UNPUBLISHED OPINION
MARTIN, Chief Judge.
Early on the morning of 27 July 2009, Melanie Fargis and defendant were driving around Eden, North Carolina. Fargis, who was 16 years of age, had driven to Virginia the night before to pick up defendant. While they were driving, defendant had told Fargis that he was going to get some money from Jermaine Broadnax, who is also known as "Fat Boy." The pair parked Fargis' car at an abandoned house on Loftus Street and walked down the street to the home where Jermaine Broadnax's mother lived. Fargis sat on the porch and defendant hid behind a trash can. They then waited about an hour for Broadnax to arrive at the house.
At approximately 8:30 a.m., Broadnax arrived in a car driven by his friend, Joe Murphy, and saw Fargis sitting on the front porch. Fargis told Broadnax that her car had broken down and asked to use his cell phone. Broadnax gave her his phone and she began to walk with the phone towards the carport. She stopped in front of a trash can and motioned for Broadnax to join her. He did and, just at that moment, defendant appeared from where he had been hiding behind the trash can, pointing a gun.
Defendant held the gun about two inches from Broadnax's head and told him to get on the ground. Defendant told Fargis to get the money from Broadnax's pockets. While defendant stood over Broadnax holding the gun to the back of his head, Fargis searched his pockets, removed his money, and gave it to defendant. Defendant and Fargis then began to kick Broadnax while he was still down on the ground.
Meanwhile, Murphy, having seen defendant with the gun, fled the scene and found a friend who called the police. Broadnax's family had also seen defendant holding the gun to Broadnax's head and they had also called the police. When defendant and Fargis heard the sound of approaching police sirens, they fled the scene, both running up the street. Defendant discarded his gun as he ran. He was caught by the police a block away from the scene of the crime, hiding in a closet at a friend's home with $897.00 in his pocket. Meanwhile Fargis had gotten into her car and driven away. Broadnax and Murphy followed her in their car to her house. When she got out of her car, she was caught and held by Murphy until the police arrived. A few hours after her arrest, Fargis gave a statement to police in which she described the events of the morning:
We rode around for a while. We were talking because it had been a long time since I had seen him. After riding for a while I I [sic] parked my car at the white house at the corner of Loftus and Galloway Street. [Damion] had said earlier in the car about getting Fat Boy's money. I can't remember exactly what he said but it was clear to me that he was going to rob Fat Boy. [Damion] told me to do as he told me and I would be ok. He said he would not let me get hurt. After parking and getting out of the car we walked down to a house on Loftus Street. Once we got there I sat down at a little table. [Damion] sat on some steps. After sitting there for a little bit I saw the gun [Damion] had. It was a big silver gun. We were sitting there for a while. A car pulled up and two black males got out of the car. The car they had been in [sic] parked in the driveway. When Fat Boy got out [Damion] ran up to him. Fat Boy was yelling something but I don't know what. [Damion] had his gun in his hand. [Damion] was pointing the gun at Fat Boy. I can't remember how he said it, but [Damion] told Fat Boy to give him his money, his dope, to give him everything. Fat Boy said he didn't have any dope. [Damion] told me to go into Fat Boy's pocket, and I did. I pulled out a whole bunch of money. I handed it to [Damion]. All of it. We heard some police sirens and we all took off running. I was scared. I ran to my car. I pulled out and some car was chasing me. I got to my house and Fat Boy and another guy knocked me to the ground. . . .
Fargis subsequently pled guilty to common law robbery and conspiracy to commit common law robbery.
Defendant was charged with (1) robbery with a dangerous weapon, (2) conspiracy to commit robbery with a dangerous weapon, and (3) possession of a firearm by a felon. Defendant pled not guilty to all charges.
At trial, Fargis testified extensively. As part of that testimony, she stated that she parked her car where defendant told her to but that she "wasn't exactly sure why at the time." Defendant had told her that he was going to get some money from Broadnax, but Fargis denied knowing that defendant planned to rob Broadnax or that they had an agreement to do so. She also stated that she did not know that defendant had a gun until they were both out of her car and under the carport at the scene of the robbery. She testified that she did everything defendant ordered her to do because she was scared, she felt she had no other choice, and she was not sure what else to do in that situation. The statement she had given to the police at the time of her arrest was admitted into evidence.
Defendant also testified, denying all involvement in the robbery. He testified that the money was his and that he was going to buy drugs from Broadnax. At the close of the State's evidence and then again at the close of all the evidence, the trial court denied defendant's motions to dismiss the charges due to insufficient evidence.
The jury found defendant guilty of all three charges. Defendant was sentenced to consecutive prison terms of 77 to 102 months for armed robbery, 23 to 37 months for conspiracy to commit armed robbery, and 12 to 15 months for possession of a firearm by a felon.
Defendant appeals from the judgment convicting him of conspiracy to commit armed robbery.
The sole issue raised by this appeal is whether the trial court erred by denying defendant's motions to dismiss the charge of conspiracy to commit robbery with a dangerous weapon due to the insufficiency of the evidence.
"The law attending our review of denials of motions to dismiss in criminal trials is well settled." State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.
If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.
State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). In conducting our analysis, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 417 (1991). Finally, "contradictions and discrepancies do not warrant dismissal of the case——they are for the jury to resolve." State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).
"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." State v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975) (citing State v. Littlejohn, 264 N.C. 571, 574, 142 S.E.2d 132, 134 (1965)). The unlawful act in this case is robbery with a dangerous weapon——a conviction from which defendant does not appeal. We agree with the State that there exists substantial evidence that defendant also engaged in a conspiracy to commit that crime.
Defendant argues that the State's evidence does not show that he had either "an express agreement or a mutual, implied agreement with Melanie Fargis." Rather, defendant argues that Fargis "was an unwilling participant who was used by Defendant to commit the crime."
"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[.]" Id. "`A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.'" Id. at 615-16, 220 S.E.2d at 526 (quoting State v. Smith, 237 N.C. 1, 16, 74 S.E.2d 291, 301 (1953)).
Fargis' testimony at defendant's trial belies his claim that she was an innocent, unwilling participant. There was substantial evidence of a "mutual, implied understanding" present in this case. While driving around Eden in the early morning hours before the robbery, "it was clear to [Fargis] that [defendant] was going to rob [Broadnax]." Yet, she still drove herself and defendant to the scene of the robbery and parked her car several houses away at an abandoned house so that she and defendant could walk to the house unseen by the inhabitants. Fargis and defendant than waited for Broadnax for approximately one hour. While she and defendant waited, "[i]t was clear to [her] . . . what was going to happen." During their wait, defendant told Fargis to "do what he said" and assured her that "[n]obody [would] hurt [her]." At trial, when Fargis was asked why she sat at Broadnax's house for an hour, she replied that she had been "[w]aiting for Fat Boy" "[b]ecause he was going to get robbed." She was then asked, "[b]y who?" and she replied, "[u]s."
Once Broadnax arrived, Fargis lured him towards defendant by falsely telling him that her car had broken down and asking to use his phone. He gave her his phone and she walked with the phone to a place in front of the trash can behind which defendant was hiding. She motioned for Broadnax to join her. When he did, defendant emerged from behind the trash can pointing a gun at Broadnax. As defendant held the gun to Broadnax's head, Fargis then emptied his pockets of all of his money. After the robbery was complete, Fargis and defendant both kicked Broadnax while he was down on the ground.
We hold this evidence to be sufficient evidence of a "mutual, implied understanding" between Fargis and defendant to allow the conspiracy charge to go to the jury.
No error.
Judges STEPHENS and THIGPEN concur.
Report per Rule 30(e).
