An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1319
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              Nos. 11 CRS 223948, 223961-63,
                                              224370-71
SHERMAN DEMETRIUS FOWLKES



      Appeal by Defendant from judgments entered 8 February 2013

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

in the Court of Appeals 17 March 2014.


      Attorney General Roy Cooper, by Special                    Deputy   Attorney
      General Brenda Menard, for the State.

      Parish & Cooke, by James R. Parish, for Defendant.


      McGEE, Judge.



      Sherman Demetrius Fowlkes (“Defendant”) was indicted on 13

December 2011 for two counts of common law robbery, two counts

of robbery with a dangerous weapon, two counts of conspiracy to

commit robbery with a dangerous weapon, two counts of felony

breaking or entering a motor vehicle, two counts of misdemeanor

larceny,    and    larceny    of   a   firearm.        As   to   the   conspiracy
                                            -2-
charges, the indictment alleged that Defendant conspired with

Winston Washington (“Washington”), Blake Banks (“Banks”), Jerome

Jeffries (“Jeffries”), and Ambonisye Kelley (“Kelley”).

       Jeffries      testified      at     trial    that,      on    the       night    of    12

October 2011, Defendant called Jeffries to ask him to break into

some    vehicles      with   Defendant.            Jeffries        met    with      Defendant,

Washington,       Banks,     and     Kelley       at    Defendant’s            residence      at

approximately 10:30 or 11:00 p.m. and they left to break into

cars.    Jeffries was in a silver car the whole night.                               Defendant

drove a red car at times.             Jeffries testified that he broke into

a   vehicle     and    stole       items     that      were    later          identified      as

belonging to Michael Sink.               While in the silver car with Kelley

and Banks, Jeffries received a phone call from Defendant, asking

him to pick him up after Defendant had robbed someone.

       Ethan Smith (“Smith”) testified that he saw Defendant and

four or five other young African American males approaching him

in a parking lot at approximately midnight on the evening of 12

October 2011.         Smith testified that he was hit from behind and

that     his     belongings         were         stolen.            Kenneth          Frederick

(“Frederick”) testified that five or six males from two vehicles

robbed   him    at    gunpoint      in     the    parking     lot        of   his   apartment

complex sometime between 1:30 and 2:00 a.m. on 13 October 2011.

Frederick      testified     that    the     gun    used      in    the       robbery   was    a
                                   -3-
silver handgun.    He also testified that one of the vehicles was

white.

    Jeffries    also   testified   that,    at   some   point   during   the

evening, the occupants of the two vehicles met up in a parking

lot near N.C. State University.      Shortly thereafter, they robbed

John Noble (“Noble”), who was walking back to his car.               Noble

testified that he saw a group of five or six young males in a

parking lot.      Noble was struck in the head and fell to the

ground.     His belongings, including an iPhone and wallet, were

stolen.

    The group also robbed Alexander Stark (“Stark”), who was

riding his bicycle.     Stark testified that a red car pulled up

alongside him, and someone jumped out and ran toward him.                The

red car and a silver car drove in front of him, and several

people exited the vehicles.    Stark was forced to the ground, and

his wallet and backpack, which held a laptop, mouse, and cords,

were stolen.

    Between 3:00 and 3:30 a.m., Claude McMahan (“McMahan”) was

walking to work at a hotel on Hillsborough Street.                  He was

knocked out, and his bow tie, nametag, and money were stolen

from him.    Jeffries testified that he was present only for the

robberies of Noble and Stark.            He testified that he did not
                                     -4-
participate   in     the   robbery   that       occurred    after     the   group

separated.

    The group reconvened at Defendant’s residence.                      Jeffries

left Defendant’s residence at approximately 8:00 a.m. with two

others.    Defendant left in the silver car with the rest of the

group.    Police officers had tracked Noble’s phone to Defendant’s

residence, and were watching the residence when the group left.

Police officers stopped the cars, and Defendant was brought back

to his    residence.       Numerous items identified as having been

stolen were located at Defendant’s residence.                    A jury found

Defendant guilty of all charges.           Defendant appeals.

                           I. Standard of Review

    Each of Defendant’s arguments on appeal arises from the

trial court’s denial of Defendant’s motion to dismiss.                      Thus,

the same standard of review applies to each issue discussed in

this opinion.      “A trial court’s denial of a defendant’s motion

to dismiss due to insufficiency of the evidence is proper if the

State has presented ‘substantial evidence’ of each element of

the offense charged.”       State v. Tabron, 147 N.C. App. 303, 305,

556 S.E.2d 584, 585 (2001).

    “Substantial       evidence      is     relevant       evidence     that     a

reasonable    mind     might   accept      as    adequate       to    support    a

conclusion.     Substantial     evidence        may   consist    of   direct    or
                                            -5-
circumstantial evidence, or both.”                  Id. at 306, 556 S.E.2d at

585 (internal citation omitted).                   “When ruling on a motion to

dismiss, a court must consider the evidence in the light most

favorable    to     the    State,     and    the    State   is     entitled      to   all

reasonable inferences that can be drawn from the evidence.”                           Id.

at 306, 556 S.E.2d at 586.

  II. Separate Conspiracies to Commit Robbery with a Dangerous
                             Weapon

    Defendant first argues that the “trial court should arrest

judgment” on one count of conspiracy to commit robbery with a

dangerous weapon where “the evidence did not support two counts

of conspiracy to commit robbery with a dangerous weapon[.]”                             To

the extent that           this constitutes an argument that the trial

court    erred    in      denying     Defendant’s      motion       to    dismiss,      we

disagree.

    “In     North      Carolina,      multiple     overt    acts    arising      from   a

single    agreement        do   not    permit       prosecutions         for    multiple

conspiracies.”         Tabron, 147 N.C. App. at 306, 556 S.E.2d at 586

(internal quotation marks omitted).                  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.”       Id.    “[T]he essential question is the nature of the

agreement or agreements, but factors such as time intervals,
                                             -6-
participants, objectives, and number of meetings all must be

considered.”       Id.

       In State v. Roberts, 176 N.C. App. 159, 167, 625 S.E.2d

846, 852 (2006), this Court considered evidence showing that a

conspiracy was formed on the evening of 15 December 2002 when

the defendant agreed with two other individuals to rob someone.

This    Court     observed      that    there       “was    no     evidence   that    the

agreement formed on 15 December 2002 consisted of more than that

of robbing someone on that night.”                  Id.     “The mere fact that the

defendant was involved in a similar crime the next night does

not    indicate    the    two    crimes      were    committed       as   part   of   the

agreement made on 15 December 2002.”                  Id.     This Court held that,

“[v]iewing      the   evidence     in    the       light    most    favorable    to   the

State, evidence was presented allowing the jury to find that

[the] defendant was involved in two separate conspiracies.”                           Id.

       In the present case, the State presented testimony from

Jeffries.       At approximately 10:30 or 11:00 p.m. on 12 October

2011, Jeffries met with Defendant and four other individuals,

including    Banks,      Kelley,       and   Washington.           Jeffries   testified

that Defendant called him to arrange to break into cars that

night.     Defendant and the four other individuals came to pick up

Jeffries     from        his    grandmother’s         house        and    returned      to

Defendant’s residence before leaving to break into cars.
                                          -7-
       Jeffries      testified      that,       when     they     left     Defendant’s

residence to break into cars, the group split up and travelled

in two different vehicles, a red car and a silver car.                          Jeffries

got a phone       call from Defendant            during which Defendant told

Jeffries that Defendant           “was fixing to hit somebody.”                       When

Jeffries received that phone call, he was in the silver car with

Kelley and Banks.         Jeffries, Kelley, and Banks drove to another

neighborhood to wait for Defendant.

       After Defendant joined the occupants of the silver car,

they went to “go hit some more cars[.]”                          They stopped in a

parking lot near the campus of N.C. State University and met the

occupants of the red car.            The occupants of both cars talked as

a group.     Jeffries testified that he asked for money from a man

who walked by; the man said no; Jeffries asked again and handed

his gun to Defendant.            Defendant ran up to the man and robbed

him.    Approximately ten or fifteen minutes later, on the campus

of    N.C.   State    University,        Jeffries       and     Banks    saw    a    third

individual    chasing     a   man   on    a     bicycle.        Jeffries       and   Blake

grabbed a book bag from the man on the bicycle and ran back to

the silver car.

       After this robbery, Jeffries testified that the red car and

the silver car became separated.                Jeffries testified that he and

the    occupants     of   the    silver       car      participated      in     no   more
                                            -8-
robberies after this point.                 An hour and twenty minutes later,

all    the   occupants        of   the   two   cars      met    back    at    Defendant’s

residence.         Jeffries        testified      that   the    group    had    stolen   a

“couple GPSs, iPods, cell phones, laptops, [and] the gun.”                            They

talked about selling the items at a flea market.

       As in Roberts, there was no evidence that the agreement

formed earlier in the evening at Defendant’s residence consisted

of an agreement to commit anything other than the next single

robbery.     The evidence shows ample opportunity for the occupants

of the two cars to form separate agreements to commit robberies

and for the group as a whole to form a second agreement to

commit additional robberies in a parking lot near N.C. State

University.

       The mere fact that other robberies ensued does not indicate

that   all   the    robberies        were    committed     as    part    of    the   first

agreement.         In   the    present      case,    the   evidence      of    the   group

meeting at Defendant’s residence, combined with the evidence of

the group talking in a parking lot before robbing an individual

on foot, indicate more than one conspiracy.                            Furthermore, the

State presented evidence that the group split into two vehicles

and were separated for over an hour, during which subsequent

agreements could have been reached among the occupants of the

red car.      Considering this series of events and the variety of
                                        -9-
locations and participants, a rational juror could readily find

that the evidence established two separate conspiracies, rather

than one single conspiracy.         State v. Tirado, 358 N.C. 551, 578,

599 S.E.2d 515, 534 (2004).             Defendant has not shown error on

this basis.

  III. Sufficiency of the Evidence of Robbery with a Dangerous
 Weapon and Conspiracy to Commit Robbery with a Dangerous Weapon
                           of Frederick

       Defendant   next   argues    the   trial     court    erred   in    denying

Defendant’s motion to dismiss the charges of robbery                        with a

dangerous     weapon   and   conspiracy        to   commit    robbery      with    a

dangerous weapon of Frederick.                Defendant contends there was

insufficient evidence that Defendant or his co-defendants were

the perpetrators of the offenses.

       Frederick testified that he was coming home from work at

about 1:30 or 2:00 a.m. on 13 October 2011.                       He parked his

vehicle in the parking lot of his apartment complex and noticed

that two cars in front of him appeared to be looking for a

parking spot.      As Frederick walked toward his apartment, “five

or six guys jumped out[.]”              He testified that one individual

held a gun to the back of Frederick’s head and demanded money.

They took Frederick’s wallet, phone, keys, and black hoodie.

When   Frederick   told   them     he   had    no   money    on   him,    they    hit

Frederick and ran away.
                                                -10-
      Defendant contends that Frederick’s testimony regarding the

color of the vehicle of his assailants “tended to exculpate”

Defendant     “and      therefore          []    [D]efendant          is       entitled         to    a

dismissal    of       this    charge[.]”           However,         as    stated         above,       in

ruling on a motion to dismiss for insufficiency of the evidence,

the evidence is viewed in the light most favorable to the State.

Tabron,   147      N.C.       App.    at     306,      556    S.E.2d          at    586.         When

considered       in     conjunction         with       the     testimony            of     Jeffries

regarding    how       the    robberies         were    planned          and       executed,         the

foregoing evidence constitutes sufficient evidence to submit the

charges to the jury.                 The trial court did not err in denying

Defendant’s motion to dismiss on this basis.

IV. Sufficiency of the Evidence of Common Law Robbery of McMahan

      Defendant        next    argues      the      trial     court       erred       in    denying

Defendant’s motion to dismiss the charge of common law robbery

of   McMahan.          Defendant       concedes        that     the       evidence         “clearly

established Mr. McMahan was the victim of a common law robbery,”

but argues there was insufficient evidence that Defendant was a

perpetrator of this offense.

      Defendant contends that “the doctrine of recent possession

creates     an    inference          [Jeffries]         and     []        Kelley         were        the

thieves[,]”       but        raised     no       more        than        “a    conjecture             of

speculation” that Defendant was one of the offenders.                                      However,
                                       -11-
the     doctrine    of    recent   possession         requires    only     that   a

defendant’s possession “must be to the exclusion of all persons

not party to the crime.”           State v. Maines, 301 N.C. 669, 675,

273   S.E.2d    289,     294   (1981).         The   possession   “‘required      to

support an inference or presumption of guilt need not be a sole

possession but may be joint.’”                State v. Osborne, 149 N.C. App.

235, 240-41, 562 S.E.2d 528, 533, aff’d per curiam, 356 N.C.

424, 571 S.E.2d 584 (2002) (quoting Maines, 301 N.C. at 675, 273

S.E.2d at 294).

            For the inference to arise where more than
            one person has access to the property in
            question, the evidence must show the person
            accused of the theft had complete dominion,
            which might be shared with others, over the
            property    or    other     evidence    which
            sufficiently connects the accused person to
            the crime or a joint possession of co-
            conspirators or persons acting in concert in
            which case the possession of one criminal
            accomplice would be the possession of all.

Maines, 301 N.C. at 675, 273 S.E.2d at 294.

      McMahan      testified    that     he    was   on   Hillsborough     Street,

walking to work at about 3:00 a.m. on the morning of 13 October

2011.     As McMahan noticed a person across the street, another

person approached him from behind and asked where McMahan was

going.     McMahan was then “knocked unconscious[.]”                     Twenty or

thirty minutes later, he revived and walked to work.                        A co-

worker commented that it looked like McMahan had been beaten up
                                        -12-
and called the police for McMahan.                   McMahan reported to the

police that his bow tie, cellular phone, and about $55 in cash

had been stolen from him.

          A police officer testified that McMahan’s nametag and bow

tie    were    found    on   13    October    2011   in   the    silver       vehicle.

Jeffries testified that he was not present for the robbery of

McMahan on Hillsborough Street.              Jeffries did, however, testify

that all the individuals returned to Defendant’s residence at

about 3:00 a.m. on 13 October 2011 and carried all of the stolen

items into Defendant’s room.            It is reasonable to infer that the

occupants of the red vehicle committed the robbery of McMahan,

and that the items were later transferred to the silver car.

Considering the evidence in the light most favorable to the

State,      the   evidence    showed    a    joint   possession     of    McMahan’s

property by the individuals who acted together to rob McMahan.

The trial court did not err in denying Defendant’s motion to

dismiss these charges.

    V. Sufficiency of the Evidence of Felonious Breaking and
 Entering a Motor Vehicle, Misdemeanor Larceny, and Larceny of a
                         Firearm of Sink

          Defendant   next   argues    the   trial    court     erred    in    denying

Defendant’s motion to dismiss the charges of felonious breaking

and entering a motor vehicle, misdemeanor larceny, and larceny

of    a    firearm    of   Sink.      Defendant      again    contends    that     the
                                        -13-
doctrine of recent possession creates an inference Jeffries and

Kelley broke in and stole the property.

       However, as noted in the previous section, the doctrine of

recent possession requires only that a defendant’s possession

“must   be   to   the    exclusion   of   all      persons    not    party    to    the

crime.”        Maines,    301    N.C.     at    675,    273     S.E.2d       at    294.

Furthermore,      the    State    presented        sufficient        evidence      that

Defendant was a perpetrator of these offenses under the theory

of aiding and abetting.          See State v. Gaines, 345 N.C. 647, 676,

483 S.E.2d 396, 413 (1997).

       As previously discussed, Jeffries testified that Defendant

called him earlier on the night of 12 October 2011 to arrange

getting together and breaking into cars.                      Jeffries testified

that    he   subsequently    broke    into     a   vehicle     and    stole       items,

including a firearm.        Jeffries identified State’s Exhibit 3 as a

“Springfield,” which he stole from the vehicle.                      Defendant used

the firearm in a subsequent robbery close to the campus of N.C.

State University, and allowed Jeffries to keep the stolen items

in Defendant’s residence.            Sink testified that, on 13 October

2011, he noticed that his laptop, leather briefcase, firearm,

and knife had been stolen from his vehicle.                      Sink identified

State’s Exhibit 3 as his stolen firearm.
                                              -14-
      Considering the evidence in the light most favorable to the

State, the State presented sufficient evidence that Defendant

was a perpetrator of these offenses under a theory of aiding and

abetting.       The trial court did not err in denying Defendant’s

motion to dismiss on this basis.

    VI. Sufficiency of the Evidence of Felonious Breaking and
   Entering a Motor Vehicle and Misdemeanor Larceny of Keeling

      Defendant       next    argues      the    trial    court     erred    in   denying

Defendant’s motion to dismiss the charges of felonious breaking

and   entering       and    misdemeanor        larceny    of   Keeling.       Defendant

contends    there      “could      be    no    application     of   the     doctrine    of

possession      of    recent       stolen     property”    because     there      was   no

evidence Defendant knew Keeling’s iPod Touch “had been placed at

[Defendant’s] residence by another.”

      A police officer testified that all of the stolen property

was recovered from either Defendant’s bedroom or from one of the

two vehicles used by Defendant and his co-conspirators.                                 The

evidence discussed in the foregoing sections of this opinion

indicates Defendant and his co-conspirators had control over and

access     to   all        three    of   these       locations.        As    previously

discussed, the possession “required to support an inference or

presumption of guilt need not be a sole possession but may be

joint.”     Osborne, 149 N.C. App. at 240-41, 562 S.E.2d at 533.

Considering the evidence in the light most favorable to the
                                   -15-
State,   the   evidence   showed   a   joint   possession   of   Keeling’s

property by the individuals who acted together to rob Keeling.

    No error.

    Chief Judge MARTIN and Judge CALABRIA concur.

    Report per Rule 30(e).
