State v. Gosnell

• Decision Date: 17 July 2000
• Docket Number: No. 3219.,3219.
• Citation: 341 S.C. 627,535 S.E.2d 453
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Virgil GOSNELL, Appellant.

341 S.C. 627

535 S.E.2d 453

The STATE, Respondent, v. Virgil GOSNELL, Appellant.

No. 3219.

Court of Appeals of South Carolina.

Heard December 9, 1999.

Decided July 17, 2000.

Assistant Appellate Defender Melody J. Brown, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon; Chief Jonathan E. Ozmint and Assistant Attorney General Anne Hunter Young, both of State Grand Jury, all of Columbia, for respondent.

HOWARD, Judge:

In this State Grand Jury prosecution, Virgil Gosnell and twenty-five co-defendants were charged with conspiracy to traffic in 400 or more grams of cocaine in violation of S.C.Code Ann. § 44-53-370(e)(2)(e) (Supp.1999). Gosnell was convicted of conspiracy to traffic in cocaine in the amount of at least 200 grams, but less than 400 grams, which was charged by the trial court as a lesser included offense over his objection. Gosnell was sentenced to twenty-five years imprisonment and a $100,000 fine. On appeal, Gosnell argues the trial court erred in charging conspiracy to traffic in cocaine in the amount of at least 200 grams, but less than 400 grams, as directed verdict, that he was sentenced in the absence of subject matter jurisdiction, and that he was sentenced to an illegal, excessive sentence. We reverse.

FACTS/PROCEDURAL BACKGROUND

The prosecution of Gosnell and twenty-five co-defendants was the culmination of a two year State Grand Jury (SGJ) investigation. The investigation began in August 1993, when police arrested Michael Greer on a cocaine charge and executed a search warrant at his residence. Over the next two years, police followed the chain of Greer's suppliers, continuing to make purchases and turning those arrested into cooperating informants.

As a result of information provided by Greer, SGJ officers arranged four controlled cocaine buys from James Smith. Smith agreed to assist the officers and they set up three controlled cocaine buys from James Hattaway. Hattaway in turn led the officers to Todd Brank, from whom they effected at least two controlled buys. Brank also cooperated, and the officers set up a five kilogram undercover deal with Jerome "Babe" Harris. Harris agreed to cooperate but had not yet paid for the drugs, so the officers made an undercover payment of $115,000 to O'Bryant "O.B." Harris for him.¹

Officers arrested O.B. Harris on August 31, 1996, and he identified Jose Gustavo Castineira as his cocaine source. Officers set up a fake undercover payoff of Castineira, to take place September 1 at Harris Brothers' Garage, which was wired for sound and video. On the appointed day, Castineira and Juan Carlos Vasquez, both Cuban residents of Miami, arrived at the garage in a Mercedes Benz driven by Castineira. Both O.B. and Babe Harris were present. After a brief (recorded) conversation, in which O.B. Harris, Babe Harris, and Castineira discussed a twenty kilogram exchange, Castineira picked up the "cash" and placed it in the vehicle. The officers arrested Castineira and Vasquez.

On October 8, 1996, the SGJ indicted twenty-six defendants for conspiracy to traffic in 400 or more grams of cocaine, pursuant to S.C.Code Ann. § 44-53-370(e)(2)(e). Eighteen defendants pleaded guilty; the remaining eight were tried together during a two-week period in late April—early May 1997, including Gosnell.

Under the State's view of the evidence, Castineira was at the top of the distribution chain. To the extent that the State established that the Castineira conspiracy existed, multiple kilograms of a mixture containing cocaine were distributed under any view of the evidence. Gosnell, on the other hand, was at the lower level of the distribution chain. Under the State's evidence, Castineira distributed to O.B. Harris, who then distributed to Johnny Harold Harris, a/k/a Johnny Harold Miller (Miller) until he went to federal prison for distributing two kilograms of cocaine provided by Castineira. Once Miller went to prison, the conspiracy continued to operate, with O.B. Harris then distributing to Jerome "Babe" Harris thereafter. Babe Harris, in turn, distributed to Todd Brank, who distributed in smaller quantities to multiple people, including James Hattaway. Hattaway distributed smaller amounts to Gosnell. Consequently, under the State's evidence, the amount of cocaine actually handled by Gosnell was much less than the multiple kilogram distribution of the conspiracy itself. Because the evidence indicated Gosnell only handled a maximum of 252 grams, the court charged conspiracy to traffic in cocaine in the amount of at least 200 grams, but less than 400 grams, as a lesser included offense which the jury could consider in the case against Gosnell.

At the close of the State's case, Gosnell moved for a directed verdict, asserting the State's evidence, taken in a light most favorably to the State, did not show that Gosnell participated in a conspiracy to traffic in 400 grams or more of cocaine as alleged in the indictment. The trial court denied the motion. Gosnell did not present a defense. Gosnell renewed his motions, again arguing that the State did not present evidence of one conspiracy to traffic 400 grams or more, as alleged in the indictment. The court denied this motion, but in the case against Gosnell, decided to charge conspiracy to traffic in cocaine in the lesser amount. The jury convicted Gosnell of the offense of conspiracy to traffic in cocaine in the lesser amount of at least 200 grams, but less than 400 grams.

Gosnell also asserted throughout the trial that the State had indicted him for conspiracy to violate the Controlled Substances Act pursuant to S.C.Code Ann. § 44-53-420 (1985), rather than indicting him for trafficking in cocaine by conspiring with others as delineated under S.C.Code Ann. § 44-53-370(e) (Supp.1999). Therefore, he argued that he should be subjected to a maximum sentence of one-half the sentence permitted for trafficking in cocaine, in accordance with section 44-53-420. The trial court disagreed, sentencing him under section 44-53-370(e) to twenty-five years imprisonment and a $100,000 fine. This appeal followed.

LAW/ANALYSIS

The indictment charged Gosnell with violating section 44-53-370(e)(2)(e) by conspiring to traffic in 400 or more grams of cocaine. The indictment alleged that the defendants, including Gosnell:

... did ... knowingly, willingly, unlawfully, and willfully conspire, for the purpose of selling, delivering, purchasing, or bringing into this State, or providing financial assistance or otherwise aiding and abetting the sale, delivery, purchase, or bringing into this State, or the knowing actual or constructive possession, or the knowing attempt to become in actual or constructive possession of four hundred (400) grams or more of cocaine....

There is essentially a two-part test for determining whether to charge a lesser included offense. First, the court must determine if the proposed charge is legally a lesser included offense. In this regard, an indictment will sustain a conviction for a lesser offense if the lesser offense is included within the greater charged offense. State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974). The test for determining when a crime is a lesser included offense of the crime charged is whether the greater offense includes all the elements of the lesser offense. State v. Suttles, 279 S.C. 87, 302 S.E.2d 338 (1983). If the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater. Id.

Section 44-53-370(e) defines the offense of trafficking in cocaine as follows:

Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of:

(2) ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4), is guilty of a felony which is known as "trafficking in cocaine"....

S.C.Code Ann. § 44-53-370(e)(2) (Supp.1999); State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995).

There is no South Carolina case which directly answers the question of whether the graduated sentencing categories based upon quantity of cocaine are lesser included offenses. Although the statute provides a graduated structure of increasing penalties for trafficking in larger amounts of cocaine or any mixture containing cocaine, the statute is triggered by committing one of the prescribed acts with regard to ten grams or more. Raffaldt, 318 S.C. at 117,456 S.E.2d at 394. Thus, our supreme court has ruled that an indictment charging trafficking in cocaine, without specifying the amount, or specifying only that the amount was in excess of ten grams, is sufficient to confer subject matter jurisdiction for trafficking in any amount. Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998); see also State v. Towery, 300 S.C. 86, 386 S.E.2d 462 (1989)

.

In Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998) the supreme court ruled that an indictment which alleged that the defendant trafficked in cocaine in an amount in excess of ten grams did not limit jurisdiction to the lowest sentencing category of ten grams or more of cocaine, but less than 28 grams. Therefore, the court concluded the trial court had subject matter jurisdiction to convict the defendant of trafficking in cocaine in the next higher sentencing level of 28 grams or more, but less than one hundred grams, where the facts at trial substantiated the higher amount. In support of this ruling, the court cited with approval the Alabama case of Darby v. State, 516 So.2d 775 (Ala.Crim.App.1986), rev'd on other grounds, 516 So.2d 786 (1987) for the proposition that an "indictment alleging defendant tra...