State v. Condrey, 3471.

• Decision Date: 01 April 2002
• Docket Number: No. 3471.,3471.
• Citation: 349 S.C. 184,562 S.E.2d 320
• Parties: The STATE, Respondent, v. Richard CONDREY, Appellant.
• Court: South Carolina Court of Appeals

349 S.C. 184

562 S.E.2d 320

The STATE, Respondent, v. Richard CONDREY, Appellant.

No. 3471.

Court of Appeals of South Carolina.

Heard March 7, 2002.

Decided April 1, 2002.

Assistant Appellate Defender Katherine Carruth Link, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.

ANDERSON, J.:

Richard Condrey was charged with two counts of criminal conspiracy, two counts of grand larceny, and one count of obtaining goods by false pretenses. He was convicted of one count of grand larceny and one count of criminal conspiracy. Condrey was acquitted of the remaining charges. He was sentenced to ten years for grand larceny and five years for criminal conspiracy, with both sentences suspended upon the service of three years, plus five years probation. Condrey appeals. We affirm.

FACTS/PROCEDURAL BACKGROUND

In the summer of 1999, Jay Manning, director of operations for Shoe Show based in Concord, North Carolina, received a report that some of his company's shoes were being sold at a flea market in South Carolina. He determined the shoes from the flea market came from a Shoe Show truck driven by Steve West. Manning concluded West was stealing shoes from the company and pinpointed a truck stop on Highway 901 in York County where West frequently stopped.

Manning hired an investigator, John Walters, to document West's actions. On the afternoon of July 8, 1999, Walters was at the truck stop and observed West arrive in his tractor trailer truck around 5:00 p.m. A short time after West parked his vehicle, Condrey drove up in a truck and parked behind West's truck. West and Condrey talked. Thereafter, the two men unloaded several cases of shoes from the tractor trailer onto Condrey's truck. Walters videotaped the transfer of the shoes. West and Condrey had another conversation after the shoes were loaded onto Condrey's truck. The men drove off in their respective vehicles and Walters followed Condrey. Walters opined that Condrey realized he was being followed and attempted to evade Walters.

Manning later confronted West, who initially denied stealing the shoes, but eventually confessed. According to Detective Jerry Hoffman of the York County Sheriff's Department, West identified Condrey as his "partner." West was charged with breach of trust. He pled guilty and received probation. He agreed to testify against Condrey.

West testified he had known Condrey for "most of [his] life." Condrey knew West delivered shoes. West declared Condrey asked, "Big boy, can you get us some shoes?" West agreed to get the shoes for Condrey because he needed money to buy medicine for his mother. Condrey offered to pay West $50 a case. Each case contained ten to twelve boxes of shoes. When West had "leftovers" from deliveries, he put them aside and saved them. The two men had arranged that when West had the shoes and was in the area, he would page Condrey, who would meet West at the truck stop, the prearranged location.

In June 1999, West sold Condrey five cases of shoes at the agreed price of $50 per case. Condrey informed West he was going to sell the shoes at a flea market. On July 8, West met Condrey and sold him nine cases of shoes. On this occasion, West wanted more money. Condrey agreed to pay $100 per case. West stated he told Condrey that he was stealing the shoes from the company. Tammy Keen, a vendor at the same flea market as Condrey, saw Condrey selling the shoes at the flea market in June. Condrey told her he was buying the shoes off an "eighteen wheeler" and that the shoes were "like store returns." Keen bought a total of 229 boxes of shoes from Condrey during two separate occasions at $20 a pair.

ISSUES

I. Did the trial court err in refusing to grant a directed verdict as to the charges of grand larceny and criminal conspiracy?

II. Did the trial court err in charging the "hand of one is the hand of all" doctrine?

III. Did the trial court err in not allowing defense counsel, in closing argument, to discuss the offense of receiving stolen goods or to argue that the State had charged Condrey with the wrong offense?

LAW/ANALYSIS

I. Directed Verdict

At the close of the State's case, Condrey moved for a directed verdict on all the offenses charged. He argued the State failed to produce any evidence he was a participant in the crimes of grand larceny and criminal conspiracy. The trial judge denied the motions.

When ruling on a motion for a directed verdict, the trial court is concerned with the existence or non-existence of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991); State v. Green, 327 S.C. 581, 491 S.E.2d 263 (Ct.App.1997). On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State. State v. Rowell, 326 S.C. 313, 487 S.E.2d 185 (1997); State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this Court must find the case was properly submitted to the jury. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998); State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997).

A. Larceny

Condrey was indicted for grand larceny. Larceny of goods, chattels, instruments, or other personalty valued in excess of one thousand dollars is grand larceny. S.C.Code Ann. § 16-13-30(B) (Supp.2001). Larceny is the felonious taking and carrying away of the goods of another against the owner's will or without his consent. State v. Keith, 283 S.C. 597, 325 S.E.2d 325 (1985); State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979). To make out the offense of larceny, there must be a felonious purpose. State v. Williams, 237 S.C. 252, 116 S.E.2d 858 (1960). The taking must be done animo furandi—with a view of depriving the true owner of his property and converting it to the use of the offender. Id.

Viewing the evidence in the light most favorable to the State, there was evidence that Condrey planned with West to take the shoes. Condrey asked West if he could get some shoes and he met West at the truck stop to pick up the shoes. He took the shoes and converted them to his own use by selling them to Keen. West testified that Condrey was aware the shoes were stolen. We find the case was properly submitted to the jury, as the evidence reasonably tended to prove Condrey's guilt as to the charge of grand larceny.

B. Criminal Conspiracy

A "conspiracy" is statutorily defined as "a combination between two or more persons for the purpose of accomplishing an unlawful object or a lawful object by unlawful means." S.C.Code Ann. § 16-17-410 (Supp.2001). In State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963), the Supreme Court stated the law of conspiracy with exactitude:

The foregoing statute [the predecessor to § 16-17-410] is declaratory of the common law definition of conspiracy. State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735 [1961], and authorities cited therein. It need not be shown 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. State v. Davis, 88 S.C. 229, 70 S.E. 811 [1911]. Nor need a formal or express agreement be established. A tacit, mutual understanding, resulting in the willful and intentional adoption of a common design by two or more persons is sufficient, provided the common purpose is to do an unlawful act either as a means or an end. 15 C.J.S. Conspiracy § 40. Although the offense of conspiracy may be complete without proof of overt acts, such "acts may nevertheless be shown, since from them an inference may be drawn as to the existence and object of the conspiracy. It sometimes happens that the conspiracy can be proved in no other way." State v. Hightower, 221 S.C. 91, 69 S.E.2d 363 [1952]. "To establish sufficiently the existence of the 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. The circumstantial evidence and the conduct of the parties may consist of concert of action." 15 C.J.S. Conspiracy § 93a.

Id. at 274, 133 S.E.2d at 805.

An excellent academic review of the law of conspiracy is articulated in State v. Amerson, 311 S.C. 316, 428 S.E.2d 871 (1993):

Generally, the agreement, which is the essence of the conspiracy, is proven by various overt acts committed in furtherance of the conspiracy. Therefore, a single conspiracy may be established by completely different aggregations of proof so that there appears to be several conspiracies. United States v. Ragins, 840 F.2d 1184 (4th Cir.1988). Accordingly, a multi-pronged flexible "totality of the circumstances" test is applied to determine whether there were two conspiracies or merely one. Id. The factors considered are: (1) the time periods covered by the alleged conspiracies; (2) the places where the conspiracies are alleged to have occurred; (3) the persons charged as conspirators; (4) the overt acts alleged to have been committed in furtherance of the conspiracies, or any other descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted; and (5) the substantive statutes alleged to have been violated. Id. This test was adopted by this Court in [State v.] Dasher, [278 S.C. 454, 298 S.E.2d 215 (1982)].

Id. at 319-20, 428 S.E.2d at 873.

It is axiomatic that a conspiracy may be proved by direct or circumstantial evidence or by circumstantial evidence alone. State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989). As State v. Miller, 223 S.C. 128, ...