State v. Barroso

Decision Date10 March 1995
Docket NumberNo. 2357,2357
Citation462 S.E.2d 862,320 S.C. 1
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Juan Adriano BARROSO, a/k/a "Juan Juan", Kenneth D. Jefferson, David Ray Matthews, Michael A. Poston, Grier Carter Copeland, James Alfred Hudson, a/k/a "Bimbo", Dennis M. Jefferson, John E. Watford, Jr., Herman McClain, Henry Christopher Grady, Ronald Mackey Amerson, Ronnie Ellison Moody, Derrick Randy Lloyd, James Michael Hill, James Napoleon Smith, William Van Jefferson, Bobby Bell, Garris Edwin Amerson, Ronald Thomas Rogers, Tommy L. McElveen, Freddie Stevens, Jr., Gene Edward Taylor, of whom David Ray Matthews, Michael A. Poston, John E. Watford, Jr., James Michael Hill, James Napoleon Smith, Bobby Bell and Tommy L. McElveen, Appellants. . Heard

Chief Atty. Daniel T. Stacey, Asst. Appellate Defenders Robert M. Pachak, Robert M. Dudek, and M. Anne Pearce, South Carolina Office of Appellate Defense, Columbia; J. Alex Stanton, IV; and Edward E. Saleeby, Jr., Hartsville, for appellants.

David Ray Matthews, Ridgeville, pro se.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Charles W. Gambrell, Jr., and Asst. Atty. Gen. Chris Gantt Hoffman, Columbia, for respondent.

SHAW, Judge.

In December 1990, the Statewide Grand Jury indicted 22 individuals, among them Appellants David Ray Matthews, John E. Watford, James Michael Hill, Bobby Bell, James Napoleon Smith, Michael Poston, and Tommy McElveen, for trafficking in cocaine in excess of 400 grams, in violation of S.C.Code Ann. § 44-53-370(e)(2)(e) (Supp.1993). The State tried together the defendants This case involves a massive drug trafficking conspiracy. These Appellants, along with fifteen other individuals, were indicted for violating S.C.Code Ann. § 44-53-370(e)(2)(e) (Supp.1993) in knowingly selling, delivering, or bringing into South Carolina, or in providing financial assistance or otherwise aiding, abetting, or conspiring to sell, deliver or bring into this State or knowingly being in actual or constructive possession of 400 grams or more of cocaine. The indictment alleged the trafficking occurred in Florence, Darlington and Lee Counties as well as the State of Florida from June 1, 1988 through October 31, 1990. There was abundant testimony the members of the conspiracy imported and distributed over 20 kilograms of cocaine in South Carolina over a seventeen month period. Eleven of the 22 individuals indicted pled guilty, seven were convicted of trafficking in 400 grams or more of cocaine, two were convicted of lesser charges and two were found not guilty.

                who did not plead guilty, and the seven individuals named above were convicted. 1  The seven Appellants appeal various aspects of their trial.  We affirm the convictions of Matthews, Watford, Hill, Bell, Poston, and McElveen and reverse the conviction of Smith
                
I. SUFFICIENCY OF THE EVIDENCE TO CONVICT

Appellants Smith, Bell, and McElveen contend the trial judge erred in failing to direct a verdict on the charge of trafficking in 400 grams or more of cocaine. They assert the evidence failed to show possession of 400 or more grams of cocaine and further failed to show participation in a conspiracy to traffic in that amount.

In ruling on a motion for a directed verdict, the trial judge is concerned with the existence of evidence. State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994). The trial court must view the evidence in the light most favorable to the State, and should submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993).

A conspiracy is a combination or agreement between 2 or more persons for the purpose of accomplishing a criminal or unlawful object, or achieving by criminal or unlawful means an object that is neither criminal nor unlawful. State v. Wilson, 315 S.C. 289, 433 S.E.2d 864 (1993). It may be proven by the specific overt acts done in furtherance of the conspiracy, but the crime is the agreement. Conspiracy is an ongoing or continuing crime. Id. The substantive crimes committed in furtherance of the conspiracy constitute circumstantial evidence of the existence of the conspiracy, its object, and scope. Id. Although under South Carolina law, a conspiracy does not require overt The government need not show direct contact or explicit agreement between the defendants. 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. United States v. Kenny, 645 F.2d 1323 (9th Cir.1981), cert denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). Once the existence of a conspiracy has been established, evidence of only a slight connection is necessary to convict a defendant of knowing participation in it. Id. The word "slight" properly modifies "connection," not "evidence." It is tied to that which is proved, not to the type of evidence or the burden of proof. United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977).

acts, where there is evidence of overt acts done in furtherance of the conspiracy, an inference may be drawn as to the existence and object of the conspiracy. Id.

The gravamen of the offense of conspiracy is the agreement or combination. State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). It is not enough that a group of people separately intend to distribute drugs in a single area, nor enough that their activities occasionally or sporadically place them in contact with each other. What is needed is proof they intended to act together for their shared mutual benefit within the scope of the conspiracy charged. Id. (quoting from United States v. Evans, 970 F.2d 663 (10th Cir.1992)). In reviewing the sufficiency of the evidence, we must exercise caution to ensure the proof sufficient for conviction is not obtained by piling inference upon inference. Id. Proof of a buyer--seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy, as is mere association with members of the conspiracy. An agreement to distribute drugs, however, can sometimes rationally be inferred from frequent contacts among the defendants and from their joint appearances at transactions and negotiations. Id.

As to appellant McElveen, the evidence shows, starting in October of 1989, he made a series of cocaine purchases from admitted co-conspirator Dennis Jefferson. At the first meeting between McElveen and Dennis Jefferson, McElveen purchased 5 ounces of cocaine. One to two weeks later, he purchased 5 more ounces. Approximately two weeks later, he purchased 4 more ounces. These purchases occurred over a six-week period in October and November 1989. In December, 1989, he purchased about 4 to 5 more ounces.

McElveen contends, at most, the evidence shows he possessed 5 ounces of cocaine at any one time. He argues the transactions were separate and distinct and there was no evidence he was a member of the conspiracy. We disagree.

The record evinces a series of transactions between McElveen and an admitted co-conspirator of this cocaine ring during the time frame and within the scope of the conspiracy alleged. The evidence shows McElveen purchased a minimum of 18 ounces, or 510.3 grams, from October to December, 1989. 2 Thus, there clearly is evidence McElveen was guilty of trafficking in over 400 grams of cocaine based on his possession of over 510 grams during the two month period. Further, the several individual purchases of cocaine, from the same admitted co-conspirator, on a regular basis, totalling over 400 grams, is sufficient evidence from which the jury could convict McElveen of conspiracy to traffic in 400 grams or more of cocaine. The jury could infer an agreement to distribute drugs from the frequent transactions between McElveen and the admitted co-conspirator. Further, the fact that McElveen We find no merit to McElveen's argument the transactions were separate and distinct such that, at most, the evidence showed he possessed 5 ounces, or 141.75 grams of cocaine, and evidence of the total amount could not be used to show a conspiracy to traffic in 400 grams or more. Under State v. Wilson, 315 S.C. 289, 433 S.E.2d 864 (1993), our Supreme Court found no error in using evidence of the amount of drugs involved in various transactions as proof of the scope of a conspiracy for purposes of establishing the elements of the crime of conspiring to traffic under S.C.Code Ann. § 44-53-370(e)(1) and (2) (Supp.1992). Accordingly, we find the evidence of several purchases from the same admitted co-conspirator over a short period of time, totalling over 400 grams, during the time period of the alleged conspiracy is proof of the scope of the conspiracy for purposes of establishing the crime of trafficking in over 400 grams of cocaine under S.C.Code Ann. § 44-53-370(e)(2)(e) (Supp.1993).

purchased in excess of 400 grams from Jefferson in a short period of time evinces McElveen's knowledge of the scope of the conspiracy.

As to appellant Bell, the evidence similarly reveals a series of cocaine purchases from admitted co-conspirator, Dennis Jefferson. Beginning in September of 1989, Bell purchased 1/2 ounce of cocaine from Jefferson and, thereafter, he purchased 3 to 4 ounces a week for a period of 5 to 6 weeks in October 1989. Therefore, at a minimum, Bell purchased 15.5 ounces, or 439.425 grams, of cocaine from Jefferson between September and November, 1989. Accordingly, the evidence shows Bell had possession of over 400 grams of cocaine during a two month period. Further, as with McElveen, the jury could infer an agreement to distribute drugs based on evidence of Bell's purchase of over 400 grams of cocaine from the...

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