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  "name": "STATE OF NORTH CAROLINA v. LEONARD HICKS",
  "name_abbreviation": "State v. Hicks",
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    "judges": [
      "Judges Eagles and ORR concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LEONARD HICKS"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nI\nDefendant, by his first Assignment of Error, argues that the allegations contained in the indictment returned against him were fatally insufficient to charge the alleged offenses. We disagree.\nG.S. 15A-924(a)(5), prescribes the requirements for a criminal indictment, in pertinent part, as follows:\n(a) A criminal pleading must contain:\n(5) A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\nG.S. 15-153 provides the following:\nsec. 153. Bill or warrant not quashed for informality.\nEvery criminal proceeding by warrant, indictment, information, or impeachment is sufficient in form for all intents and purposes if it expresses the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill of proceeding, sufficient matter appears to enable the court to proceed to judgment.\nThe purpose of an indictment \u201cis (1) to give the defendant notice of the charge against him to the end that he may prepare his defense and to be in a position to plead former acquittal or former conviction in the event he is again brought to trial for the same offense; [and] (2) to enable the court to know what judgment to pronounce in case of conviction.\u201d E.g., State v. Burton, 243 N.C. 277, 278, 90 S.E. 2d 390, 391 (1955). Bearing these principles in mind we turn to the sufficiency of the allegations of the indictment before us.\nThe indictment in the case sub judice charged defendant with two counts of conspiracy. \u201cA 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.\u201d State v. Rozier, 69 N.C. App. 38, 49, 316 S.E. 2d 893, 900 (1984). Defendant\u2019s challenge to the sufficiency of the true bill returned against him is that \u201cthe first count of the indictment is fatally defective because it does not allege the essential elements of the alleged conspiracy.\u201d Defendant argues that the allegation he conspired \u201cto commit felony Breaking, Entering and Larceny\u201d is fatally deficient because the operative language of G.S. 14-54(a) is worded differently, to wit: \u201cbreaking or entering.\u201d However, defendant\u2019s argument fails for an indictment which avers facts which constitute every element of an offense does not have to be couched in the language of the statute. State v. Anderson, 259 N.C. 499, 130 S.E. 2d 857 (1963). Moreover, the mere omission of the word \u201cor\u201d could hardly have affected defendant\u2019s notice of the crime charged, or his ability to prepare his defense. The deviation from the statutory language, if anything, would have to be construed as in defendant\u2019s favor since it was alleged that he conspired to \u201cbreak, [and] enter\u201d as opposed to \u201cbreak or enter.\u201d The indictment returned against defendant alleges that defendant entered into an agreement with two or more persons to commit, on 20 December 1985, the unlawful act of breaking and entering to commit larceny. We deem that the foregoing are sufficient allegations to meet the requirements of G.S. 15A-924(a)(5).\nII\nDefendant also argues that one of his two conspiracy convictions must be vacated because there was evidence of only one agreement. After careful consideration, we agree.\nThe applicable principles which we must rely upon to decide the question before us were summarized by this Court as follows:\nIt is well established that the gist of the crime of conspiracy is the agreement itself, not the commission of the substantive crime. See e.g., State v. Looney, 294 N.C. 1, 240 S.E. 2d 612 (1978); see also Braverman v. United States, 317 U.S. 49, 87 L.Ed. 23, 63 S.Ct. 99 (1942). It is also clear that where a series of agreements or acts constitute a single conspiracy, a defendant cannot be subjected to multiple indictments consistently with the constitutional guarantee against double jeopardy. United States v. Kissel, 218 U.S. 601, 54 L.Ed. 1168, 31 S.Ct. 124 (1910). Defining the scope of a conspiracy or conspiracies remains a thorny problem for the courts. This Court has affirmed multiple conspiracy convictions arising from multiple substantive narcotics offenses involving a single amount of drugs found on a single occasion, State v. Sanderson, 60 N.C. App. 604, 300 S.E. 2d 9, disc. rev. denied, 308 N.C. 679, 304 S.E. 2d 759 (1983), apparently on the theory that each conspiracy involved separate elements of proof and represented a separate agreement. However, under North Carolina law multiple overt acts arising from a single agreement do not permit prosecutions for multiple conspiracies. State v. Brewer, 258 N.C. 533, 129 S.E. 2d 262 (1963), appeal dismissed, 375 U.S. 9, 84 S.Ct. 72, 11 L.Ed. 2d 40 (1963) (per curiam). There is no simple test for determining whether single or multiple conspiracies are involved: the essential question is the nature of the agreement or agreements, Brav-erman v. United States, supra, but factors such as time intervals, participants, objectives, and number of meetings all must be considered.\nState v. Rozier, 69 N.C. App. 38, 52, 316 S.E. 2d 893, 902 (emphasis in original), cert. denied, 312 N.C. 88, 321 S.E. 2d 907 (1984). This Court, in Rozier, supra, further stated \u201cthat the State, having elected to charge separate conspiracies, must prove not only the existence of at least two agreements but also that they were separate.\u201d Id. at 53, 316 S.E. 2d at 902.\nThe evidence in the case sub judice only established the existence of one agreement and only one conspiracy, to wit: that defendant conspired with Richard Lee Elliott and Timothy Ray to break into Thomas\u2019 house to steal property from within. Testimony by defendant\u2019s co-conspirators was that at 1:30 p.m. on 20 December 1985, defendant drove his red Trans Am automobile to Richard Elliott\u2019s home. Accompanying defendant was Timothy Ray. Richard Elliott testified that he entered defendant\u2019s automobile and defendant drove the trio to a house located at Route 1, Bunn Level. Richard Elliott testified that upon their arrival \u201che [defendant] passed by the house and in a little ways he let us off and told us to go in there and get what we could get.\u201d Richard Elliott further testified that \u201c[h]e [defendant] told us to get what we could get and put it in pillowcases and he would come back in fifteen minutes to pick us up.\u201d The whole objective of the agreement was to break into the house and \u201cget what [they] could get.\u201d The agreement was entered into during one meeting with very little said and with one objective in mind. There was no evidence of two separate agreements or of any other meetings between the participants.\nThe State, in its brief, argues that \u201c[f]elony breaking or entering as defined in G.S. 14-54(a) and felony larceny as defined in G.S. 14-72 are separate crimes, and conviction of either does not bar prosecution for the other even though the crimes arise out of the same transaction.\u201d However, the point missed by this argument is that the two convictions defendant appeals from are for two agreements to commit the substantive underlying offenses, not for the commission of offenses in violation of G.S. 14-52(a) and G.S. 14-72. We cannot allow both convictions to stand when there was evidence of only one agreement. Rozier, supra. Therefore, we vacate the judgment imposing a two year sentence for the conviction of defendant for the second count of the indictment charging him with conspiracy to commit felonious larceny. To rule otherwise would offend double jeopardy principles. Roz-ier, supra.\nIll\nBy his final Assignment of Error defendant argues that he \u201cis entitled to a new trial because the trial court failed to submit the verdict of not guilty to the jury in the verdict form, thereby improperly expressing its opinion and coercing the jury into returning a guilty verdict.\u201d After extensively reviewing the verdict form in question, the trial court\u2019s instructions to the jury and the poll of the jury after it returned its verdict, we find no prejudicial error.\nG.S. 15A-1237 requires that the jury\u2019s verdict be in writing. The verdict form submitted to the jury with the answer returned by the jury is as follows:\nVerdict-No. 85CRS10299\nWe, the Jury, by unanimous verdict, find the defendant Leonard Hicks:\n(1) Guilty of felonious conspiracy to commit felonious Breaking and Entering.\nAnswer:\n(2) Guilty of felonious Conspiracy to commit felonious Larceny.\nAnswer:\n(Exceptions omitted.) The trial court, in its instructions to the jury, assiduously instructed the jury on its duty to return verdicts of \u201cnot guilty\u201d if the jury had a reasonable doubt as to defendant\u2019s guilt. With respect to the verdict sheet, the trial court specifically instructed the jury as follows:\nWhen all twelve members of the jury agree on a verdict, your foreperson should record your verdict on the verdict sheet. There are two counts and the foreperson should write in \u2018guilty' or 'not guilty\u2019 where the word \u2018answer\u2019 is, and there is a line drawn there.\n(Emphasis supplied.)\nThe trial court\u2019s final mandate to the jury specifically instructs the jury with respect to the permissible verdicts that it could return. Moreover, the trial court specifically instructed the jury on how to enter the verdict on the sheet supplied to them by the trial court. When the jury was polled each juror answered that the verdict returned by the foreperson was his or her verdict and that each still assented thereto. Accordingly, although the verdict sheet utilized by the trial court is not preferred and the use of \u201cnot guilty\u201d on the verdict sheet is preferred we conclude that there is no reasonable possibility that the outcome would have differed if the jury verdict sheet had been worded differently. See G.S. 15A-1443.\nCase No. 1 \u201485CRS10299; affirmed.\nCase No. 2 \u201485CRS10299; judgment vacated.\nJudges Eagles and ORR concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General James B. Richmond, for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender, Daniel R. Pollitt, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LEONARD HICKS\nNo. 8611SC1095\n(Filed 2 June 1987)\n1. Burglary and Unlawful Breakings \u00a7 3\u2014 breaking and entering alleged \u2014 failure to use the disjunctive \u2014 indictment not fatally defective\nAn indictment which charged defendant with conspiracy \u201cto commit Breaking, Entering and Larceny\u201d was not fatally defective because it failed to allege conspiracy to break or enter.\n2. Conspiracy \u00a7 6\u2014 conspiracy to break or enter \u2014 conspiracy to commit larceny \u2014 evidence of only one agreement \u2014 two convictions improper\nDefendant could not be convicted of both conspiracy to break or enter and conspiracy to commit larceny where there was evidence of only one agreement and therefore one conspiracy.\n3. Criminal Law \u00a7 124\u2014 verdict sheet \u2014use of \u201cguilty\u201d \u2014 defendant not prejudiced\nAlthough the verdict sheet used by the trial court was not preferred and the use of the words \u201cnot guilty\u201d on the verdict sheet is preferred, defendant was not prejudiced in light of the verdict form itself, the trial court\u2019s instructions to the jury, and the poll of the jury after it returned its verdict.\nAppeal by defendant from Bowen, Wiley F\u201e Judge. Judgment entered 13 March 1986 in Superior Court, HARNETT County. Heard in the Court of Appeals 5 March 1987.\nOn 3 February 1986, the Harnett County grand jury returned a two-count true bill against defendant, Leonard Hicks, as follows:\nIndictment\u2014Conspiracy\u201485CRS10299\nState of North Carolina Harnett County\nIn The General Court of Justice Superior Court Division\nState v. Leonard Hicks\nThe jurors for the State upon their oath present that on or about the 20th day of December, 1985, in the county named above the defendant named above unlawfully, willfully and feloniously did conspire with Richard Lee Elliott and Timothy Ray to commit the offense of felony Breaking, Entering and Larceny.\nAnd the jurors for the State upon their oath present that on or about the 20 day of December, 1985, in the county named above the defendant named above unlawfully, willfully and feloniously did conspire with Richard Lee Elliott and Timothy Ray to commit the offense of felony Larceny.\nOn 11 March 1986, defendant was tried before a jury. The State presented evidence that tended to show the following:\nAt 1:30 in the afternoon of 20 December 1985, defendant, Leonard Hicks, along with Timothy Ray, rode in defendant\u2019s automobile to the home of Richard Lee Elliott. The trio proceeded to drive to the home of Kevin Thomas. Elliott testified that defendant passed by Kevin Thomas\u2019 home, stopped, parked his automobile, and told Ray and Elliott \u201cto go in there and get what we could get.\u201d Defendant told Ray and Elliott that he would wait for them down the road. Elliott further testified that he and Ray proceeded to Kevin Thomas\u2019 house and knocked on the door, that they did not receive an answer, and that they went to the back door where they were met by Kevin Thomas.\nKevin Thomas testified that while home sick on the afternoon of 20 December 1985, he heard his dogs barking at something in his yard. He looked out the window to see what they were barking at and saw them take off chasing after a maroon Trans Am automobile going down the road. After five or six minutes he saw two black males come down the edge of the woods toward his house, pass through his barking dogs, walk right up to his front door, and began pounding on the door. Thomas went to the rear of his home to get a twelve-gauge shotgun. Thomas saw that the two men had come from his front door to a deck at the back of his home where there is a sliding-glass door. Thomas confronted the men. One man, whom Thomas later identified as being Timothy Ray, stated that he was looking for gas for his car. Thomas told Ray there was no gas on his back porch and to back away from the sliding-glass door. Thomas telephoned the sheriffs office.\nElliott testified that he and Ray went down the road to wait, for defendant. Two patrol cars arrived on the scene while Ray and Elliott were waiting for defendant. Ray and Elliott were questioned and were being transported to the sheriffs department when Elliott observed defendant driving back to the place where defendant had let them out of the automobile. The officers stopped defendant\u2019s automobile and instructed him to follow them to the sheriffs department. A deputy sheriff testified that defendant was driving a maroon Pontiac sports car.\nDefendant\u2019s evidence tended to show the following: Defendant, testifying in his behalf, denied that on 20 December 1985, he had been with, or conspired with, Timothy Ray and Richard Lee Elliott. Defendant testified that when he was stopped by sheriffs deputies on 20 December 1985, he was driving a candy-apple red Firebird automobile, and that he was on his way home after having gone to Bruce West\u2019s shop located near Thomas\u2019 house. It was also defendant\u2019s testimony that Bruce West was not in when defendant went to Bruce West\u2019s shop. Timothy Ray testified that defendant did not conspire with him and Elliott and that defendant did not transport them to Thomas\u2019 home.\nThe jury found defendant guilty of count one, felonious conspiracy to commit felonious breaking and entering, and guilty of count two, felonious conspiracy to commit felonious larceny. The trial court sentenced defendant to three years imprisonment for felonious conspiracy to commit breaking and entering, and for felonious conspiracy to commit larceny, the trial court sentenced defendant to two years imprisonment to begin at the expiration of the sentence imposed on count one. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General James B. Richmond, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender, Daniel R. Pollitt, for defendant."
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