F. Conspiracy and Accomplice Liability

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

F. CONSPIRACY AND ACCOMPLICE LIABILITY

As with conspiracy, most criminal offenses set forth in the drug code include the act of aiding and abetting.²⁶⁷ "Under the 'hand of one is the hand of all' theory, one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose."²⁶⁸ Hence, "[w]hen two or more persons aid, abet and encourage each other in the commission of a crime, all being present, each is guilty as a principal."²⁶⁹ Accomplice or accessory liability includes aiding, abetting, counseling, or encouraging another person to engage in criminal activity.²⁷⁰ Thus, to convict a defendant as an accomplice, the State must prove that:

1. The defendant personally committed the crime or was present at the scene of the crime; and

2. The defendant intentionally, or through a common design, aided, abetted, or assisted in the commission of that crime through some overt act.²⁷¹

A defendant may be convicted as an accomplice even if he is indicted for the principal offense.²⁷² Furthermore, a defendant may be convicted as an accessory even where the principal is acquitted of the criminal offense or where the identity of the principal is unknown.²⁷³ The key to conviction is the State's production of sufficient evidence that some principal committed the criminal offense with the encouragement, urging, or assistance of the accomplice.²⁷⁴ This rule applies whether the principal and accomplice are tried separately or together. "In order to be guilty as an aider or abettor, the participant must be chargeable with knowledge of the principal's criminal conduct."²⁷⁵ In addition, "[m]ere presence at the scene of a crime is insufficient to convict one as a principal on the theory of aiding and abetting."²⁷⁶

Unlike a controlled substance conspiracy, which provides a lesser sentence than the substantive offense, if the defendant is convicted as an accessory in the commission of a felony, the defendant must be sentenced the same as the principal.²⁷⁷ Likewise, the provisions of the drug code set forth the same penalties for those who commit the act and those who aid or abet regardless of whether the offense is a misdemeanor or a felony. For example, a person who is an accessory to the distribution of crack cocaine will be sentenced the same as the person who actually distributes the crack cocaine.²⁷⁸

Conspiracy and accessory are separate crimes.²⁷⁹ Conspiracy...