Thе STATE, Respondent v. Ronald Moore WILSON and Teresa Ann Wilson, Appellants.
23910
Supreme Court of South Carolina
Decided July 19, 1993
Reh. Den. Aug. 17, 1993
433 S.E.2d 864 | 315 S.C. 289
TOAL, Justice
Heard Jan. 6, 1993
Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Cameron Currie, Asst. Attys. Gen. Harold M. Coombs, Jr. and Miller W. Shealy, Jr., Columbia, for respondent.
Appellants, Ronald Monroe Wilson and Teresa Ann Wilson, were convicted and sentenced for conspiring to traffic in cocaine, conspiring to traffic in marijuana, and trafficking in cocaine under an indictment returned by the State Grand Jury. We affirm the conspiracy counts and vacate the substantive trafficking conviction.
On December 12, 1989, the State Grand Jury indicted Apрellants and several other individuals in Count One of an indictment under
Count Six of the same indictment alleged Appellants and two other individuals in Richland County violated
Appellants made pretrial motions as to Counts One, Two, and Six, including a motion to quash the indictments which the trial court denied. Appellants were convicted of conspiring to traffic in cocaine, 28 grams or more but less than 100 grams. Appellants were convicted as charged on Counts Two and Six. Appellants appeal thеir convictions on all three counts.
SUBJECT MATTER JURISDICTION
Appellants first allege the trial court erred in denying their motion to quash Count Six on the ground that it contained insufficient information to establish subject matter jurisdiction of the State Grand Jury. We agree.
The State Grand Jury was created to improve the State‘s ability to “detect and eliminate” multicounty criminal activity.
EX POST FACTO PROHIBITIONS
The Constitutions of the United States and of South Carolina specifically prohibit the passage of ex post facto laws.
Appellants argue that the specific crime of trafficking in marijuana by conspiracy was not created until 1981, which was after the conspiracy alleged in Count Two came into existence. Therefore, they claim the count should have been quashed as it violated their ex post facto rights by punishing them for acts which were not prohibited at the time they were committed. We disagree. A conspiracy is a combination or agreement between two or more persons for the purpose of accomplishing a сriminal or unlawful object, or achieving by criminal or unlawful means an object that is neither criminal nor unlawful.
Appellants further point out the sentences for trafficking have been enhanced over the duration of this conspiracy. Therefore, they argue both Counts One and Two should have been quashed. We disagree for the reasons given аbove. Further, we point out an ex post facto sentence would not affect the validity of an indictment.
THE “SAVING CLAUSE”
Next, Appellants contend the court erred in permitting prosecution to proceed on Counts One and Two of the indictment in violation of the terms of the “saving clause” of Act No. 565, Section 2, 1988 S.C. Acts 4903 (the Act). The Act became effective July 1, 1988, and amends the punishment for enumerated drug offenses so as to raise and increase the penalties for trafficking in certain drugs. Section 2 of the Act provides:
All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this act takes effect are saved and may be consummated according to the law in force when they are commenced. This act may not be construed to affect any prosecution pending or begun before the effective date of this act.
Act No. 565, Section 2, 1988 S.C. Acts at 4908. As noted above, the conspiracies were alleged to have continued after the effective date of this statute. Accordingly, the Saving Clause is inapplicable.
SCOPE OF CONSPIRACY
Appellants argue that the trial court erred in allowing the State to add the quantity of drugs involved in various separate substantive offenses to determine the amount necessary to meet the statutory definition of conspir-
First, we point out the applicable statute as amended created statutory offenses fоr conspiring to sell, manufacture, cultivate, deliver, purchase, or bring into this state ten pounds or more of marijuana and ten grams or more of cocaine.
Again, Appellants’ argument misconstrues the purpose of admitting evidence of the separate substantive offenses in a conspiracy trial. The overt acts committed in furtherance of the conspiracy are not elements of the crime.1 Under South Carolina law, a conspiracy does not require overt acts. State v. Ferguson, 221 S.C. 300, 70 S.E. (2d) 355, cert. denied, 344 U.S. 830, 73 S.Ct. 35, 97 L.Ed. 646 (1952). The crime of сonspiracy is the agreement or mutual understanding. Ameker, supra. The substantive crimes committed in furtherance of the conspiracy constitute circumstantial evidence of the existence of the conspiracy, its object, and scope. State v. Amerson, 428 S.E. (2d) 871 (S.C. Sup. Ct. 1993). The State is entitled to prove “the whole history of the conspiracy, from its commencement to its conclusion,” as well as overt acts done in furtherance of the conspiracy since from those overt acts, “an inference may be drawn as to the existence and object of the conspiracy.” State v. Hightower, 221 S.C. 91, 69 S.E. (2d) 363 (1952). Further, the State is permitted great latitude in the introduction of circumstantial evidence. Id. Accordingly, we find no error in using evidence of the amount of drugs involved in various transactions as proof of the scope of the conspiracy for the purpose of estаblishing the elements of the crime of conspiring to traffic under
ADMISSION OF EVIDENCE ON FIREARMS
Last, Appellants allege the trial court erred in admitting testimony regarding their possession of firearms. Appellants contend the prejudicial effect of such testimony outweighed any probative value in that it raised the implication that they were “bad” persons and improperly placed their characters in issue.
In overruling Appellants’ objection, the trial court noted that illegal weapons generally are connected to illicit drug operations, and evidence thаt weapons were in the possession of Appellants could have probative value to show motive and intent. As we held in State v. Kimbrell, 294 S.C. 51, 362 S.E. (2d) 630 (1987), evidence of weapons may be relevant to show intent in a drug prosecution. Thus, the evidence was properly admitted.
For the foregoing reasons, we affirm Appellants’ convictions for conspiring to traffic in Counts One and Two. Appellants’ convictions and sentences on Count Six of the indictment for trafficking in cocaine are vacated for lack of subject matter jurisdiction.
Affirmed in part and vacated in part.
HARWELL, C.J., and CHANDLER and MOORE, JJ., concur.
FINNEY, J., dissents in separate opinion.
FINNEY, Justice (dissenting):
I respectfully dissent. In my opinion, thе majority unnecessarily expands the use of evidence of drug transactions in proving a conspiracy. I readily agree that evidence of the
Initially, it must be remembered that the appellants were indicted for conspiracy to traffic, not trafficking by conspiracy. Therefore the use at triаl of evidence of substantive offenses never should have had the intended purpose of proving the “crime of trafficking by conspiracy.” The majority‘s erroneous analysis is compounded by my belief that the trafficking statute did not create a new substantive offense, but simply established different levels of punishment depending on the amount of drugs involved.
According to the majority, the evidence of separate substantive offenses may also be admitted for the express purpose of aggregating sums of drugs for purposes of punishment. Certainly such evidence may be admitted, but the majority ignores the thrust of the appellants’ argument: whether the evidence of small individual transactions can be aggregated and admitted to prove that the agreement was to conspire in a large amount; and whether the trial judge erred in not grаnting appellants’ request for a special interrogatory.
Again, there is a wide range of evidence that may be admitted to establish the existence and scope of the conspiracy, and under appropriate situations aggregating the amount of drugs presented by the evidence is proper. However, in my view, the jury must be aware that evidence which sufficiently proves that a drug conspiracy existed, is not necessarily the same evidence which determines the statutorily mandated level for trafficking. For example, three witnesses could testify that, pursuant to an agreement between the defendant and a third party, 1) defendant purchased 10 pounds of marijuana, 2) defendant sold 10 pounds of marijuana, and 3) defendant possessed 10 pounds of marijuana. While this evidence establishes a conspiracy bеtween the parties, it does not establish that an agreement existed to traffic in 30 pounds of marijuana. Under the majority‘s analysis this situation could exist and be allowed to continue unfettered. While the jury has the latitude to judge and construct the evidence presented in any fashiоn they wish, they should not be allowed to float aimlessly. The special interrogatory moved for by appellants
For the foregoing reasons, I would hold that thе trial judge abused his discretion in not granting appellants’ motion for a special interrogatory, and that appellants’ conviction and sentences on Counts One and Two should be reversed and remanded.
TOAL, Justice