Opinion
No. COA10-531
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 13 January 2010 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 20 December 2010.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Thomas R. Miller, for the State. Winifred H. Dillon, for defendant-appellant.
Guilford County Nos. 08 CRS 102732, 08 CRS 102734, 08 CRS 24938.
Robert Francis Watlington ("defendant") appeals his 13 January 2010 convictions for breaking or entering, felony larceny, and conspiracy to commit breaking or entering. For the reasons stated herein, we hold no error.
On 25 September 2008, Jack Williams ("Williams"), an automotive technician, was working late at The Garage, an automotive business ("The Garage"). Williams completed work on a friend's automobile at approximately 10:30 p.m. When he was finished, he locked up the business and left to deliver the vehicle to his friend. His friend had agreed to drop him back at The Garage following a late dinner.
When they returned to The Garage shortly after midnight, Williams observed several items that had been inside the shop sitting on a concrete pad outside the business. Among those items were "a small quantity of tools," a space heater, and a subwoofer cabinet. Williams next observed a door open approximately two feet and "slam[] back shut." Williams continued to watch the door, which had a gap at the bottom, and saw "somebody's feet standing there" behind the door. Then, Williams watched as a red Toyota Celica ("the Celica") with its headlights off came around the corner towards the shop. According to Williams, he "thought this was an odd situation" because "first of all, somebody, obviously, was inside the shop, and then [he saw] this car coming around the corner with no headlights on." Williams told his friend to turn their car's lights on, after which the Celica pulled over "at an odd angle," and the driver got out of the car. Williams later identified the driver of the Celica as defendant.
Williams testified that defendant "meandered around the car" and then walked away. At some point while Williams and his friend watched the scene, Williams had called 911. When police officers arrived, Williams announced their arrival loudly, and the feet that he had seen behind the door disappeared.
Officer John Ludemann ("Officer Ludemann") of the Greensboro Police Department responded to Williams's 911 call. He obtained a description of defendant and the direction in which he had fled. Officer Ludemann drove in the same direction, and a short time later, he observed and then stopped defendant. Defendant told Officer Ludemann that he had been in the Celica and gave the officer the keys to the vehicle. Officer Ludemann detained defendant. When asked whether anyone else had been with him, defendant replied that he had been in the Celica with a white male whose name he did not know; he thought that the person had left his identification in the vehicle.
Upon searching the Celica, Officer Ludemann discovered a wallet with a North Carolina identification card and Social Security card belonging to Joseph Ruggerio.
Officer T.D. Dell ("Officer Dell") of the Greensboro Police Department helped to "clear" The Garage. While clearing the building, Officer Dell noticed an area of the shop that was covered in grease. Officer Dell testified that there were footprints in the grease "that would not be typical of boots or shoes that would be worn inside a garage. The pattern was also not one that an officer would be wearing." Officer Dell began canvassing the area, looking for a white male in dark clothing. A short time later, Officer Dell observed a man, who fit the description of the other suspect and was acting nervous.
Officer Dell approached the man and asked for identification. The man did not have any identification but told the officer that his name was Joseph Ruggerio ("Ruggerio"). Officer Dell frisked Ruggerio and found a screwdriver in his pants leg. Officer Dell testified that, after detaining Ruggerio, he examined his shoes and determined that the tread matched the footprint found in the grease in The Garage.
Officer Sadie McDonald ("Officer McDonald") of the Greensboro Police Department interviewed defendant after he was taken into custody. Officer McDonald testified that defendant told her: (1) that he had met with Ruggerio, and they had decided to pick up cigarettes at the Great Stops; (2) after leaving the Great Stops, Ruggerio told defendant that he had errands to run; (3) that defendant had fallen asleep in the Celica and remembered waking up near The Garage; and (4) that he never went into the business and never touched anything. Ruggerio exercised his right not to talk with the police.
On 17 November 2008, defendant was indicted on charges of felonious breaking and entering, felonious larceny, conspiracy to commit breaking and entering, and being an habitual felon. A mistrial was declared on 5 February 2009. Pursuant to the same indictments, the case was tried again on 4 January 2010. On 6 January 2010, defendant was convicted of felonious breaking and entering, felonious larceny, and conspiracy to commit breaking and entering. Defendant also pled guilty to being an habitual felon. The trial court consolidated the offenses for judgment and sentenced defendant to a single term of eighty-four to 110 months imprisonment. Defendant appeals.
Defendant first argues that the trial court erred by denying his motion to dismiss based upon insufficiency of the evidence, because the State failed to present any evidence that he acted in concert with Ruggerio to commit the offenses. We disagree.
To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997), writ of mandamus denied, ___ N.C. ___, 675 S.E.2d 662 (2009). "`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)). "The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness'[s] credibility." State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (citation omitted), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002).
Our Supreme Court has held that
[i]f two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (quoting State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)) (internal quotation marks omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
Here, the evidence tended to show that defendant operated the Celica in a suspicious manner at the same time that Ruggerio was inside The Garage. Specifically, defendant drove the Celica with its headlights off at approximately 12:30 a.m. When defendant became aware of others in the area, he immediately parked the Celica "at an odd angle" and left the scene. Furthermore, a reasonable juror could conclude that the items that had been moved out of The Garage and placed on a concrete pad were too large to be carried away by hand and, therefore, were awaiting pick-up by automobile. In addition, Ruggerio had left his identification in the Celica with defendant, and defendant admitted to having been with Ruggerio earlier in the evening. When viewed in the light most favorable to the State, we hold that a reasonable jury could conclude that defendant was not merely present at the scene of the crime but was acting in concert with Ruggerio to commit the offenses.
Defendant's second argument is that the State failed to present sufficient evidence that defendant conspired with Ruggerio to commit the charged offenses. Again, we disagree.
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 the 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 citations and quotation marks omitted). Furthermore, "`[d]irect proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence.'" State v. Clark, 137 N.C. App. 90, 95, 527 S.E.2d 319, 322 (2000) (quoting State v. Aleem, 49 N.C. App. 359, 363, 271 S.E.2d 575, 578 (1980)). "A conspiracy `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.'" Id. (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
In the case sub judice, much of the same evidence that supported the theory that defendant acted in concert with Ruggerio supports the conclusion that defendant conspired with Ruggerio. The evidence tends to show that defendant and Ruggerio were riding together in the Celica before Ruggerio broke into The Garage. Ruggerio then left the Celica, along with his wallet and identification, with defendant. While Ruggerio was inside The Garage, defendant drove the Celica to The Garage with its headlights turned off. Various items had been removed from The Garage and placed outside on a concrete pad as if waiting to be picked up. When defendant was spotted, he fled. From this evidence a reasonable juror could infer that defendant was aware that Ruggerio was in The Garage and that he, too, was involved in the criminal enterprise. Accordingly, viewed in the light most favorable to the State, we hold that a jury reasonably could conclude that defendant and Ruggerio had an agreement to commit a breaking or entering of The Garage.
No error.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
Judge JACKSON concurred prior to December 31, 2010.