Chapter 24 Conspiracy and Accomplice Liability

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 24 Conspiracy and Accomplice Liability

A. Conspiracy

1. Definition

The common law offense of conspiracy in South Carolina has been codified, S.C. Code Ann. § 16-17-410. See State v. Crawford, 608 S.E.2d 886, 891 (S.C. Ct. App. 2005) (the statute is "declaratory of the common law definition of conspiracy"). The common law offense was classified as a misdemeanor while the statutory offense is classified as a felony. Conspiracy is an "'inchoate offense, and is a crime in and of itself.'" Id. at 892 (citations omitted).

Some statutes contain references to conspiracies to commit specific crimes, such as S.C. Code Ann. § 44-53-370(a)(1) which includes a provision prohibiting conspiracy, among other acts, to manufacture, distribute, or purchase, a controlled substance.

a. Common law conspiracy

"A conspiracy is a combination or agreement between two or more persons for the purpose of accomplishing a criminal or unlawful object, or of achieving by criminal or unlawful means an object that is neither criminal nor unlawful." State v. Sims, 661 S.E.2d 122, 126 (S.C. Ct. App. 2008) (internal quotations and citations omitted). Conspiracy to commit a crime does not merge with the completed offense. Crawford, 608 S.E.2d at 892. "Because the crime of conspiracy is the agreement itself, the State need not show any overt acts in furtherance of the common scheme or plan." State v. Larmand, 780 S.E.2d 892, 895 (S.C. 2015) (citation omitted).

b. Statutory conspiracy; S.C. Code Ann. § 16-17-410

The common law crime known as "conspiracy" is defined as a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means.
A person who commits the crime of conspiracy is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.
A person who is convicted of the crime of conspiracy must not be given a greater fine or sentence than he would receive if he carried out the unlawful act contemplated by the conspiracy and had been convicted of the unlawful act contemplated by the conspiracy or had he been convicted of the unlawful acts by which the conspiracy was to be carried out or effected.

2. Elements

a. A combination or agreement
b. Between two or more persons
c. For the purpose of accomplishing an unlawful object or
d. Accomplishing a lawful object by unlawful means.

3. Elements Defined

a. Combination or agreement

The agreement or combination is the "gravamen of conspiracy... An overt act in furtherance of the conspiracy is not necessary to prove the crime." State v. Crocker, 621 S.E.2d 890, 896 (S.C. Ct. App. 2005) (citation omitted).

To establish the existence of a conspiracy, "proof of an express agreement is not necessary, and direct evidence is not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties." State v. Larmand, 780 S.E.2d 892, 895 (S.C. 2015) (internal quotations and citation omitted).

Although no overt act is required once there is an agreement, "substantive crimes committed in furtherance of the conspiracy may constitute circumstantial evidence from which a jury could infer the existence of the conspiracy, its object, and scope." Id.

"Evidence of direct contact or an explicit agreement between the defendants need not be shown." Crocker, 621 S.E.2d at 896 (citation omitted). The evidence of such a mutual understanding may be sufficient if the State may show "each defendant knew or had reason to know of the...