This is a common law offense.
A person guilty of this offense(1) enters into an agreement with at least one other person(2) to commit an unlawful act(3) with intent that the agreement be carried out.
Unless a different classification is stated in a statute, conspiracy to commit a crime is punishable one class lower than the crime the defendant conspired to commit, except that conspiracy to commit a Class A or B1 felony is a Class B2 felony; conspiracy to commit a Class B2 felony is a Class C felony; conspiracy to commit a Class I felony is a Class 1 misdemeanor; and conspiracy to commit a Class 3 misdemeanor is a Class 3 misdemeanor. G.S. 14-2.4. An example of a statute providing for different punishment for conspiracy is G.S. 14-288.22, punishing conspiracy to commit injury to another by the use of a nuclear, biological, or chemical weapon of mass destruction as a Class B1 felony when the main offense is a Class A felony.
Some statutes provide that a conspiracy to commit a particular crime is punished like the main offense. See “Trafficking” in Chapter 27 (Drug Offenses) (conspiracy to commit drug trafficking is punished the same as the completed drug-trafficking offense); G.S. 14-118.12 (conspiracy to commit residential mortgage fraud is punished like the main offense).
Element (1). For a conspiracy to occur, there must be an agreement between the defendant and at least one other person. If the only other person involved is pretending to enter the agreement but has no intent to carry it out (such as an undercover officer), there is no conspiracy. State v. Horton, 275 N.C. 651 (1969) (in such a case, a solicitation may have occurred). The court of appeals has rejected the common law view that a husband and wife are one entity, holding instead that a criminal conspiracy can exist between them. State v. Stroud, 147 N.C. App. 549 (2001).
An agreement may take the form of written or spoken words, a mutual understanding, State v. Lyons, 102 N.C. App. 174 (1991), or a nonverbal act (for example, handing a knife to a co-conspirator in an assault would be a nonverbal act sufficient to show agreement), see State v. Brown, 67 N.C. App. 223 (1984). An agreement may be established by circumstantial evidence. State v. Brewton, 173 N.C. App. 323 (2005). However, a conspiracy may not be established by a mere suspicion or a mere relationship or association between the parties. Id.; State v. Benardello, 164 N.C. App. 708 (2004).
For cases in which there was sufficient evidence of an agreement, see State v. Boyd, ___ N.C. App. ___, 705 S.E.2d 774 (2011) (in a conspiracy to commit robbery case, the evidence was sufficient to establish a mutual, implied understanding between the defendant and another man to rob the victim; the other man drove the defendant to intercept the victim; the defendant wore a ski mask and had a gun; after the defendant hesitated to act, the other person assaulted the victim and took his money; and the two got into a car and departed); State v. Dubose, ___ N.C. App. ___, 702 S.E.2d 330 (2010) (the evidence was sufficient to show an agreement to discharge a firearm into occupied property; the defendant and his accomplices understood and impliedly agreed that the defendant would shoot the victim as they drove by, the victim was standing by the doors of a gym, and there was a substantial likelihood that bullets would enter or hit the gym); State v. Sanders, ___ N.C. App. ___, 701 S.E.2d 380 (2010) (words and actions of the defendant and others provided sufficient evidence of an implied agreement to assault the victim; the spontaneity of the plan did not defeat the conspiracy; a meeting of the minds can occur when a party accepts an offer by actions); State v. Crowe, 188 N.C. App. 765 (2008) (conspiracy to commit murder); State v. Robledo, 193 N.C. App. 521 (2008) (conspiracy to traffic in marijuana by possession); State v. Shelly, 181 N.C. App. 196 (2007) (conspiracy to commit first-degree murder); State v. Wiggins, 185 N.C. App. 376 (2007) (conspiracy to traffic in cocaine by possession); State v. Brewton, 173 N.C. App. 323 (2005) (conspiracy to commit murder); State v. Howell, 169 N.C. App. 741 (2005) (drug-trafficking conspiracy); State v. Baldwin, 161 N.C. App. 382 (2003) (same); State v. Batchelor, 157 N.C. App. 421 (2003) (same).
For a case in which the evidence was insufficient to establish an agreement to traffic in cocaine by transportation, see State v. Euceda-Valle, 182 N.C. App. 268 (2007) (the defendant was stopped while driving a vehicle with one passenger, cocaine was found in the vehicle’s trunk, both men were nervous, and the vehicle smelled of air freshener; there was no evidence of conversation between the two, no unusual movements or actions, no large amounts of cash, no possession of weapons, or anything else suggesting an agreement).
Element (2). The agreement must be to do something unlawful. State v. Wilson, 106 N.C. App. 342 (1992). Some old cases suggest that it could be something that is unlawful but not criminal (such as noncriminal fraud), R. Perkins & R. Boyce, Criminal Law 696 (3d ed. 1982), but conspiracy charges probably should be brought only against those who agree to commit criminal acts.
Element (3). Even if one of several parties to the agreement has no intent to carry out the crime, it is a conspiracy if at least two parties have the required intent. State v. Horton, 275 N.C. 651 (1969). If the State is able to identify and charge only one conspirator, trial and conviction of that single conspirator is not precluded; trial may proceed if the State can prove the existence of other conspirators. State v. Graham, 24 N.C. App. 591 (1975).
Charging issues. For a discussion of charging issues in connection with conspiracy offenses, see Jessica Smith, The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment, Admin. of Just. Bull. No. 2008/03 (UNC School of Government, July 2008) (online at www.sog.unc.edu/pubs/electronicversions/pdfs/aojb0803.pdf).
A conspiracy indictment must allege an agreement to do the unlawful act. State v. Billinger, ___ N.C. App. ___, 714 S.E.2d 201 (2011).
A conspiracy indictment need not specifically identify the defendant’s conspirator(s). State v. Gallimore, 272 N.C. 528, 533–35 (1968) (indictment was not defective for alleging merely that the defendant conspired with “others”; noting, however, that the better practice is to name the conspirators if their identities are known). However, if the conspiracy indictment does name specific individuals with whom the defendant is alleged to have conspired and the evidence shows that the defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find the defendant guilty based upon an agreement with persons not named in the indictment. State v. Pringle, ___ N.C. App. ___, 694 S.E.2d 505 (2010). One twist on this rule is that the jury instruction need not specifically name the individuals with whom the defendant was alleged to have conspired provided that the instruction comports with the material allegations in the indictment and the evidence at trial. Id. (the indictment alleged that the defendant conspired with Jimon Dollard and an unidentified male; the evidence showed that the defendant and two other men conspired to commit robbery; one of the other men was identified by testifying officers as Jimon Dollard; the third man evaded capture and was never identified; the trial court instructed the jury that it could find the defendant guilty if he conspired with “at least one other person;” although the instruction did not limit the conspiracy to those named in the indictment, it was in accord with the material allegations in the indictment and the evidence presented at trial, and thus there was no error).
Although indictments charging sale or delivery of a controlled substance must allege the name of the person to whom the sale or delivery was made when that person’s name is known or allege that the person’s name was unknown, when the charge is conspiracy to sell or deliver, the person with whom the defendant conspired to sell and deliver need not be named. State v. Lorenzo, 147 N.C. App. 728, 734–35 (2001) (conspiracy to traffic in marijuana by delivery).
Greater and lesser-included offenses. Conspiracy to possess heroin is a lesser-included offense of conspiracy to possess heroin with intent to sell and deliver. State v. Overton, 60 N.C. App. 1, 26 (1982).
Multiple convictions and punishments. A defendant who enters into a single agreement to commit multiple offenses may be convicted of only one count of conspiracy (of course, the defendant still may be convicted of any offenses actually committed pursuant to the conspiracy). State v. Wilson, 106 N.C. App. 342 (1992). Separate agreements to commit separate offenses may be prosecuted as separate conspiracy offenses, even if the crimes were committed together. State v. Gay, 334 N.C. 467 (1993); State v. Gibbs, 335 N.C. 1 (1993). The number of separate agreements, not the number of offenses the conspirators agree to commit, determines the number of conspiracy charges. Gibbs, 335 N.C. 1; State v. McLamb, 313 N.C. 572 (1985); State v. Dalton, 122 N.C. App. 666 (1996); State v. Smallwood, 112 N.C. App. 83 (1993); State v. Worthington, 84 N.C. App. 150 (1987). Factors such as time intervals between discussions, participants, objectives, and number of meetings also help determine the number of conspiracies. State v. Tirado, 358 N.C. 551 (2004); State v. Howell, 169 N.C. App. 741 (2005); State v. Brunson, 165 N.C. App. 667 (2004); Wilson, 106 N.C. App. 342. For sample cases on point, compare State v. Lawrence, ___ N.C. App. ___, 706 S.E.2d 822 (2011) (the evidence was insufficient to support two charges of conspiracy to commit armed robbery when, having failed to achieve the objective of the conspiracy on their first attempt, co-conspirators returned the next day to try again; only one agreement existed: in both attempts, the intended victim and participants were the same; the time interval between the two attempts was approximately thirty-six hours; on the second attempt the group did not agree to a new plan; and while the co-conspirators considered robbing a different victim, that only was a back-up plan; the court rejected the State’s argument that because the co-conspirators met after the first attempt, acquired additional materials, made slight modifications on how to execute their plan, and briefly considered robbing a different victim, they abandoned their first conspiracy and formed a second one), review allowed, 710 S.E.2d 6 (N.C. 2011); Brunson, 165 N.C. App. 667 (drug transactions were part of a single conspiracy); Howell, 169 N.C. App. 741 (only one conspiracy existed and it encompassed trafficking in heroin by transportation and trafficking in heroin by possession); State v. Tabron, 147 N.C. App. 303 (2001) (evidence was insufficient to support two convictions for conspiracy to commit robbery); and State v. Shelly, 176 N.C. App. 575 (2006) (in a double homicide case, the evidence supported only one conspiracy to commit murder), with Tirado, 358 N.C. 551 (evidence supported multiple separate conspiracies to commit several crimes against different victims); State v. Choppy, 141 N.C. App. 32 (2000) (evidence supported two convictions for conspiracy to commit first-degree murder, involving different victims); and State v. Roberts, 176 N.C. App. 159 (2006) (evidence supported two separate convictions for conspiracy to commit burglary and armed robbery, where crimes occurred on two sequential nights; there was no evidence that the first agreement encompassed the crimes that occurred on the second night).
Evidence of a conspiracy may be used to establish that a conspirator aided and abetted or acted in concert or to show that an absent conspirator was an accessory before the fact. State v. Small, 301 N.C. 407 (1980). Because the agreement necessary for a conspiracy is not an element of accessory before the fact to a felony, a defendant may be convicted of both conspiracy and the principal offense as an accessory before the fact if the defendant’s conduct satisfies the elements of both offenses. State v. Gallagher, 313 N.C. 132 (1985); State v. Looney, 294 N.C. 1 (1978). For a more detailed discussion of acting in concert, aiding and abetting, and accessory before the fact, see Chapter 3 (Participants in Crimes).
Relation to other offenses. A solicitation is complete when the request to commit the crime is made. State v. Benardello, 164 N.C. App. 708 (2004). Conspiracy, however, requires an agreement to do an unlawful act. Id. It is possible to solicit someone to commit a crime without the agreement required for a conspiracy ever being reached. Id. This would be the case, for example, when the defendant asks another to commit a crime but that person refuses to do so. In such a case, solicitation—not conspiracy—is the proper charge.
No need for an overt act. A conspiracy is complete once the agreement is made. Therefore, it is irrelevant whether the substantive crime ever is committed, State v. Morgan, 329 N.C. 654, 658 (1991), or whether an overt act occurred, State v. Gallimore, 272 N.C. 528, 532 (1968).
Jurisdiction. A person may be charged with this offense if any co-conspirator commits within the state an overt act in furtherance of the unlawful agreement, even if the conspiracy was entered into outside the state. State v. Goldberg, 261 N.C. 181, 203 (1964); State v. Drakeford, 104 N.C. App. 298 (1991). See generally “Lack of Jurisdiction” in Chapter 2 (Bars and Defenses).
Acquittal of co-conspirators. Generally, if all of the other alleged co-conspirators are acquitted, then the sole remaining defendant may not be convicted. State v. Littlejohn, 264 N.C. 571 (1965); State v. Raper, 204 N.C. 503 (1933). However, a defendant’s conspiracy conviction remains valid even if all alleged co-conspirators are found not guilty at a later trial. State v. Soles, 119 N.C. App. 375, 379–80 (1995) (distinguishing Raper, 204 N.C. 503). Additionally, a voluntary dismissal by the State is not the equivalent of an acquittal. State v. Robledo, 193 N.C. App. 521 (2008) (upholding conspiracy to traffic in marijuana by possession when the State took a voluntary dismissal of the conspiracy charge against the co-conspirator).
When one of the co-conspirators could not be convicted if acting alone. A person may be convicted of a conspiracy to commit a crime even though he or she could not be convicted of the crime if acting alone. For example, a person may be convicted of conspiracy to commit the crime of larceny by employee even though the person could not be convicted of that crime if acting alone because he or she is not an employee. State v. Saunders, 126 N.C. App. 524 (1997).
“Exploitation of a Disabled or Elder Adult” (Chapter 16)See the various drug offenses in Chapter 27 (Drug Offenses).Forgery of deeds, wills and certain instruments. G.S. 14-122.Conspiracy to break or enter jail with intent to injure prisoner. G.S. 14-221.Furnishing poison, deadly weapons, cartridges, ammunition or alcoholic beverages to inmates of charitable, mental or penal institutions or local confinement facilities; furnishing tobacco products or mobile phones to inmates. G.S. 14-258.1.
Circumstantial evidence can establish the scope of the agreement. State v. Fish, 229 N.C. App. 584, 591–92 (2013) (evidence that the defendant and an accomplice stole property valued at more than $1,000 established that they had an agreement to do so).
For a case where there was sufficient evidence of a conspiracy to possess a stolen pistol, see State v. Greene, ___ N.C. App. ___, 795 S.E.2d 815, 821 (2017) (after the defendant made a phone call from jail to his alleged co-conspirator, the co-conspirator showed up at the residence near where the pistol was found and admitted to “working with” the defendant).
For other cases where there was sufficient evidence of an agreement to commit robbery, see State v. Young, ___ N.C. App. ___, 790 S.E.2d 182, 187–88 (2016) (circumstantial evidence established that the defendant and his accomplices agreed to rob a second victim; the accomplices agreed to take the first victim’s car and then commit other unlawful acts, with defendant wielding the shotgun and another person driving the vehicle; the acts against the second victim occurred within minutes of and very near the acts against the first); State v. Oliphant, 228 N.C. App. 692, 704 (2013) (implied agreement to commit armed robbery where the defendants approached the victim from behind and one held a gun while the other reached for the victim’s cell phone); and State v. Rogers, 227 N.C. App. 617, 623–24 (2013) (conspiracy to commit armed robbery; implied understanding to use a dangerous weapon).
For a case where there was insufficient evidence of an agreement to commit robbery, see State v. Fleming, ___ N.C. App. ___, 786 S.E.2d 760, 766 (2016) (the “mere fact that the crime the defendant allegedly conspired with others to commit took place does not, without more, prove the existence of a conspiracy”).
For other cases where the evidence was insufficient to establish an agreement to engage in drug offenses, see State v. Velazquez-Perez, 233 N.C. App. 585, 593 (2014) (among other things, there was no evidence that the driver of a vehicle owned by an alleged co-conspirator knew about drugs hidden in the vehicle), and State v. McClaude, 237 N.C. App. 350, 353–54 (2014) (following Euceda-Valle, where the evidence showed only that the drugs were found in a car driven by another person in which the defendant was a passenger).
For cases where the evidence was sufficient to show an agreement to engage in drug offenses, see State v. Winkler, 368 N.C. 572, 581–83 (2015) (rejecting the defendant’s argument that the evidence showed only “the mere existence of a relationship between the two individuals”); State v. Glisson, ___ N.C. App. ___, 796 S.E.2d 124, 128 (2017) (sufficient evidence to establish that the defendant conspired with an accomplice to traffic in opium where, among other things, the defendant brought the accomplice to all three controlled buys, the drugs were maintained in the same vehicle as the accomplice, and the defendant exchanged the drugs and counted the money in front of the accomplice); State v. Garrett, ___ N.C. App. ___, 783 S.E.2d 780, 785 (2016) (sufficient evidence of conspiracy to sell methamphetamine where the incident arose out of a controlled buy involving the defendant and two accomplices); State v. Torres-Gonzalez, 227 N.C. App. 188, 195 (2013) (conspiracy to traffic in cocaine by possession where the defendant and an accomplice worked together to complete a drug sale); and State v. Davis, 236 N.C. App. 376, 385 (2014) (implied agreement to engage in drug trafficking by manufacture where the defendant was present at the scene and aware that his accomplice was involved in producing methamphetamine and the defendant was involved in the manufacturing process; “Where two subjects are involved together in the manufacture of methamphetamine and the methamphetamine recovered is enough to sustain trafficking charges, we hold the evidence sufficient to infer an implied agreement between the subjects to traffic in methamphetamine by manufacture and withstand a motion to dismiss.”).
For cases where the evidence supported the existence of multiple separate conspiracies, see State v. Stimpson, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 7, 2017) (holding, over a dissent, that the evidence supported five separate offenses of conspiracy to commit armed robbery arising from five separate incidents; concluding, in part, that the random nature and happenstance of the robberies did not indicate a single conspiracy and that the victims and crimes committed arose at random and by pure opportunity); Glisson, ___ N.C. App. at ___, 796 S.E.2d at 129 (the evidence supported the existence of multiple separate conspiracies to traffic in controlled substances; noting the time between the transactions and that each was initiated by an informant or a detective).
Due process is not violated when the trial court puts the burden on the defendant to prove withdrawal from the conspiracy. Smith v. United States, 568 U.S. 106, 110 (2013).
Furnishing poison, controlled substances, deadly weapons, cartridges, ammunition, or alcoholic beverages to inmates; furnishing tobacco products or mobile phones to inmates; furnishing mobile phones to delinquent juveniles. G.S. 14-258.1.