State v. Carter

629 S.E.2d 332, 177 N.C. App. 539, 2006 N.C. App. LEXIS 1078
CourtCourt of Appeals of North Carolina
DecidedMay 16, 2006
DocketCOA05-1214
StatusPublished
Cited by3 cases

This text of 629 S.E.2d 332 (State v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carter, 629 S.E.2d 332, 177 N.C. App. 539, 2006 N.C. App. LEXIS 1078 (N.C. Ct. App. 2006).

Opinions

JACKSON, Judge.

On the morning of 8 September 2003, LeAnn Oakley (“Oakley”) approached Montrez Carter (“defendant”), Willie Collins (“Collins”), and another man on the comer of Club Boulevard in Durham, North Carolina. Oakley attempted to purchase drugs from the men, but was refused based on the fact that she owed defendant money for drugs he previously had sold to her. Oakley testified that defendant and Collins suggested that Oakley have sex with the men in exchange for the drugs, and that when she refused, the men suggested she commit á robbery. Oakley agreed to commit the robbery, and the men got into her car where they drove to the R&W convenience store. On defendant’s instructions, Oakley went into the store to see who was working and how many people were inside. -When she returned to the car, defendant instructed her to move her car to a spot in the parking lot where it would not be visible from inside the store. Oakley did as instructed, and was then handed a gun by one of the men and told to rob the store. Oakley entered the convenience store, pointed the gun at the store owner, and demanded money which she received.

Oakley, who was arrested shortly thereafter, was identified by the store owner as being the woman who robbed her at gunpoint. Oakley confessed to Detective Brian Kilgore that she approached defendant and two other men in hopes of purchasing drugs. The men suggested that she rob a convenience store in exchange for the drags, which she agreed to do. The men then gave her a gun, which she used during the robbery.

On 15 December 2003, defendant was indicted for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Following a jury trial, on 25 August 2004 defendant' was found guilty of conspiracy to commit robbery with a dangerous weapon, and not guilty of both robbery with a dangerous weapon and common law robbery. Defendant was sentenced to a term of imprisonment of twenty-three to thirty-seven months. His sentence was suspended and he was placed on thirty-six months of supervised probation. Defendant now appeals his conviction.

[541]*541Defendant first contends the trial court erred in denying his motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon based on insufficiency of the evidence to support the charge.

In order to survive a motion to dismiss, the State must offer “substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “Substantial evidence” is that which “a reasonable mind might accept as adequate to support a conclusion.” Id. The trial court does not weigh the evidence before it; instéad it is to consider the sufficiency of the evidence to support the offenses charged, and leave the determination of a witness’ credibility to the jury to decide. Id. All contradictions and discrepancies in the evidence should be resolved in favor of the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Id. at 73, 472 S.E.2d at 926. When the trial court has found substantial evidence “ ‘to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.’ ” State v. Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229 (2000) (quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).

Defendant was charged with conspiracy to commit robbery with a dangerous weapon. Our Supreme Court has held that

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. To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object: A mutual, implied understanding is sufficient, so far as thé combination or conspiracy is concerned, to constitute the offense.

State v. Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975) (internal quotations and citations omitted). Thus, it was not necessary for all of the parties to the conspiracy to agree expressly to the use of a dangerous weapon prior to the robbery in order for a charge of conspiracy to commit robbery with a dangerous weapon to be submitted to the jury. State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d 176, 185, appeal dismissed and disc, review denied, 359 N.C. 194, 607 S.E.2d 658 (2004); see also State v. Goldberg, 261 N.C. 181, 202, 134 S.E.2d 334, 348 (1964) (“It is not essential that each conspirator [542]*542have knowledge of the details of the conspiracy or of the exact part to be performed by the other conspirators in execution thereof; nor is it necessary that the details be completely worked out in advance to bring a given act within the scope of the general plan.”), overruled on other grounds by News and Observer v. State ex rel. Starling, 312 N.C. 276, 283, 322 S.E.2d 133, 138 (1984). Rather, there need only be evidence that defendant and the other parties “had a mutual, implied understanding to commit robbery with a dangerous weapon.” Johnson, 164 N.C. App. at 17, 595 S.E.2d at 186.

When conflicting evidence and an uncertainty exist as to whether the weapon used during a robbery was in fact a real or functional gun, the nature of the weapon is an issue that should be left for the jury to determine. State v. Allen, 317 N.C. 119, 125-26, 343 S.E.2d 893, 897 (1986); see also State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979); State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913 (2002). Our courts have held that when the evidence tends to suggest that a weapon used during a robbery was inoperable or fake, the jury must be given an instruction on common law robbery, in addition to the instruction on robbery with a dangerous weapon. See State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985); Frazier, 150 N.C. App. 416, 562 S.E.2d 910; State v. Fleming, 148 N.C. App. 16, 557 S.E.2d 560 (2001).

In the instant case, the State presented evidence that defendant entered into an agreement with Collins, Oakley, and another individual, pursuant to which Oakley would use a gun provided to her by the three men to rob a convenience store.

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Related

State v. Lipford
Court of Appeals of North Carolina, 2014
State v. Clark
689 S.E.2d 553 (Court of Appeals of North Carolina, 2009)
State v. Carter
629 S.E.2d 332 (Court of Appeals of North Carolina, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
629 S.E.2d 332, 177 N.C. App. 539, 2006 N.C. App. LEXIS 1078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carter-ncctapp-2006.