An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA 13-1298
                        NORTH CAROLINA COURT OF APPEALS
                           Filed:     16 September 2014
STATE OF NORTH CAROLINA

                                              Wake County
      v.                                      Nos. 11 CRS 221410;
                                              12 CRS 8966, 11048

TYRECE ANTONIO THOMAS


      Appeal by defendant from judgments entered 17 May 2013 by

Judge Paul C. Ridgeway in Wake County Superior Court.                      Heard in

the Court of Appeals 23 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Stuart M. Saunders, for the State.

      Mergerian & Wells, by Franklin E. Wells, Jr., for Defendant.

      ERVIN, Judge.


      Defendant      Tyrece    Antonio     Thomas     appeals     from     judgments

entered based upon his convictions for one count of robbery with a

dangerous weapon, two counts of attempted robbery with a dangerous

weapon, and two counts of conspiracy to commit robbery with a

dangerous weapon.         On appeal, Defendant contends that the trial

court erred by admitting testimony concerning an unrelated alleged

robbery;     and   by    denying     his   motion     to   dismiss       the   second
                                      -2-
conspiracy to commit robbery with a dangerous weapon charge for

insufficiency of the evidence.              After careful consideration of

Defendant’s challenges to the trial court’s judgments in light of

the record and the applicable law, we conclude that the trial

court’s judgment stemming from Defendant’s second conspiracy to

commit   robbery   with   a    dangerous     weapon    conviction    should   be

vacated; that judgment should be arrested in one of Defendant’s

two convictions for conspiracy to commit robbery with a dangerous

weapon; that the case in which the trial court sentenced Defendant

based upon his convictions for two counts of conspiracy to commit

robbery with a dangerous weapon should be remanded to the Wake

County Superior Court for resentencing; and that the trial court’s

other judgment should remain undisturbed.

                          I. Factual Background

                          A. Substantive Facts

    At    approximately       2:00   a.m.    on   11   September    2011,   John

Limbouris, Michael Yahyapour, and Blake Johnson all returned to

Mr. Limbouris’ apartment after spending several hours at the Five

Points Bar and Grill in Raleigh.             As part of that process, Mr.

Yahyapour rode with Mr. Limbouris back to his apartment, while Mr.

Johnson took a cab.       Once he had parked his car and exited the

vehicle, Mr. Limbouris saw Mr. Johnson, who had arrived a few
                                -3-
minutes before Mr. Limbouris and Mr. Yahyapour, standing near his

apartment.

     After telling Mr. Yahyapour to hurry up and get out of his

car, Mr. Limbouris turned around, looked up, and saw two men

running towards him.   Although Mr. Limbouris yelled at the two men

as they approached, the two men continued to charge towards him

while brandishing firearms.

     Mr. Limbouris and Mr. Yahyapour described one of the two men,

later identified as Antonio Freeman, as a “taller, lankier, sinewy

looking fellow” who was approximately six feet, two inches tall1

and described the other man, later identified as Defendant, as

weighing about 200 pounds and being about five feet, seven inches,

or five feet, eight inches tall.2     According to both Mr. Limbouris

and Mr. Yahyapour, the taller man was carrying a gun with a longer

barrel, while Mr. Limbouris indicated that the shorter man was

carrying a smaller handgun.    Both men wore dark clothes and had




     1
      Mr. Freeman, who testified for the State, pled guilty to one
count of robbery with a dangerous weapon, one count of conspiracy
to commit robbery with a dangerous weapon, and two counts of
attempted robbery with a dangerous weapon pursuant to a negotiated
plea under which all of his convictions were to be consolidated
for judgment. Mr. Freeman had not been sentenced as of the date
of Defendant’s trial.
     2
      The identifications described in the text were made by Mr.
Freeman.   The victims never identified Defendant as one of the
perpetrators of the robbery.
                                -4-
covered half of their faces with bandannas, and the taller man

also wore a black toboggan.

    As the two men neared Mr. Limbouris, Mr. Yahyapour, and Mr.

Johnson, the taller man approached Mr. Yahyapour while the shorter

man approached Mr. Limbouris.     At that point, Mr. Johnson was

farther from the two armed men at a point near the apartment

building and facing away from Mr. Limbouris and Mr. Yahyapour.

Upon reaching Mr. Limbouris, Mr. Yahyapour, and Mr. Johnson, the

two armed men told them to take their wallets and all of the other

items in their possession out of their pockets.

    As the robbery occurred, Mr. Johnson phoned 911.    Before the

police could arrive, however, Mr. Yahyapour removed his Zelli

brand wallet, which contained debit, credit, and identification

cards, and threw it in the direction of the armed men.       On the

other hand, Mr. Limbouris refused to surrender his wallet.    After

the taller man retrieved Mr. Yahyapour’s wallet, the two armed men

ran back down the street toward Fred Fletcher Park.

    Mr. Limbouris pursued the robbers at a safe distance.     As he

did so, Mr. Limbouris saw a black Dodge Nitro driving around a

nearby parking lot.   As a result, Mr. Limbouris stopped following

the robbers at a point about 50 yards from Fred Fletcher Park and

focused his attention on the Nitro.
                                         -5-
      A few minutes after the robbery, Sergeant Tracy Turner and

Officer Julie Pearson of the Raleigh Police Department arrived at

the scene.       As she took a statement from Mr. Limbouris, Officer

Pearson saw a Dodge Nitro.           Although Officer Pearson remained at

the scene of the robbery to finish taking statements from Mr.

Limbouris, Mr. Yahyapour, and Mr. Johnson, Sergeant Turner pursued

the Dodge Nitro and stopped it on a bridge about a half a mile

from Mr. Limbouris’ apartment.             At the time that Sergeant Turner

stopped the Dodge Nitro, Korey Ford was operating the vehicle and

Javonte Goode was sitting in the passenger seat.3

      After taking statements from Mr. Limbouris, Mr. Yahyapour,

and Mr. Johnson, Officer Pearson drove the three victims past the

Dodge Nitro in an attempt to ascertain if any of them could

identify   the    occupants     of   the   vehicle.      As   Officer   Pearson’s

patrol vehicle drove past the Dodge Nitro, the occupants saw a

tall man with dreadlocks and a shorter man.               Although neither Mr.

Limbouris, Mr. Yahyapour, nor Mr. Johnson identified the taller

man as one of the perpetrators of the robbery, the shorter man fit

the   description    of   the    short     man   from   the   robbery   incident.

According to Mr. Ford and Mr. Goode, Mr. Freeman and Defendant,

      3
      Both Mr. Ford, who had been acquitted of involvement in the
robbery, and Mr. Goode, who had been promised that he would not be
prosecuted in the event that he provided truthful testimony,
testified for the State.
                                 -6-
who had been in Mr. Ford’s car earlier in the night, had gotten

out shortly before the robbery without telling either Mr. Ford or

Mr. Goode that they had any intention of engaging in criminal

activity.4

     After leaving the scene of the robbery and being unable to

reunite with Mr. Ford, Defendant and Mr. Freeman ran toward and

eventually hid in Fred Fletcher Park.         From that location, they

could see that the police had stopped the Dodge Nitro.                As a

result, they left their guns, which were concealed in items of

clothing, in a flower bed in the park.             On 11 September 2011,

Kathryn Bauman-Hill found two firearms in Fred Fletcher Park while

attending a picnic and reported her discovery to investigating

officers.       Upon   responding   to       Ms.    Bauman-Hill’s    call,

investigating   officers   discovered    a   loaded   Ruger   .22   caliber

pistol and a loaded Phoenix .25 caliber pistol.               Although Mr.

Freeman’s DNA was found on certain of the items recovered from

Fred Fletcher Park, none of Defendant’s fingerprints or DNA was

found on any of those items.

                       B. Procedural History

     On 11 September 2011, a warrant for arrest charging Defendant

with robbery with a dangerous weapon and conspiracy to commit

robbery with a dangerous weapon was issued.           On 24 October 2011,
     4
      Mr. Ford, Mr. Freeman, Mr. Goode, and Defendant had all
attended Saint Augustine’s College together.
                                             -7-
the Wake County grand jury returned a bill of indictment charging

Defendant with robbery with a dangerous weapon and conspiracy to

commit robbery with a dangerous weapon.                       On 26 November 2012, the

Wake   County      grand    jury        returned      bills   of   indictment         charging

Defendant with two counts of attempted robbery with a dangerous

weapon and two counts of conspiracy to commit robbery with a

dangerous weapon.

       The charges against Defendant came on for trial before the

trial court and a jury at the 15 May 2013 criminal session of the

Wake   County      Superior        Court.        At    the    conclusion        of    all     the

evidence,     the       State    voluntarily          dismissed    one     of    the     three

conspiracy to commit robbery with a dangerous weapon charges.                                  On

17 May 2013, the jury returned verdicts finding Defendant guilty

of one count of robbery with a dangerous weapon, two counts of

attempted    robbery        with    a    dangerous      weapon,    and   two         counts    of

conspiracy to commit robbery with a dangerous weapon.                                   At the

conclusion of the ensuing sentencing hearing, the trial court

consolidated Defendant’s convictions for robbery with a dangerous

weapon and two counts of attempted robbery with a dangerous weapon

for judgment and sentenced Defendant to a term of 51 to 71 months

imprisonment        based       upon     those      convictions      and        consolidated

Defendant’s convictions for two counts of conspiracy to commit

robbery     with    a     dangerous        weapon      for    judgment     and       sentenced
                                         -8-
Defendant to a consecutive term of 24 to 38 months imprisonment

based upon those convictions.            Defendant noted an appeal from the

trial court’s judgments.

                             II. Legal Analysis

                 A. Admission of Prior Bad Act Evidence

      In   his   first    challenge      to    the   trial    court’s   judgment,

Defendant argues that the trial court erred by admitting testimony

concerning a robbery that took place on the night before the

incident at issue in this case.                More specifically, Defendant

contends that evidence of the earlier robbery was irrelevant, did

not   involve    an   incident   that    was    sufficiently    similar   to    the

incident at issue in this case, and had an unfairly prejudicial

effect that outweighed any probative value that the evidence in

question might possess.            We do not find Defendant’s arguments

persuasive.

                             1. Relevant Facts

      At trial, the State elicited evidence from Mr. Freeman and

Claudio    Castro     concerning    an     incident    that    occurred   on     10

September 2011.       According to Mr. Freeman, he and Defendant were

in a difficult financial situation on 10 September 2011.                       As a

result, the two men decided to rob people who were coming home

after a weekend night out.              As a result of their belief that

Defendant’s vehicle was too conspicuous and the fact that Mr.
                                      -9-
Freeman did not own a car, Defendant and Mr. Freeman rode in Mr.

Ford’s Dodge Nitro on this occasion.

    As   Mr.   Castro    and   two   friends   returned    to    his   apartment

complex on the early morning of 10 September 2011 after spending

several hours at a friend’s birthday party, two men, whom Mr.

Freeman identified as Defendant and himself, approached the group,

which   included   Mr.   Castro,     armed   with   guns   and   wearing   dark

clothes, beanies, bandannas, and gloves; pointed their guns at Mr.

Castro and his two friends; and demanded that they hand over their

wallets and cell phones.       Although Mr. Castro initially refused to

give up his cell phone until one of the robbers threatened to

shoot him, Mr. Castro and his friends eventually relinquished

their wallets and phones.        The armed men grabbed the wallets and

phones that had been surrendered by Mr. Castro and his friends and

ran to Mr. Ford’s Dodge Nitro, which drove away.5                 Mr. Freeman,

Mr. Ford, and Defendant split the money that they found in the

wallets taken from Mr. Castro and his friends.

    After allowing the admission of evidence concerning the 10

September 2011 robbery, the trial court instructed the jury that:

           Evidence has been received which you, the
           jury, may find tends to show that on September
           10, 2011, the Defendant and an alleged
           coconspirator robbed other victims.       This
           evidence was received solely for the purpose
    5
      According to Mr. Freeman, Mr. Goode was not present during
the 10 September 2011 incident.
                               -10-
          of showing that the Defendant had a motive for
          the commission of the crime charged in this
          case, and that there existed in the mind of
          the Defendant a plan, scheme, system, or
          design involving the crime charged in this
          case. If you believe the evidence -- if you
          believe this evidence, you may consider it,
          but only for the limited purpose for which it
          was received.   You must not consider it for
          any other purpose.

According to Defendant, the trial court erred by allowing the

admission of this evidence.

                      2. Standard of Review

          [W]hen analyzing rulings applying [N.C. Gen.
          Stat. § 8C-1,] Rules 404(b) and 403, we
          conduct distinct inquiries with different
          standards of review. When the trial court has
          made findings of fact and conclusions of law
          to support its [N.C. Gen. Stat. § 8C-1, Rule]
          404(b) ruling . . .[,] we look to whether the
          evidence supports the findings and whether the
          findings support the conclusions.    We review
          de novo the legal conclusion that the evidence
          is, or is not, within the coverage of [N.C.
          Gen. Stat. § 8C-1,] Rule 404(b).       We then
          review the trial court’s [N.C. Gen. Stat. §
          8C-1,] Rule 403 determination for abuse of
          discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159

(2012).   “Under a de novo review, 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) (quotation omitted).    An “[a]buse of discretion

[occurs] where the court’s ruling is manifestly unsupported by

reason or is so arbitrary that it could not have been the result
                                      -11-
of a reasoned decision.”          State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1988); see also White v. White, 312 N.C. 770,

777, 324 S.E.2d, 829, 833 (1985).

        3. Admissibility of Testimony Concerning Other Robbery

    According to N.C. Gen. Stat. § 8C-1, Rule 404(b), “[e]vidence

of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity

therewith,” but may “be admissible for other purposes, such as

proof    of     motive,     opportunity,     intent,   preparation,   plan,

knowledge,      identity,    or    absence   of   mistake,   entrapment   or

accident.”      As the Supreme Court has noted, N.C. Gen. Stat. § 8C-

1, Rule 404(b) is a

              general rule of inclusion of relevant evidence
              of other crimes, wrongs, or acts by a
              defendant, subject to but one exception
              requiring its exclusion if its only probative
              value is to show that the defendant has the
              propensity or disposition to commit an offense
              of the nature of the crime charged.

State v. Coffey, 326 N.C. 268, 278-279, 389 S.E.2d 48, 54 (1990).

As a result, any evidence properly admitted pursuant to N.C. Gen.

Stat. § 8C-1, Rule 404(b), “‘must be offered for a proper purpose,

must be relevant, [and] must have probative value that is not

substantially outweighed by the danger of unfair prejudice to the

defendant[.]’”      State v. Mohamed, 205 N.C. App. 470, 486-87, 696

S.E.2d 724, 736 (2010) (quoting State v. Haskins, 104 N.C. App.
                                   -12-
675, 679, 411 S.E.2d 376, 380 (1991), disc. review denied, 331

N.C. 287, 417 S.E.2d 256 (1992)).

    The admissibility of evidence proffered pursuant to N.C. Gen.

Stat. § 8C-1, Rule 404(b), “is constrained by the requirements of

similarity and temporal proximity.”         State v. Carpenter, 361 N.C.

382, 388, 646 S.E.2d 105, 110 (2007).             In light of that fact,

“‘[t]he ultimate test for determining whether such evidence is

admissible is whether the incidents are sufficiently similar and

not so remote in time as to be more probative than prejudicial

under the balancing test of [N.C. Gen. Stat.] § 8C-1, Rule 403.’”

State v. Davis, 340 N.C. 1, 14, 455 S.E.2d 627, 634 (quoting State

v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)), cert.

denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83 (1995).

“Prior crimes or acts by the defendant are deemed similar when

there   are    ‘some   unusual   facts     present   in   both      crimes    or

particularly    similar   acts   which    would   indicate   that    the     same

person committed both[.]’”       State v. Brockett, 185 N.C. App. 18,

22, 647 S.E.2d 628, 632 (quoting State v. Moore, 309 N.C. 102,

106, 305 S.E.2d 542, 545 (1983)), disc. review denied, 361 N.C.

697, 654 S.E.2d 483 (2007).        The similarities between the crime

charged and admissible “other bad act” evidence need not, however,

“rise to the level of the unique or bizarre.”          State v. Green, 321

N.C. 594, 604, 365 S.E.2d 587, 593, cert. denied, 488 U.S. 900,
                                         -13-
109 S. Ct. 247, 102 L. Ed. 2d 235 (1988).                       As a result, the

ultimate issue raised by Defendant’s challenge to the admission of

evidence concerning the 10 September 2011 incident hinges upon the

extent, if any, to which the 10 September and 11 September 2011

incidents were similar in nature and proximate in time.

      According to Defendant, the evidence provided by Mr. Castro

and Mr. Freeman concerning the 10 September 2011 robbery should

not have been admitted because the events that occurred at the

time of the 10 September and 11 September 2011 incidents were not

sufficiently similar.            In support of this contention, Defendant

notes that the two incidents occurred on opposite sides of town

and involved different sets of participants.                  In concluding that

evidence of the 10 September 2011 incident was admissible for the

purpose of showing a common plan, intent, and motive, however, the

trial     court   found   that    only   one    day   elapsed    between   the   two

incidents, that the two incidents occurred at approximately the

same time of day, that the geographic location at which the two

incidents occurred was not significantly dissimilar, and that the

two incidents involved the use of a similar modus operandi, under

which the perpetrators, who were both armed, robbed college-aged

individuals late on a weekend night in or around the parking area

in   an   apartment   complex      while   wearing     dark   clothing     on   their

bodies and bandannas on their faces and giving similar commands.
                                         -14-
As   a    result      of    the   substantial   similarities       between    the     10

September and 11 September 2011 incidents, we have no hesitation

in   concluding       that    the   trial   court   correctly      determined    that

evidence concerning the 10 September 2011 incident tended to show

the existence of a common scheme or plan involving Defendant and

Mr. Freeman and was, for that reason, relevant to an issue other

than Defendant’s propensity to engage in unlawful conduct.

         In   addition,      Defendant   contends    that,    even    if   testimony

concerning      the    10    September   2011   incident     was   relevant     for   a

purpose other than showing Defendant’s propensity to engage in

unlawful conduct, the “probative value” of evidence concerning

that     incident     was    “substantially     outweighed    by     the   danger     of

unfair prejudice” and should have been excluded pursuant to N.C.

Gen. Stat. § 8C-1, Rule 403.                A decision to admit or exclude

evidence pursuant to N.C. Gen. Stat. § 8C-1, Rule 403, is, as we

have already noted, committed to “the sound discretion of the

trial court, whose ruling will be reversed on appeal only when it

is shown that the ruling was so arbitrary that it could not have

resulted from a reasoned decision.”                 State v. Bidgood, 144 N.C.

App. 267, 272, 550 S.E.2d 198, 202, cert. denied, 354 N.C. 222,

554 S.E.2d 648 (2001).              In the course of considering Defendant’s

objection to the admission of the challenged evidence, the trial

court engaged in the balancing inquiry required by N.C. Gen. Stat.
                                            -15-
§ 8C-1, Rule 403, and specifically determined that the probative

value of the challenged evidence outweighed any risk of unfair

prejudice that would result from its admission.                          In addition, as

this    Court      has     clearly       held,     the      delivery     of    a    limiting

instruction like that quoted above mitigates the risk that the

jury will consider “other bad act evidence” for an impermissible

purpose      during      the    course     of    its     deliberations.            State     v.

Stevenson, 169 N.C. App. 797, 802, 611 S.E.2d 206, 210 (2005); see

also State v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74-75

(2002) (holding that the admission of “other bad act” evidence did

not unfairly prejudice the defendant for the purposes of N.C. Gen.

Stat. § 8C-1, Rule 403, given the delivery of an instruction

limiting the purposes for which the jury was entitled to consider

the evidence in question), cert. denied, 537 U.S. 1133, 123 S. Ct.

916,   154    L.   Ed.     2d    823   (2003).         In   view   of    the   significant

similarities        between        the    two      incidents       and     the      limiting

instruction delivered by the trial court, we see no basis for

concluding that the trial court abused its discretion by failing

to exclude the testimony of Mr. Castro and Mr. Freeman concerning

the 10 September 2011 robbery pursuant to N.C. Gen. Stat. § 8C-1,

Rule 403.       As a result, the trial court did not err by allowing

the    admission      of       evidence    concerning        the   10    September         2011

incident.
                                    -16-
             B. Sufficiency of the Evidence to Support
                    Multiple Conspiracy Charges

    Secondly, Defendant contends that the trial court erred by

denying his motion to dismiss one of the two conspiracy to commit

robbery   with   a   dangerous   weapon    charges   that   had   been   lodged

against him based upon insufficiency of the evidence.               In support

of this contention, Defendant argues that the State’s evidence

failed to show the existence of two distinct agreements to commit

robbery with a dangerous weapon and, instead, simply established

the existence of a single conspiracy.                As the State candidly

concedes, Defendant’s contention has merit.

    According        to   well-established     North     Carolina     law,   a

defendant’s motion to dismiss is properly denied if “‘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.’”                 State v.

Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting

State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).               In

conducting the required analysis, the “trial court must consider

the evidence in the light most favorable to the State, drawing all

reasonable inferences in the State’s favor.”           State v. Miller, 363

N.C. 96, 98, 678 S.E.2d 592, 594 (2009).               We review the trial

court’s denial of a motion to dismiss for insufficiency of the
                                           -17-
evidence using a de novo standard of review.                     State v. Smith, 186

N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

     “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).            When the evidence shows a series of

agreements     or     acts     constituting         a     single      conspiracy,    the

constitutional prohibition against double jeopardy bars the State

from prosecuting a defendant on multiple conspiracy indictments.

State v. Medlin, 86 N.C. App. 114, 121, 357 S.E.2d 174, 178 (1987)

(citing United States v. Kissel, 218 U.S. 601, 31 S. Ct. 124, 54

L. Ed. 1168 (1910)).            As a result, “when the State elects to

charge separate conspiracies, it must prove not only the existence

of at least two agreements but also that they were separate.”

State v. Griffin, 112 N.C. App. 838, 840, 437 S.E.2d 390, 392

(1993) (citing State v. Rozier, 69 N.C. App. 38, 53, 316 S.E.2d

893, 902, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984)).

Although there is no simple test for use in determining whether a

particular     case     involves       a    single        conspiracy       or   multiple

conspiracies,       “factors    such       as     time    intervals,       participants,

objectives,     and   number     of    meetings          all   must   be    considered.”

Rozier, 69 N.C. App at 52, 316 S.E.2d at 902.6

     6
         In addition to Rozier, Defendant cited State v. Dalton, 122
                                        -18-
      A careful review of the record evidence provides no basis for

a determination that Defendant and Mr. Freeman were involved in

multiple conspiracies at the time that they robbed Mr. Limbouris,

Mr. Yahyapour, and Mr. Johnson.                Instead, the record indicates

that,     given   their    financial     difficulties,      Defendant       and    Mr.

Freeman    decided   to    rob   individuals      returning       home    late    on   a

weekend night.       As a result, they approached the victims as they

returned to Mr. Limbouris’ apartment, robbed or attempted to rob

the three men at the same time, and escaped together.                    In light of

this evidence, we believe that, even when taken in the light most

favorable to the State, the record did not suffice to establish

the existence of more than one conspiracy.                  As a result, as the

State   concedes,    the     trial   court     erred   by   denying      Defendant’s

motion to dismiss one of the two conspiracy to commit robbery with

a dangerous weapon charges of which he was convicted, requiring us

to   vacate   the    trial    court’s    judgment      in   the    case    in     which

Defendant was sentenced for two counts of conspiracy to commit

robbery with a dangerous weapon, arrest judgment with respect to


N.C. App 666, 672-73, 471 S.E.2d 657, 662 (1996); State v. Medlin,
86 N.C. App. 114, 121-23, 357 S.E.2d 174, 178-79 (1987); and State
v. Tabron, 147 N.C. App. 303, 306-08, 556 S.E.2d 584, 586-87
(2001), disc. review improvidently granted, 356 N.C. 122, 564
S.E.2d 881 (2002), all of which held that the State’s evidence
only established the existence of a single conspiracy, in support
of his challenge to the denial of his dismissal motion concerning
the sufficiency of the evidence to support one of his two
conspiracy convictions.
                                         -19-
one of those convictions, and resentence Defendant based upon a

single     conviction      for    conspiracy       to    commit     robbery    with      a

dangerous weapon.7

                                  III. Conclusion

      Thus,   for   the    reasons      set    forth    above,     we   conclude   that

Defendant’s challenge to the trial court’s judgment in the case in

which Defendant was convicted of robbery with a dangerous weapon

and two counts of attempted robbery with a dangerous weapon and

his challenge to his convictions for two counts of conspiracy to

commit robbery with a dangerous weapon lack merit and that the

trial     court   erred    by    failing      to   grant     Defendant’s    motion      to

dismiss one of the two counts of conspiracy to commit robbery with

a   dangerous     weapon   for    insufficiency         of   the   evidence.       As    a

result,     the    trial    court’s        judgment      based     upon    Defendant’s

convictions for robbery with a dangerous weapon and two counts of

attempted robbery with a dangerous weapon should, and hereby does,

remain    undisturbed      and    the   trial      court’s     judgment    based   upon

Defendant’s conviction for two counts of conspiracy to commit

robbery with a dangerous weapon should be, and hereby is vacated;

judgment should be, and hereby is, arrested in one of the two
      7
      As a result of the fact that the State voluntarily dismissed
the conspiracy to commit robbery with a dangerous weapon charge
set forth in the indictment returned in File No. 11 CrS 221410,
judgment should be arrested in connection with the conspiracy to
commit robbery with a dangerous weapon charge set forth in the
second count of the indictment returned in File No. 12 CrS 11048.
                                      -20-
cases in which Defendant was convicted of conspiracy to commit

robbery with a dangerous weapon; and this case should be, and

hereby    is,   remanded   to   the    Wake    County      Superior   Court   for

resentencing based upon a single conviction, rather than multiple

convictions, for conspiracy to commit robbery with a dangerous

weapon.

    NO     ERROR   IN   PART,   VACATED       IN   PART,    AND   REMANDED    FOR

RESENTENCING IN PART.

    Judges GEER and STEPHENS concur.

    Report per Rule 30(e).
