Opinion
No. COA14–996.
02-03-2015
STATE of North Carolina v. Elisha Jason KING.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant.
INMAN, Judge.
Elisha Jason King (“defendant”) appeals from judgments entered after a jury found him guilty of three counts of breaking and entering, two counts of conspiracy to commit breaking and entering, two counts of injury to real property, and one count each of felony larceny, possession of stolen goods, and possession of burglary tools; defendant also attained habitual felon status. Defendant's sole argument on appeal is that where the indictment conjunctively alleged that he conspired to commit some of the underlying crimes with Quinyana Marshall (“Marshall”) and Recardo Shepard (“Shepard”), the trial court reversibly erred by disjunctively instructing the jury that it could convict defendant of conspiracy if it found that he agreed to commit the crimes with either Marshall or Shepard.
After careful review, we find no error.
Background
The facts of this case are largely undisputed. At around 10:00 p .m. on the night of 30 January 2013, Officer Shannon Albright (“Officer Albright”) of the North Topsail Beach Police Department executed a traffic stop of a vehicle containing defendant, Marshall, and Shepard. Before executing the stop, Officer Albright noticed what appeared to be a flat screen television protruding from the open trunk of the car. She then saw the vehicle pull into a nearby driveway, stop momentarily, back out, pull into another driveway, and turn off its headlights. When the vehicle drove away, Officer Albright noticed that the television was no longer protruding from the trunk, so she executed an investigative stop. Pursuant to a consent search of the vehicle, officers found vinyl and cloth gloves, a crowbar, flashlights, screwdrivers, bolt cutters, three television remote controls, and spark plugs in the vehicle. An investigation of the nearby neighborhood revealed that the glass on the front doors of two townhomes had been shattered with spark plugs, a television appeared to be missing from one of the homes, and two flat screen televisions were recovered next to a house on the street where the vehicle had briefly stopped.
Defendant was indicted on numerous charges, including two counts of conspiracy. With regard to the conspiracy charges, the indictment specifically alleged that defendant “conspire[d] with [Shepard] and[Marshall]” to commit the underlying crimes of breaking and entering, larceny, and possession of stolen goods. At trial, Marshall testified for the State. She claimed that defendant and Shepard asked her to drive them to Shepard's mother's house, but did not reveal their plan to break into houses and steal televisions. She testified that she was unaware of defendant's and Shepard's plot to commit the crimes until immediately before the vehicle was stopped by Officer Albright, at which time defendant and Shepard told her that they would tell the officer she had nothing to do with their scheme.
The trial court initially instructed the jury that it could convict defendant of the conspiracy charges if the State proved beyond a reasonable doubt that “defendant and [Shepard] and [Marshall] entered into an agreement.” After deliberation, the jury asked the trial judge whether the State needed to prove that defendant entered into an agreement with both Shepard and Marshall or just one of the two. The State argued that the trial court should instruct the jury in the disjunctive, but defendant's trial counsel objected. Defense counsel requested that the trial court repeat its initial instruction, arguing that defendant was only on notice that the State sought to seek convictions for conspiracy based on alleged agreements between defendant and both Shepard and Marshall, not one or the other. Over defendant's objection, the trial court instructed the jurors that they could convict defendant of the conspiracy charges if they found unanimously that defendant had an agreement with either Shepard or Marshall. The trial court also instructed the jurors to indicate on two special verdict sheets which individual(s), if any, they unanimously found to have conspired with defendant. The jury convicted defendant of both counts of conspiracy, noting on each of the special verdict sheets that he conspired with Shepard, and not with Marshall. Defendant filed timely notice of appeal.
Discussion
Defendant's sole argument on appeal is that the trial court erred by instructing the jury in the disjunctive where the indictment alleged that defendant conspired with both Marshall and Shepard. We disagree.
Because defendant preserved his challenge to the trial court's instruction, this Court reviews the alleged error de novo. See, e.g., State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “ ‘Under a de novoreview, 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) (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) ).
The State argues that we should review this issue under the abuse of discretion standard. Citing State v. Prevette, 317 N.C. 148, 163–64, 345 S.E.2d 159, 169 (1986), the State contends that because the trial court gave additional instructions pursuant to N.C. Gen.Stat. § 15A–1234(a) (2013), the trial judge was in the best position to determine whether further instruction would aid the jury in its deliberations. However, defendant does not challenge whether any additional instructions were helpful to the jury. Instead, he challenges the legality of the trial court's altering its initial instruction from conjunctive to disjunctive. Because this is a question of law that defendant preserved at trial, we conduct a de novo review.
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“The purpose of an indictment is to give a defendant notice of the crime for which he is being charged[.]” State v. Bowen, 139 N.C.App. 18, 24, 533 S.E.2d 248, 252 (2000). “An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.” State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984).
[I]t is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.
State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).
Defendant argues that because the indictment alleged that he conspired with both Marshall and Shepard, but the trial court's instruction allowed the jury to convict him for conspiring with Marshall or Shepard, defendant's right to due process was violated because the State was permitted to secure a conviction on a theory it did not initially allege. We find this argument unpersuasive.
“The essence of the crime of conspiracy is the agreement to commit a substantive crime.”State v. Griffin, 112 N.C.App. 838, 840, 437 S.E.2d 390, 392 (1993). This agreement need only arise between the defendant and at least one other individual. See State v. Merrill, 138 N.C.App. 215, 218, 530 S.E.2d 608, 611 (2000). This Court has repeatedly endorsed the use of conjunctive language in an indictment where criminal liability may be established by alternative theories of conduct.
Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively. The indictment should not charge a party disjunctively or alternatively, in such a manner as to leave it uncertain what is relied on as the accusation against him. The proper way is to connect the various allegations in the indictment with the conjunctive term “and,” and not with the word “or.”
State v. Armstead, 149 N.C.App. 652, 654–55, 562 S.E.2d 450, 452 (2002) (quoting State v. Swaney, 277 N.C. 602, 611–12, 178 S .E.2d 399, 405 (1970), overruled on other grounds by State v. Hurst, 320 N.C. 589, 594, 359 S.E.2d 776, 779 (1987) ); see also State v. Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992) (“The use of a conjunctive in the indictment does not require the State to prove various alternative matters alleged.”).
Based on these principles, we conclude that the trial court did not err by instructing the jury that it could convict defendant of conspiracy if it found an agreement with either Marshall or Shepard, despite the fact that the indictment alleged a conspiracy with both individuals. As defendant concedes, the crime of conspiracy does not require three coconspirators; it merely requires an agreement between the defendant and at least one other person. See Merrill, 138 N.C.App. at 218, 530 S.E.2d at 611. Thus, alternative theories of criminal liability existed as to the conspiracy charges in this case. Defendant would have been properly found guilty if the jury believed an agreement to commit the underlying felonies existed between defendant and Marshall, Shepard, or both. As this Court has repeatedly noted, the “proper” way to connect various theories of criminal liability in an indictment is with the conjunctive word “and,” not with the disjunctive word “or.” See Armstead, 149 N.C.App. at 654–55, 562 S.E.2d at 452. By alleging in the indictment that defendant conspired with Marshall and Shepard, the State merely followed the best practice expounded by this Court in Armsteadand other cases.
Nevertheless, defendant relies on State v. Mickey, 207 N.C. 608, 610–11, 178 S.E. 220, 221–22 (1935), and State v. Minter, 111 N.C.App. 40, 42–43, 432 S.E.2d 146, 148 (1993), for the proposition that the State was bound to the factual allegation in the indictment that defendant conspired with both Shepard and Marshall. These cases hold that where an indictment alleging conspiracy specifically names a co-conspirator, it is erroneous to instruct the jury that it may find the defendant guilty of conspiracy based on an agreement with an individual not mentioned in the indictment. See Mickey,207 N.C. at 610–11, 178 S.E.2d at 221–22; Minter, 111 N.C.App. at 42–43, 432 S.E.2d at 148. Here, by instructing the jury that it could convict defendant of conspiracy if it found an agreement between defendant and either Marshall or Shepard, the trial court stayed within the bounds of the two specific individuals named in the indictment, and therefore did not run afoul of Mickeyor Minter.
Defendant ultimately argues that the trial court permitted the jury to “convict upon some abstract theory not supported by the bill of indictment,” State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980), and deprived him of “a fair and reasonable opportunity to prepare his defense,” State v. Stills, 310 N.C. 410, 416, 312 S.E.2d 443, 448 (1984) (quotation marks omitted). However, defendant was on notice that the State intended to pursue convictions for two counts of conspiracy based on an allegation that defendant conspired with some combination of Shepard and Marshall. As this Court has noted, conjunctive language in an indictment is better suited to defense preparation because disjunctive language produces more uncertainty as to the State's accusation. See Armstead, 149 N.C.App. at 654–55, 562 S.E.2d at 452. Therefore, we conclude that the indictment's conjunctive allegation coupled with the trial court's disjunctive instruction complied with the applicable legal standards and did not violate defendant's due process rights.
Conclusion
For the foregoing reasons, we conclude that the trial court committed no error by instructing the jury that it could convict defendant of conspiracy if it found that an agreement to commit the underlying felonies existed between defendant and either Marshall or Shepard, despite the fact that the indictment conjunctively alleged that defendant conspired with Marshall and Shepard.
NO ERROR.
Judges STEELMAN and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered 7 April 2014 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 7 January 2015.