnage,

362 N.C. 491, 494, 666 S.E.2d 753, 755 (2008) (citing State v. Stone, 323 N.C. 447,

452, 373 S.E.2d 430, 433 (1988)).

¶ 20 This is true regardless of whether the evidence is direct or circumstantial.

State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998). If the court decides that

a reasonable inference of the defendant’s guilt may be drawn from the circumstances,

then “it is for the jury to decide whether the facts, taken singly or in combination,

satisfy them beyond a reasonable doubt that the defendant is actually guilty.” State

v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (citation and emphasis

omitted). When ruling on a motion to dismiss, the only question for the trial court is

whether “the evidence is sufficient to get the case to the jury; it should not be

concerned with the weight of the evidence.” State v. Earnhardt, 307 N.C. 62, 67, 296 STATE V. BECK

S.E.2d 649, 652 (1982) (citing State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 157

(1971)).

¶ 21 “A criminal conspiracy is an agreement by two or more persons to perform an

unlawful act or to perform a lawful act in an unlawful manner.” State v. Rozier, 69

N.C. App. 38, 49, 316 S.E.2d 893, 900 (1984) (citation omitted). The crime of criminal

conspiracy is complete once an agreement is reached; the conspirators need not take

any overt act to establish criminal liability. Id. “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.” Id. at 52, 316 S.E.2d at 902 (emphasis in original) (citation omitted).

“[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.” State v.

Griffin, 112 N.C. App. 838, 840, 437 S.E.2d 390, 392 (1993) (citation omitted). Our

Supreme Court has enumerated a number of factors to consider in deciding whether

multiple agreements constitute a single conspiracy or multiple conspiracies, which

include, but are not limited to, 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.”

State v. Tirado, 358 N.C. 551, 577, 599 S.E.2d 515, 533 (2004) (citation omitted). STATE V. BECK

¶ 22 Here, we conclude that the trial court erred by denying defendant’s motion to

dismiss the charge of conspiracy to commit robbery with a dangerous weapon. The

State’s evidence established one single conspiracy that continued from on or around

18 April 2017 through the date of the breaking and entering and armed robbery on

27 April 2017. The decision to break and enter into Beshears’ apartment did not

convert the original conspiracy to rob a drug dealer in Boone into two separate

conspiracies. See Rozier, 69 N.C. App. at 52, 316 S.E.2d at 902 (citation omitted)

(“[U]nder North Carolina law[,] multiple overt acts arising from a single agreement

do not permit prosecutions for multiple conspiracies.”). The evidence at trial

established the existence of one agreement and only one conspiracy, insofar as

defendant is concerned: to break and enter into Beshears’ apartment and rob

Beshears and Trivette of their drugs, money, and other belongings. The agreement

between defendant, Silva, and Holloway was entered on or around 26-27 April 2017

with one objective in mind. Although the robbery conspiracy evolved into a breaking

and entering plot and the details regarding the target and location of the robbery

were not finalized until hours before the crime, the criminal purpose remained the

same. Since the State elected to charge defendant with separate conspiracies, it had

to “prove not only the existence of at least two agreements but also that they were

separate.” Id. at 53, 316 S.E.2d at 902 (citation omitted). The State failed to connect

defendant with Silva and Holloway’s initial text conversation regarding robbing a STATE V. BECK

drug dealer in Boone. Moreover, we disagree with the State’s contention that when

Silva declined Beshears’ offer to conduct a drug sale in the parking lot, defendant and

Silva hatched a new, separate agreement to break and enter into Beshears’

apartment. “A single conspiracy is not transformed into multiple conspiracies simply

because its members vary occasionally and the same acts in furtherance of it occur

over a period of time.” Griffin, 112 N.C. App. at 841, 437 S.E.2d at 392 (citation

omitted). In our view, the events in this case were so overlapped as to comprise one

continuing conspiracy.

¶ 23 We cannot allow two conspiracy convictions to stand when the State produced

evidence of only one agreement between defendant and his co-conspirators. See State

v. Hicks, 86 N.C. App. 36, 42, 356 S.E.2d 595, 598 (1987); see also State v. Fink, 92

N.C. App. 523, 533, 375 S.E.2d 303, 309 (1989).

¶ 24 When the Court vacates one of multiple conspiracy convictions, we must

identify the first substantive crime committed in determining which conspiracy

charge to vacate. See Fink, 92 N.C. App. at 533, 375 S.E.2d at 309 (citations omitted);

cf. State v. Tabron, 147 N.C. App. 303, 307-308, 556 S.E.2d 584, 587 (2001) (holding

that only the “earliest conspiracy conviction should stand.”). Here, the felony

breaking and entering was the first substantive crime as it occurred before (albeit

immediately before) the armed robbery. As the felony breaking and entering was the

first substantive crime committed by defendant (i.e., the “operative” crime), because STATE V. BECK

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 Holloway and Silva in the weeks leading

up to the crimes, we vacate defendant’s conviction for conspiracy to commit armed

robbery in Case No. 17 CRS 50616. See Hicks, 86 N.C. App. at 42, 356 S.E.2d at 598;

see also Fink, 92 N.C. App. at 533, 375 S.E.2d at 309.

¶ 25 Because the trial judge consolidated the conspiracy to commit armed robbery

conviction with the substantive robbery conviction and sentenced defendant within

the presumptive range for the latter offense, defendant has not shown a reasonable

probability that the trial court would have imposed a different and perhaps lesser

sentence for the substantive offense of robbery with a dangerous weapon had the

robbery conspiracy charge been dismissed. See Rozier, 69 N.C. App. at 54, 316 S.E.2d

at 903.

B. Trial Transcript

¶ 26 Defendant contends that the trial court abused its discretion by failing to

provide the jury with a copy of Blackburn’s trial testimony after the jury requested

this record from the court. We disagree.

¶ 27 During deliberations, the jury submitted a note to the trial judge asking

whether it could review a record or copy of Blackburn’s testimony. The trial judge,

outside the presence of the jury, stated to counsel the following: “I believe the answer STATE V. BECK

to that is no. We don’t operate in realtime. We do not have that available. I propose

telling them no, and reminding them it’s their duty to remember the evidence,

recalling and remembering the evidence.” Neither the State nor counsel for

defendant objected to the trial judge’s opinion on the matter. After bringing in the

jury, the trial judge answered the jury’s question this way: “The answer is no, we do

not operate in realtime and don’t have that available for you. It is your collective

duty to recall and remember the evidence.” Neither party objected to the aforesaid

statement to the jury.

¶ 28 “If the jury after retiring for deliberation requests a review of certain testimony

or other evidence, the jurors must be conducted to the courtroom. The judge in his

discretion, after notice to the prosecutor and defendant, may direct that requested

parts of the testimony be read to the jury and may permit the jury to reexamine in

open court the requested materials admitted into evidence.” N.C. Gen. Stat. § 15A-

1233(a) (2019). It is well settled that “where matters are left to the discretion of the

trial court, appellate review is limited to a determination of whether there was a clear

abuse of discretion.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)

(citations omitted); State v. Perez, 135 N.C. App. 543, 554, 522 S.E.2d 102, 110 (1999)

(citations omitted) (“A trial court’s ruling in response to a request by the jury to

review testimony or other evidence is a discretionary decision, ordinarily reviewable

only for an abuse thereof.”). STATE V. BECK

¶ 29 In the context of jury requests, the trial court errs when it refuses to exercise

its discretion in the erroneous belief that it has no discretion to grant the jurors’

request. See Perez, 135 N.C. App. at 554, 522 S.E.2d at 110; see also State v. Barrow,

350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999). “Thus, in summary, we must consider

if the trial court failed to exercise its discretion. If the trial court did indeed fail to

exercise its discretion, this would constitute error, and we must then consider

whether this error was prejudicial.” State v. Long, 196 N.C. App. 22, 28, 674 S.E.2d

696, 700 (2009) (citations omitted). Such error is only prejudicial if defendant can

show that (1) the requested testimony involved issues of some confusion and

contradiction, and (2) it is likely that a jury would want to review such testimony.

State v. Johnson, 164 N.C. App. 1, 20, 595 S.E.2d 176, 187 (2004) (citation and

quotation marks omitted).

¶ 30 Here, the trial judge did not impermissibly deny the jurors’ request based

solely on the unavailability of the transcript. The trial judge’s statement to the jury

reflects that the trial court considered, but in its discretion, denied the jury’s request

in compliance with N.C. Gen. Stat. § 15A-1233(a). See State v. Guevara, 349 N.C.

243, 253, 506 S.E.2d 711, 718 (1998) (holding that because the “trial court did not say

or indicate that it could not make the transcript or review of the testimony available

to the jury[,]” defendant failed to show that the trial court failed to exercise its

discretion). In short, the trial court exercised its discretion in denying the jury’s STATE V. BECK

request for a copy of Blackburn’s trial testimony. See State v. Lawrence, 352 N.C. 1,

28, 530 S.E.2d 807, 824 (2000). Defendant acquiesced to the court’s instruction and

cannot now complain that he was prejudiced by the trial judge’s decision on the

matter.

III. Conclusion

¶ 31 For the foregoing reasons, we vacate the conspiracy conviction in Case No.

17 CRS 50616. In addition, we hold that the trial court did not err, much less commit

prejudicial error, by denying the jury’s request to review a copy of Daniel Blackburn’s

trial testimony.

VACATED IN PART; NO ERROR IN PART.

Judge INMAN concurs.

Judge TYSON concurs in part and dissents in part by separate opinion. No. COA20-499– State v. Beck

TYSON, Judge, concurring in part, dissenting in part.

¶ 32 Defendant has failed to carry his burden on appeal to prove any error occurred

or, even if so, has failed to show he suffered any prejudice. I concur with the majority

opinion’s conclusion that no prejudicial or plain error occurred in defendant’s

convictions for robbery with a dangerous weapon, felonious breaking and entering,

and conspiracy to commit felonious breaking and entering, and defendant is not

entitled to a new sentencing hearing. I also concur with the majority’s opinion

concluding the trial court did not err by denying the jury’s request to review a

transcript copy of Daniel Blackburn’s trial testimony.

¶ 33 There is sufficient evidence to deny defendant’s motion to dismiss and to

submit the charge of conspiracy to commit robbery with a dangerous weapon to the

jury. There is no error or prejudice in defendant’s conviction for conspiracy to commit

robbery with a dangerous weapon. I concur in part and respectfully dissent in part.

I. Standard of Review

¶ 34 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “‘Upon [d]efendant’s

motion for dismissal, the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of [d]efendant’s being the perpetrator of such offense. If so,

- 18 - STATE V. BECK

TYSON, J., concurring in part, dissenting in part.

the motion is properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (2000). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-

79, 265 S.E.2d 164, 169 (1980). “[T]he evidence need only give rise to a reasonable

inference of guilt” to survive defendant’s motion to dismiss and for the charge to be

properly submitted to the jury for determination. State v. Turnage, 362 N.C. 491,

494, 666 S.E.2d 753, 755 (2008) (internal quotations omitted) (citing State v. Stone,

323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)).

II. Analysis

¶ 35 “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).

“A conspiracy may be shown by express agreement or an implied understanding.”

State v. Choppy, 141 N.C. App. 32, 39, 539 S.E.2d 44, 49 (2000).

¶ 36 Our Supreme Court stated nearly ninety years ago: “Direct proof of the charge

is not essential, for such is rarely obtainable. It may be, and generally is, established

by a number of indefinite acts, each of which, standing alone, might have little weight,

but, taken collectively, they point unerringly to the existence of a conspiracy.” State

v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).

¶ 37 Defendant argues the court should have instructed the jury on just one

conspiracy, robbery. Defendant argues, and the majority’s opinion erroneously STATE V. BECK

agrees, he and his co-conspirators only discussed the robbery, and the breaking and

entering was a consequence of the intended robbery. Defendant argues because the

conspiracy to break and enter was antecedent to the robbery, the conspiracy to break

and enter should be vacated, and the case should be remanded for re-sentencing.

¶ 38 The State argues sufficient evidence tends to show two separate conspiracies.

The agreement to break and enter was not part of defendant’s original plan and

agreement to commit robbery. Defendant had to change how, when, and where the

robbery would be committed once Beshears refused to meet Baker or Silva in the

parking lot. Defendant then conspired with Holloway to break and enter Beshears’

apartment. While enroute to Boone, defendant sent a text message to his co-

conspirator Baker, stating that “Ima [sic] take all the money [Beshears] got too I

might can have her take me to [Trivette’s] money.” Baker initially had set up the

drug transaction between Beshears and Silva to occur in the parking lot.

¶ 39 The separate conspiracy indictment and conviction is appropriate since it was

agreed to at a separate time and by separate co-conspirators. The State also argues

the conspiracy charge was consolidated into the underlying felony, and, if this Court

were to vacate the conspiracy charge, remanding for resentencing is unnecessary. We

all agree the sentence imposed upon remand would not change.

¶ 40 The State’s evidence tended to show, and the jury could reasonably conclude,

there was enough circumstantial evidence to show separate conspiracies to commit STATE V. BECK

armed robbery and to break and enter. After Silva went inside of Beshears’

apartment, it is logical defendant and Holloway reached an agreement to break into

the apartment to get the money and drugs. Based upon the evidence and the actions

of the parties, a separate conspiratorial agreement between defendant and Holloway

was reached in order to break and enter into the apartment.

¶ 41 The State’s evidence meets all of our Supreme Court’s enumerated factors to

consider in deciding whether multiple agreements constitute a single conspiracy or

multiple conspiracies. These factors include, “[t]he 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.” State v. Tirado, 358 N.C. 551, 577, 599 S.E.2d 515, 533 (2004) (citation

omitted). Defendant’s argument is without merit.

¶ 42 The State presented sufficient circumstantial evidence to allow the jury to

conclude there were two separate conspiracies to break and enter and to commit

armed robbery. Defendant and the other co-defendant, Holloway, did not initially

have to break and enter the apartment to rob Beshears or Trivette.

¶ 43 Viewed in the light most favorable to the State, the evidence and the actions of

the parties clearly show separate and distinct agreements at different times between

defendant, Baker, Silva, and Holloway to commit armed robbery. Also viewed in the STATE V. BECK

light most favorable to the State, defendant later agreed to a separate conspiracy with

Holloway to break and enter Beshears’ apartment.

¶ 44 There are no errors in any of defendant’s convictions, including his conspiracy

to commit armed robbery in Case No. 17 CRS 50616. I concur in part and respectfully

dissent in part.