Lead Opinion
*364Antonio Lamar Stimpson ("Defendant") appeals from judgments entered after a jury convicted him of discharging a firearm into an occupied property, discharging a firearm into an occupied vehicle, five counts of conspiracy to commit robbery with a firearm, six counts of robbery with a firearm, and two counts of attempted robbery with a firearm. Defendant has abandoned his appeal on all convictions and judgments, except for four of the five conspiracy convictions. We find no error in any of Defendant's convictions and judgments.
A. The Crimes
1. Smith
In the early morning hours of 22 March 2014, Debra Smith left a hair salon on Summit Avenue in Greensboro and entered her vehicle. A dark colored Jeep Cherokee vehicle swiftly pulled up and blocked her from leaving. Ms. Smith testified she saw two men exit the Jeep, with one man carrying a pump shotgun. The men wore masks and dark clothing. Ms. Smith was ordered to exit her vehicle and instructed to "give us your money."
Ms. Smith testified she was "scared for her life" when a gunshot was fired near her head. She fell onto the pavement as she exited from her vehicle. Ms. Smith told the men she did not have any money. One of the men with a shotgun began to taunt her. The other man stated, "Come on, man, take the vehicle" and the men got into Ms. Smith's car and drove it away.
2. Eban and Nie
On the same morning at about 5:45 a.m., Kler Eban was watching from the front door of his home on Sunrise Valley Road in Greensboro, as his wife walked to her car to leave for work. He saw three men walk past his house. Mr. Eban testified the men returned and two went behind his wife's car and one came toward the door of his house and shouted at him to open the door. Mr. Eban testified the men's faces were covered. One of the men pointed a gun wrapped in cloth at Mr. Eban.
Mr. Eban heard a gunshot and attempted to get out of the door to assist his wife. Mr. Eban's wife, Lieu Nie, testified a red Jeep was parked behind her car. The men had shot at her through the driver's side window while she was sitting in the driver's seat.
Two shots were also fired in Mr. Eban's direction. Ms. Nie crawled over the front seat and escaped through the rear door. The robbers entered Ms. Nie's car and stole a shopping bag of new cooking utensils. Mr. Eban testified one of the men got into the Jeep and two of them got into his wife's car and drove it away.
3. Nareau
Around 6:30 a.m., John Nareau drove his car into a parking space at his workplace on Norwalk Street in Greensboro. As he exited his vehicle, a male got in front of him and raised what appeared to be a *366sawed-off shot gun. Mr. Nareau was told "don't try anything. There's two in the back." Mr. Nareau testified the man wore a mask and demanded his wallet and cellphone. After handing over his wallet and phone, Mr. Nareau ran away and watched the men get into a dark colored Jeep and drive away.
4. Tomlin, White, Wilkerson, and Mork
At a little before 7:00 a.m. on the same date, four friends, Elizabeth Tomlin, Brinson White, Clair Wilkerson and Wesley Mork, were loading luggage in the trunk of their rental car, when three men yelled at them "to turn around, mother f-ker;" and "get down mother f-ker." Ms. Tomlin saw the men exit from a red Jeep parked 30-40 feet away. The men wore masks and dark clothing and carried guns. One of the guns appeared to be a sawed-off shotgun. The two women were chased by one man, while Mr. Carter and Mr. Mork were detained on the ground by the other two men from the Jeep. Mr. Mork's wallet and cash were stolen and cash was stolen from Mr. Carter.
During the pursuit, Ms. Tomlin's and Ms. Wilkerson's bags were taken. One of the attackers yelled "get in the car and take the car." The keys to the rental car were not in the vehicle, so all three men ran back to the Jeep and left.
5. Holland
Nicholas Holland was the final victim of the related crimes that occurred that morning. As Mr. Holland left his residence on Tremont Street in Greensboro, he noticed two males walk past the house. Mr. Holland observed a Jeep vehicle quickly pull up in front of his house. A masked male with a handgun demanded, "Give me what you have." Mr. Holland offered his brief case and car keys and attempted to run away. One of the men chased him until the same Jeep pulled up and the man climbed inside. The Jeep sped away.
*606B. Investigations
In response to the robberies, Greensboro Police Detective Devin Allis received a dispatch with a description of the dark colored Jeep Cherokee being involved. Detective Allis pursued the Jeep and apprehended the driver, Aaron Spivey, after a chase. Mr. Spivey was arrested with Mr. Mork's wallet in his possession.
After Spivey's arrest, officers located Defendant and LeMarcus McKinnon walking in a nearby area. Defendant and McKinnon ran as the officers approached and had identified themselves. Defendant was *367apprehended by Lieutenant Larry Patterson. When arrested, Defendant was wearing a dark colored T-shirt, dark blue jeans and grey sneakers. He had cash, Mr. Nareau's cellphone and the keys to Ms. Nie's car in his possession.
When interviewed by police, Defendant initially denied any involvement in the robberies. Eventually Defendant admitted he had been present in the dark Jeep Cherokee with Spivey and McKinnon. Defendant stated he and McKinnon were cousins and were "tight." Defendant acknowledged he had met Spivey the previous week. Defendant also told police he had handled one of the guns a few days before the robberies.
Defendant told police officers he had been a passenger in the Jeep and witnessed the robberies perpetrated by the others. Defendant admitted driving the Jeep from the scene of the robbery of Ms. Nie and to later meeting Spivey and McKinnon for the subsequent robberies.
Officers recovered three pair of gloves, a blue toboggan, a black and grey bandana and a black headband or neckwarmer from inside the passenger area of the Jeep Cherokee. The handbags and briefcase belonging to the various victims were also recovered from inside the Jeep.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015) and N.C. Gen. Stat. § 15A-1444(a) (2015).
III. Issue
Defendant asserts the trial court erred by failing to dismiss four of the conspiracy charges and argues the State's evidence supported only a single charge.
IV. Standard of Review
"We review the trial court's denial of a motion to dismiss de novo ." State v. Sanders ,
In ruling on a motion to dismiss for insufficiency of the evidence,
the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. All evidence, competent or incompetent, must be considered. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered....
*368[S]o long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also permits a reasonable inference of the defendant's innocence. The test for sufficiency of the evidence is the same whether the evidence is direct, circumstantial or both.
State v. Bradshaw ,
V. Analysis
A. State's evidence
"A criminal conspiracy is an agreement between two or more persons to do an unlawful act...." State v. Massey ,
A conspiracy ordinarily "ends with the attainment of its criminal objectives...." State v. Tirado ,
The State alleged Defendant, Mr. Spivey and Mr. McKinnon conspired to commit the robberies of Ms. Smith, Ms. Lie, Mr. Nareau, Ms. Tomlin, Ms. Wilkerson, Mr. Mork and Mr. Holland. The State proceeded on five indictments alleging each incident as a separate conspiracy. The State did not offer the testimony of Spivey or McKinnon, Defendant's alleged co-conspirators. The only witnesses called by the State were the victims of the robberies and the police officers involved in the investigation of the crimes.
We all agree the evidence supports the conclusion that Defendant, Spivey and McKinnon conspired to commit the robberies. The State's evidence showed Defendant and his compatriots were all wearing dark clothing. Implements indicating planning in advance and to assist committing robberies were recovered from inside the Jeep: head and face coverings, gloves, and weapons.
Defendant testified concerning his relationship with McKinnon, his cousin, and that he had met Spivey the week prior to the crimes, and had handled a shotgun used in the robberies a few days before the *369robberies and admitted being present inside the Jeep Cherokee when the crimes occurred. All three men had been together on the afternoon of 21 March 2014. Defendant testified he, Spivey and McKinnon had been drinking and taking drugs together during the evening before and into the morning of the robberies and that all three men had headed out and traveled together in the early morning hours in the Jeep.
B. Single Conspiracy Cases
Defendant argues all of the above facts present only evidence of a single conspiracy to commit robberies on the morning of 22 March 2014. Defendant asserts State v. Medlin,
1. State v. Medlin
In Medlin , the defendant and two others were charged with break-ins and thefts of seven retail stores over the period of four months. Medlin,
This Court recognized "[w]hen the evidence shows a series of agreements or acts constituting a single conspiracy, a defendant cannot be prosecuted on multiple conspiracy indictments consistent with the constitutional prohibition against double jeopardy."
While there is no simple test for determining whether there was one conspiracy or multiple conspiracies, the Court acknowledged several *370factors impact the determination of the number of conspiracies, including: "time intervals, participants, objectives, and number of meetings."
In Fink , the conspiracies charged had occurred within hours of each other. Fink ,
3. State v. Wilson
In State v. Wilson ,
This Court found the facts of Wilson "to be legally indistinguishable from Medlin " and stated, "evidence that a common scheme of a single conspiracy to commit armed robberies to acquire cash existed." Id. at 346,
4. State v. Griffin
This Court also reached a similar conclusion in State v. Griffin ,
Furthermore, "the State presented no evidence concerning the number of meetings which took place between [the] defendant and the other participants."
Here, Defendant argues none of the other perpetrators testified at trial and the State offered no direct evidence of any planning or conversations before or between each event. The State offered no testimony concerning any discussions between the co-participants before, during or after each robbery. Defendant argues the State's evidence was sufficient to allow the jury to infer only a single conspiracy had occurred based upon the implements found in the Jeep, the victims' belongings found on all of the culprits, and Defendant's own statements that he had met up with the co-conspirators before their crime spree began. We disagree.
C. Multiple Conspiracies
The State asserts the facts before us are distinguishable from the line of cases above. Unlike the facts in State v. Medlin, no evidence shows any meeting took place between Defendant and the other two robbers subsequent to any of the robberies to plan additional robberies in furtherance of any prior agreement to engage in as many crimes as possible, only that the three men were drinking and doing drugs together the evening and morning before the crimes were committed. There was no evidence that the Defendant and his co-conspirators conspired to engage in as many robberies as they could. They agreed and engaged in random *609robberies as the opportunities appeared before them.
The dissenting judge asserts the State "impliedly" admits it did not prove five separate agreements. We disagree. On brief, the State acknowledges there was no proof of any meeting about or discussion between Defendant and the other perpetrators to plan to commit a series of robberies . Evidence was offered by the State and by Defendant of *372meetings and interactions with Defendant and the other conspirators, before and between each robbery, but no evidence of the conversations.
The facts in Wilson are also dissimilar to the instant case. No evidence shows any meeting being held between Defendant and the other robbers prior to the robberies to discuss or plan the robberies, or the specific property to be stolen during the course of the robberies. Unlike the facts in Fink and Griffin , there is no evidence of a meeting between Defendant and the other two perpetrators to devise a single plan to engage in a series of robberies.
The dissent finds Defendant's case to be most similar to Medlin . However the State's evidence showed defendant-Medlin initiated the idea and suggested to his co-conspirators the plan to break in and steal the televisions and radios that he could sell in his thrift store. Medlin ,
No evidence limits Defendant as engaged in a one-time, pre-planned and organized, ongoing and continuing conspiracy to engage in robbery and the other crimes. In particular, the random nature and happenstance of the robberies and related crimes here do not indicate a one-time, pre-planned conspiracy. The victims and property stolen were not connected. The victims and crimes committed arose at random and by pure opportunity. Each of the series of crimes on the various victims was committed and completed before Defendant and his co-conspirators moved on and happened upon and mutually agreed to rob and commit other crimes on their next targets and victims of opportunity. Defendant's argument is overruled.
1. State v. Roberts
In State v. Roberts ,
*373This Court determined the State had shown separate conspiracies where the defendant and two men agreed to rob someone and nothing else showed subsequent similar criminal acts were committed as part of their initial agreement. Id . at 167,
2. State v. Glisson
A recent case before this Court addressed the defendant's argument that he had engaged in a single conspiracy to complete three separate transactions. State v. Glisson , --- N.C. App. ----,
This Court held "evidence was sufficient to support a reasonable inference that the defendant planned each transaction in response to separate, individual requests by the buyers...."
Considering the totality of the circumstances in the present case, and reviewing the evidence in the light most favorable to the State, sufficient evidence supports a reasonable inference for the jury to consider and conclude that Defendant was involved in five separate conspiracies to commit armed robbery.
While the dissenting opinion sets forth our same standard of review on motions to dismiss, it appears to ignore its application to the motion to dismiss in the case before us. "In 'borderline' or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals." State v. Hamilton ,
*374VI. Conclusion
In a motion to dismiss, the trial court must consider the evidence of multiple conspiracies in the light most favorable to the State and give the State every reasonable inference to be draw from the evidence presented. Bradshaw ,
NO ERROR.
Judge STROUD concurs.
Judge ELMORE dissents with separate opinion.
Dissenting Opinion
I respectfully disagree with the majority's decision to affirm the trial court's denial of defendant's motions to dismiss four of the five counts of conspiracy to commit robbery with a firearm. The State failed to present substantial evidence of multiple agreements between defendant and his co-conspirators as required to prove more than one conspiracy. Applying the four factors from State v. Rozier ,
I. Standard of Review
A trial court's denial of a motion to dismiss is accorded de novo review. State v. Sanders ,
*375II. Criminal Conspiracy
"A criminal conspiracy is an agreement between two or more people to do an unlawful act.... [T]o prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice." State v. Morgan,
Nevertheless, it is difficult to determine whether a single or multiple conspiracies are involved in a particular case. This Court in Rozier established four factors to consider when determining whether a defendant has committed single or multiple conspiracies.
III. Summary of Rozier Cases
A. State v. Medlin
In State v. Medlin , the State's evidence showed that the defendant participated in ten break-ins of retail stores across Durham from May *376to August of 1985.
The Medlin panel, applying the Rozier factors, "[found] ample evidence of a single conspiracy." Id . at 122,
The gist of the meetings was to plan subsequent break-ins in furtherance of the original unlawful agreement made sometime before the first break-in. We are hard pressed to find facts more clearly telling of an ongoing series of acts in furtherance of a single conspiracy to break or enter. Rather than show ten separate conspiracies to break or enter on ten separate occasions as the State contends, these facts show one unlawful agreement to break or enter as many times as the participants could get away with.
Id . Accordingly, the Medlin panel vacated the defendant's seven conspiracy convictions and remanded for entry of a judgment on one conspiracy conviction, with instructions *612to resentence the defendant on this single conspiracy conviction. Id . at 123,
In State v. Wilson , the State's evidence showed the defendant participated in a series of residential and retail robberies that occurred in Durham over two weeks in December 1988.
On appeal, the Wilson panel concluded the facts were "legally indistinguishable" from Medlin . Id . at 346,
C. State v. Griffin
In State v. Griffin , the defendant was indicted on eight counts of conspiracy to provide an inmate with a controlled substance.
*378The Griffin panel applied the Rozier factors and held that this amounted to one conspiracy, not four. Id . at 841,
D. State v. Fink
In State v. Fink , the State's evidence revealed that the defendant and his brothers sold cocaine from their house.
On appeal, the Fink panel held that the two charged conspiracies "were so overlapped as to comprise one continuing conspiracy." Id . at 533,
*379IV. Analysis
I agree with defendant that the four Rozier cases are similar to the present case. Each relevant factor is addressed in turn.
A. Application of Rozier Factors
i. Time Intervals
The first Rozier factor is the time interval between each crime. It is implied that time is a crucial factor because a short time interval between crimes signifies a low possibility that an agreement can be made between each crime.
The panel in each of the four Rozier cases found the respective time intervals to be short. Griffin ,
Here, the time interval in which the five robberies occurred is two to three hours-much shorter than in any of the four Rozier cases. Notably, the longest time interval cited by any of the Rozier cases is four months, yet the Medlin panel still held that application of the Rozier factors resulted in a single conspiracy. Nevertheless, the majority fails to credit the time interval of two to three hours in this case.
ii. Participants
The second Rozier factor is the specific participants involved in each crime. This factor is significant because when the participants to each crime are completely different, the State must prove separate conspiracies for each crime. However, when the participants are the same, there could potentially be one conspiracy to commit several crimes.
In Medlin and Wilson , the same two individuals participated in each crime, but a third individual participated in some but not all of the crimes. In Fink , the defendant and his brother participated in each alleged crime, despite the SBI's use of a middle man to make the drug purchase. Regardless, the Wilson panel determined that the addition or absence of one participant was "inconsequential."
*380That scenario is not present in this case. Here, as in Griffin , the participants are the exact same in each of the five robberies.
iii. Objectives
The third Rozier factor is the objective of each alleged conspiracy.
Each panel in the Rozier cases determined that the objective of each alleged conspiracy was the same. The Medlin panel determined that the conspirators had the common goal to "break or enter as many times as [they]
*614could get away with." The Wilson panel concluded there was a common objective to acquire cash during the several robberies, which was determined based on the nature of the robberies and the testimony of a participant.
Defendant's case is most similar to Medlin . Here, the participants committed a string of robberies early one morning over the course of a few hours before they were caught by the police. Unlike Wilson , there was no testimony from a participant about the objective, but the objective here can be determined based on the nature and similarity of the crimes. Thus, the objective of each alleged conspiracy is to commit an armed robbery, which leans toward a single conspiracy.
iv. Meetings
The final Rozier factor is the number of meetings among the participants. This factor is crucial to determining the number of conspiracies because it tends to reflect the number of agreements among the participants. To prove a single conspiracy, the State must show an express or implied understanding of an agreement. Morgan,
In Griffin , Wilson , and Fink , the State presented no evidence of any meetings among the conspirators before, during, or after the crimes that would allow the jury to infer implied understandings of agreements. Although the Medlin panel determined that the participants met between the robberies, the purpose of the meetings was to divide the *381spoils and plan the next robbery "in furtherance of the original unlawful agreement." One similarity in each Rozier case is that no panel held that an implied understanding could be shown by the participants' actions.
As the majority notes, the State "offered no testimony concerning any discussions between the co-participants before, during, or after each robbery," similar to Griffin , Wilson , and Fink . However, there is evidence that defendant spent the evening prior to the robberies with the other two perpetrators. Although this may be enough for a jury to find an implied understanding of an agreement for a single conspiracy, I respectfully disagree with the majority's conclusion that there is no error in defendant's convictions.
The State failed to present substantial evidence of four meetings or agreements among the participants. The State charged defendant with five conspiracies and, under Griffin , was required to prove five separate meetings or agreements between the participants. Defendant established an implied understanding for one agreement when he testified that he and his fellow perpetrators met the night before the robbery. This single meeting is only enough for the jury to infer a single conspiracy, and the burden was on the State to present evidence of four other separate meetings or agreements. However, the State impliedly admits that it failed to do this by arguing on appeal that "[i]ndeed, there is no evidence present that any meetings ever took place between the defendant and any of his fellow perpetrators." (Emphasis added.) Because the State did not present any evidence-substantial or not-of the agreement element for four of the five conspiracies, the trial court should have granted defendant's motion to dismiss. The State argues there was an implied understanding to commit each robbery based on the action of committing each robbery. However, the panels in the Rozier cases did not find an implied understanding based on the participants' actions, and I believe it would be unwise to depart from that precedent now.
B. "Continuing Conspiracy"
The Fink panel, like Wilson and Griffin, determined there was no evidence of any meetings between any co-conspirator prior to or during the crimes. It held, however, that there was a "continuing conspiracy" to commit a crime. Here, the majority does not believe this is a continuing conspiracy because each crime was "committed and completed before [d]efendant and his co-conspirators *615moved on and happened upon and mutually agreed to rob and commit other crimes on their next targets ..." (Emphasis added.) I respectfully disagree. The five robberies at issue here were completed in an exceedingly short time interval, the same *382participants were involved in each robbery, there was a common objective to commit each crime, and the State did not present evidence of five separate agreements between the co-conspirators. Furthermore, the majority concludes that the participants mutually agreed to commit these crimes without evidence of five separate agreements.
C. Multiple Conspiracy Cases
The majority cites to two cases from this Court to support its conclusion that there were multiple conspiracies here. Both, however, are distinguishable from the instant case.
i. State v. Roberts
In State v. Roberts , the State's evidence showed the defendant engaged in two robberies on consecutive nights in December 2002.
On appeal, the Roberts panel mentioned the Rozier factors but did not apply them. Id . at 167,
The majority cites to Roberts to show that our Court has upheld multiple conspiracy convictions, but fails to see that Roberts indicates that defendant here should have been charged with one conspiracy. In Roberts , the defendant was charged with two counts of two different conspiracies, which required the State to prove separate elements for each different conspiracy. It is not clear whether the defendant in *383Roberts participated in each robbery with the same two perpetrators. Assuming arguendo that the defendant was the only common perpetrator in each robbery, then the defendant would have had to make two separate agreements.
Here, the perpetrators in the five robberies were all the same, and defendant was charged with five counts of conspiracy to commit robbery with a firearm. This means the State had to prove each element of this conspiracy five separate times, but the evidence only established the "agreement" element once. Thus, Roberts is distinguishable from the case at bar, and I would not apply it.
ii. State v. Glisson
In State v. Glisson , the defendant sold oxycodone to an undercover officer on three separate occasions. --- N.C. App. at ----,
*616On appeal, the Glisson panel applied the Rozier factors and found multiple conspiracies.
Again, the majority cites to Glisson to support its contention that our Court has previously found multiple conspiracies, but it fails to acknowledge the factual differences between the two cases. First, as in Roberts , the defendant in Glisson was charged with three conspiracies related to three different incident offenses, which required the State *384to prove separate elements for each conspiracy. Here, defendant was charged with five counts of conspiracy for the same incident offense. Second, even though the Glisson panel applied the Rozier factors, the "meeting" factor is significantly different. In Glisson , it was determined there were no meetings between the participants, except for the drug buys themselves, because the defendant did not initiate the transactions and thus could not have anticipated the future drug buys. Here, defendant spent the night prior to the robberies with his fellow perpetrators, and a jury could infer that the purpose of this meeting was to plan and agree to commit as many robberies as possible. Additionally, the State presented no evidence of any other meetings prior to or during the robberies. Coupled with the other Rozier factors, this indicates a single conspiracy. This case is therefore distinguishable from Glisson .
V. Conclusion
The majority declines to apply Rozier and its progeny to this case, effectively overlooking years of precedent from this Court. I, however, would apply the Rozier factors to defendant's case. First, the time interval was a few hours-much shorter than in Medlin , Wilson , Griffin , or Fink . Second, the participants in the five robberies appear to be the same: defendant and the two men he met earlier that night. Third, the objective of each crime is the same: to commit robbery with a dangerous weapon. Finally, the State presented no evidence of any meetings between defendant and the co-conspirators prior to or during the robberies. Although the jury could find an implied understanding to commit a robbery based on defendant's testimony that he spent the evening prior to the robberies with the other two perpetrators, this only supports one conspiracy conviction; the State failed to present evidence of four other separate meetings or agreements. Similar to Medlin , the facts here show one agreement to commit as many robberies as possible.
Applying Rozier , I believe defendant committed only one conspiracy. I would therefore hold that the trial court erred by failing to dismiss the four other counts of conspiracy to commit robbery with a firearm, and I would vacate four of defendant's five conspiracy convictions and remand for resentencing on the remaining one. See, e.g. , Rozier ,
