State v. Gill

Decision Date23 June 2003
Docket NumberNo. 3656.,3656.
Citation355 S.C. 234,584 S.E.2d 432
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Carlos Miguel GILL, Appellant.

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.

PER CURIAM:

Carlos M. Gill appeals his convictions for distribution of crack cocaine, distribution of crack cocaine within proximity of a school, and conspiracy to distribute crack cocaine. He argues the trial court (1) lacked subject matter jurisdiction on two of the charges because the indictments failed to allege that he "knowingly" committed the offenses and (2) erred in finding he waived his right to have an attorney represent him at trial. We affirm.

BACKGROUND

Undercover police officer William Graham, accompanied by Cora Lee Neil, an acquaintance of Gill's, made a controlled purchase of $40 worth of crack cocaine from Gill. The purchase was video and audio taped and occurred approximately 670 feet from an elementary school. Gill was not represented by counsel at trial. He was convicted as charged, sentenced to twenty-five years imprisonment and a $50,000 fine for distribution of crack cocaine; fifteen years and a $10,000 fine for distribution within proximity of a school; and five years for conspiracy, with all sentences to run concurrently.

LAW/ANALYSIS
I. SUBJECT MATTER JURISDICTION

Gill argues the trial court lacked subject matter jurisdiction to try him on the charges of distribution and distribution within the proximity of a school because the indictments failed to allege he "knowingly" committed the acts. We disagree.

Gill's indictment for distribution of crack cocaine alleged that he "did distribute, dispense, or deliver a quantity of crack cocaine ... or did otherwise aid, abet, attempt, or conspire to distribute, dispense, or deliver crack cocaine, all in violation of Section 44-53-375...." Section 44-53-375 of the South Carolina Code provides that "[a] person who manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with intent to distribute, dispense, or deliver ice, crank, or crack cocaine, in violation of the provisions of Section 44-53-370, is guilty of a felony." S.C.Code Ann. § 44-53-375(B) (2002).

The indictment for distribution within proximity of a school provided that Gill "did unlawfully distribute a controlled substance,... to wit: crack cocaine, within a one-half mile radius of the grounds of York One Academy, a public school located in the city of York, South Carolina, ... all in violation of Section 44-53-445...." Section 44-53-445 of the South Carolina Code provides it is a separate criminal offense to "distribute, sell, purchase, manufacture, or to unlawfully possess with intent to distribute, a controlled substance while in, on, or within a one-half mile radius of the grounds of a public or private elementary, middle, or secondary school...." S.C.Code Ann. § 44-53-445(A) (2002).

Questions regarding subject matter jurisdiction may be raised at any time. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998); State v. Williams, 346 S.C. 424, 431, 552 S.E.2d 54, 58 (Ct.App.2001). A trial court acquires subject matter jurisdiction over a criminal matter where "there is an indictment which sufficiently states the offense, the defendant waives presentment, or the offense is a lesser included offense of the crime charged in the indictment." State v. Primus, 349 S.C. 576, 579, 564 S.E.2d 103, 105 (2002); State v. Lynch, 344 S.C. 635, 639, 545 S.E.2d 511, 513 (2001); Carter, 329 S.C. at 362, 495 S.E.2d at 777.

An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon. The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995) (citations omitted); Williams, 346 S.C. at 431-32, 552 S.E.2d at 58; S.C.Code Ann. § 17-19-20 (2003).

The key question in the underlying case is whether the mens rea element of the crime of distribution of crack cocaine must be alleged in the indictment to confer subject matter jurisdiction. In State v. Ferguson, 302 S.C. 269, 395 S.E.2d 182 (1990), our supreme court considered whether a trial court erred in charging the jury regarding the mental state necessary to be proved for conviction of certain crimes. The Ferguson court noted that the required mental state to be proven by the State on a certain offense may include purpose or knowledge. Id. at 271, 395 S.E.2d at 183. The court then noted the legislature could make an act or omission a crime "regardless of fault," or could make a particular crime a strict liability crime. Id. at 271-72, 395 S.E.2d at 183. Reviewing the trial court's jury instructions regarding the mental element of distribution of cocaine and the legislative intent behind section 44-53-370, the court held distribution was not a strict liability crime and the State was required to prove the defendant was at least criminally negligent. Id. at 272-73, 395 S.E.2d at 184.

Two recent cases have also discussed the elements of distribution of crack cocaine. In State v. Watts, 321 S.C. 158, 467 S.E.2d 272 (Ct.App.1996), this court reviewed whether a variance in the proof and the allegations in an indictment for distribution of crack cocaine warranted a directed verdict in favor of the defendant. We noted as follows:

The essential elements of the offense of distribution of crack cocaine which the court charged the jury the State was required to prove were: (1) Watts had actual control, or the right to exercise control over the crack cocaine; (2) he knowingly distributed or delivered the crack cocaine; (3) the substance upon analysis was, in fact, crack cocaine; and (4) the offense occurred in Greenwood County. See S.C.Code Ann. § 44-53-375 (Supp.1994). The charge of distribution of crack cocaine within one-half mile of a school required the same proof with an additional element that the distribution occurred within a one-half mile radius of the grounds of an elementary, middle, or secondary school. See S.C.Code Ann. § 44-53-445 (Supp.1994).

Id. at 168, 467 S.E.2d at 278. Because the indictment in Watts listed the wrong accomplice, but the State submitted proof regarding the correct accomplice and all elements of the crime, we held there was no material variance, the listed codefendant was mere surplusage, and the defendant was not entitled to a directed verdict. Id.

More recently in Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001), our state supreme court addressed whether the trial court lacked subject matter jurisdiction over a charge of distribution within proximity of a school where the indictment alleged the distribution occurred near a daycare center. The court noted:

To prove distribution of crack cocaine under [S.C.Code Ann. § 44-53-445 (Supp.1992) ], the State must establish the following elements: (1) the defendant had actual control, or the right to exercise control over the crack cocaine; (2) he knowingly distributed or delivered the crack cocaine; (3) the substance upon analysis was, in fact, crack cocaine; and (4) the distribution occurred within a one-half mile radius of the grounds of an elementary, middle, secondary or vocational school; public playground or park; or college or university. See id.; State v. Watts, 321 S.C. 158, 168, 467 S.E.2d 272, 278 (Ct.App.1996)

.

Id. at 347-48, 540 S.E.2d at 849. Because daycare centers were not listed in the statute by the legislature, our supreme court held the indictment failed to include a necessary element of the offense and the trial court did not have jurisdiction over the matter. Id. at 349-50, 540 S.E.2d at 850.

In the underlying case, Gill's indictment for distribution alleged that on February 1, 2000, he distributed crack cocaine or aided, abetted, attempted or conspired to distribute crack cocaine in violation of Section 44-53-375. His indictment for the proximity charge alleged Gill distributed crack cocaine within a one-half mile radius of York One Academy, a South Carolina public school, in violation of Section 44-53-445 on the same date. Both indictments listed the elements of the crime found in the respective statutes. The indictments sufficiently informed Gill he had to defend against charges of distribution of crack cocaine and distribution near York One Academy on February 1, 2000. Clearly, the indictments were sufficient to inform Gill about the charges he faced and what he must defend against.

With regard to Gill's allegations that the indictments must allege that he "knowingly" distributed the drugs, we note neither Section 44-53-375 nor Section 44-53-445 includes "knowingly" as an element of the crime. Although Ferguson, Watts, and Brown list "knowingly" as an element the State must prove for the crime of distribution, none of these cases addressed whether the "knowingly" element must be alleged in the indictment in order to convey subject matter jurisdiction. Upon closer scrutiny, we find they can be read to mean that "knowingly" is merely an element the State must prove to obtain a conviction. If the General Assembly intended a mens rea element in the crimes of distribution and...

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