A. Elements

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

A. ELEMENTS

The common law crime of conspiracy is codified in section 16-17-140 of the South Carolina Code of Laws. According to this section, the elements of conspiracy are:

1. A combination, or agreement, between two or more persons

2. For the purpose of accomplishing

a. a criminal or unlawful object; or

b. an object neither criminal nor unlawful by criminal or unlawful means.¹

Thus, regarding the object of the conspiracy, the State must show "that either the object or the means agreed upon is an indictable offense in order to establish a criminal conspiracy. It is sufficient if the one or the other is unlawful."² The same elements of conspiracy apply to common law and drug-related conspiracies alike. However, in drug-related conspiracies, the criminal objective is a violation of the drug code, such as conspiracy to distribute marijuana. Regardless of the object of the conspiracy, the general principal of conspiracy law states that the conspiracy and the underlying substantive offense are separate crimes for which separate punishments may be imposed; conspiracy and the underlying offense do not merge.³

Conspiracy involves a wicked state of mind,⁴ which means the State must prove and the jury must find the defendant acted with knowledge of the criminal objective.⁵ Whether the defendant knew of the conspiracy is a jury question.⁶ Even if the State can prove a conspirator only has a slight connection to the conspiracy, this connection is sufficient to convict the conspirator of knowing participation in the conspiracy.⁷

Furthermore, "the law calls for an objective rather than subjective, test in determining the existence of a conspiracy."⁸ Regarding drug conspiracies, the court of appeals announced the following policy reason for using an objective standard:

The drug culture is not known for attracting paragons of virtue, as courts are often presented with "drug deals gone bad," and in any event, a subjective test favorable to a defendant would counter to the well-established standard of review for directed verdict motions [requiring that evidence must be viewed in the light most favorable to the State].⁹

1. The Agreement and Its Proof

"The gravamen of the offense of conspiracy is the agreement."¹⁰ Although an overt act may be evidence of the agreement, proof of an overt act in furtherance of the criminal objective is not an element of the crime of conspiracy, and therefore is not necessary.¹¹

The agreement need not be formal or express; it can be "a tacit, mutual understanding to knowingly and intentionally engage in criminal activity whether as a means or as an end."¹² "Evidence of direct contact or an explicit agreement between the defendants need not be shown."¹³ "What is needed is proof [the co-conspirators] intended to act together for their shared mutual benefit within the scope of the conspiracy charged."¹⁴ "It is sufficient to show that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe his own benefits were dependent upon the success of the entire venture."¹⁵ When the criminal objective cannot be committed without the cooperation of two persons, the failure of one to object to the wrongful act of the other may be sufficient to establish a tacit agreement.¹⁶ Once the parties agree to accomplish a criminal objective or a legal objective by criminal means, the crime of conspiracy is complete even though no further act has been committed.¹⁷

The agreement may be proved by any relevant competent evidence.¹⁸ "Proof of an express agreement is not necessary, and direct evidence is not essential."¹⁹ Many times an agreement can only be established by circumstantial evidence and the conduct of the parties, including proof of the overt acts of the alleged co-conspirators.²⁰ The State is given great latitude in introducing circumstantial evidence to prove the existence of a conspiracy,²¹ and the uncorroborated testimony of a co-conspirator is sufficient to sustain a conviction for conspiracy.²²

The overt acts may be several different substantive crimes committed in furtherance of the conspiracy, which "constitute circumstantial evidence of the existence of the conspiracy, its object, and scope."²³ The finder of fact is entitled to know the whole history of the conspiracy, which means the State may present evidence of all overt acts committed in furtherance of the conspiracy.²⁴ The commission of several substantive crimes does not establish several conspiracies if in aggregate they are committed in furtherance of a single criminal objective.²⁵ Practically, this means the State may establish a trafficking in a controlled substance conspiracy by proving several drug transactions in which the amounts involved, standing alone, would constitute several distributions but added together the amounts are sufficient to establish the threshold trafficking amount.²⁶ The question for the fact finder in this scenario is whether the distributors agreed to traffic in a controlled substance or whether the distributors acted independently.

Mere association with conspirators is insufficient to establish a defendant knowingly participated in a conspiracy because guilt is "individual and personal and . . . not a matter of mass application."²⁷ The State must prove the conspirators agreed to act in furtherance of "a shared, single criminal objective,"²⁸ which means the State must prove that more than two persons, who were similarly situated, shared similar or parallel goals.²⁹ For example, evidence of several persons separately intending to distribute drugs in a single geographic area does not establish a conspiracy.³⁰

In addition, "[p]roof of a buyer-seller relationship, without more, is inadequate to tie the [defendant] to a larger conspiracy; however, an agreement to distribute drugs can rationally be inferred from frequent contacts among the defendants and from their joint appearances at transactions and negotiations."³¹ Furthermore, several purchases from a single co-conspirator over a short period of time, during the time of the alleged conspiracy, totaling the threshold amount for trafficking may establish the scope of the conspiracy over that threshold amount.³² However, a single sale, without more, between members of an alleged conspiracy is not sufficient evidence to prove participation in the conspiracy charged.³³

State v. Mouzon³⁴ demonstrates the distinction between sharing similar or parallel goals and agreeing to engage in criminal activity. In Mouzon, three individuals approached a vehicle in a high drug neighborhood and offered to sell the driver a quantity of crack cocaine while the defendant stood some distance from the vehicle. At some point, the deal fell through, and the driver attempted to leave the area. One of the "bystanders" informed others on the street that the driver was trying to leave the area with the drugs without paying for them. At that point, the "bystanders" began throwing bottles and other items at the victim's car. Before he could leave the area, the victim was mortally shot, and the defendant was seen with a revolver in his hand. At trial, the defendant was acquitted of murder but was convicted for conspiracy to distribute crack cocaine. The court of appeals reversed the conspiracy conviction.³⁵

In affirming the decision of the court of appeals, the S.C. Supreme Court agreed that the State had failed to present sufficient evidence that the defendant participated in a conspiracy to distribute crack cocaine, and, thus, the trial judge erred in refusing to direct a verdict of acquittal on this count. The State failed to show the parties involved intended to act together for their shared benefit within the scope of a conspiracy to distribute crack cocaine. The State presented evidence that drug dealers in that area tried to "muscle each other out of the way to try to get up to the car to sell the drugs. Such evidence reveals not an agreement on a shared objective, but parallel and competing objectives."³⁶ The court stated:

In order to establish the logical nexus between the evidence (of participants throwing objects at vehicles trying to get away) and the conclusion (that this is a conspiracy to distribute crack cocaine), certain assumptions have to be made. Among these assumptions are that (1) the participants were, in throwing bottles and bricks, trying to extract payment for crack cocaine, and not simply trying to inflict injury (or effect street justice) upon those who have not paid for their drugs; and (2) all the participants were acting in concert, and not independently of one another. This argument assumes the very conclusion it is seeking to establish.³⁷

The S.C. Supreme Court concluded that, at best, the evidence showed an agreement between drug dealers to try to enforce drug payments and to protect drug transactions; however, the defendant was not charged with conspiracy to enforce drug payments. Thus, a directed verdict of acquittal should have been awarded the defendant.

2. Undercover Officers and Confidential Informants

A defendant cannot conspire to violate the drug code with a person only feigning to agree.³⁸ This means a defendant who independently distributes a controlled substance to a confidential informant or to an undercover officer cannot be convicted of conspiracy to distribute a controlled substance. However, if the defendant agrees with another individual to sell the controlled substance to the confidential informant or undercover officer, the defendant and his co-conspirator may be convicted of conspiracy, even though the feigner is involved in accomplishing the criminal objective. As the S.C. Supreme Court stated: "[P]articipation of an undercover agent 'in conjunction with more than one person to violate a...