State v. Evans ( 2012 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Ernest Antonio Evans, Appellant.

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Appeal From Newberry County
Eugene C. Griffith, Jr., Circuit Court Judge

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Unpublished Opinion No. 2012-UP-319  
Submitted May 1, 2012 – Filed May 30, 2012

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AFFIRMED

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Appellate Defender LaNelle Cantey DuRant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Deputy Attorney General David Spencer, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.

PER CURIAM:  Ernest Antonio Evans appeals his convictions of conspiracy and shoplifting, third offense, arguing the trial court erred in (1) denying his directed verdict motion on the conspiracy charge and (2) proceeding with Evans's trial for the felony of shoplifting, third offense, when he was indicted for shoplifting in violation of section 16-13-110 of the South Carolina Code (2003), which is a misdemeanor.  We affirm.[1]

1.  We hold the trial court properly denied Evans's motion for a directed verdict on the conspiracy charge. Criminal conspiracy is defined as "a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means."  S.C. Code Ann. § 16-17-410 (2003).  "The gravamen of conspiracy is an agreement or combination."  State v. Stuckey, 347 S.C. 484, 502, 556 S.E.2d 403, 412 (Ct. App. 2001).  "However, a formal agreement is not necessary to establish a conspiracy, as the conspiracy may be proven by circumstantial evidence and the conduct of the parties."  Id. at 502-03, 556 S.E.2d at 412 (internal quotation marks omitted). "What is needed is proof they intended to act together for their shared mutual benefit within the scope of the conspiracy charged."  Id. at 503, 556 S.E.2d at 412-13 (internal quotation marks and emphases omitted).  In making this determination, "[t]he substantive crimes committed in furtherance of the conspiracy constitute circumstantial evidence of the existence of the conspiracy, its object, and scope."  State v. Wilson, 315 S.C. 289, 294, 433 S.E.2d 864, 868 (1993).  In the instant case, sufficient evidence supports a finding that Evans and his companion conspired to shoplift merchandise from the CVS store in Newberry, and the trial court properly denied his directed verdict motion.   See State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) (holding when ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight).

2.  We find Evans's argument challenging the sufficiency of the indictment for shoplifting is not preserved for appellate review.  Our supreme court has "held that the concepts of subject matter jurisdiction and sufficiency of an indictment are distinct."  State v. Dickerson, 395 S.C. 101, 119, 716 S.E.2d 895, 905 (2011); see also United States v. Cotton, 535 U.S. 625 (2002) (holding that a defective indictment does not deprive a court of jurisdiction).  Accordingly, "if an indictment is challenged as insufficient or defective, the defendant must raise that issue before the jury is sworn and not afterwards."  State v. Gentry, 363 S.C. 93, 101, 610 S.E.2d 494, 499 (2005).  Because Evans did not challenge the sufficiency of his indictment at any point during trial and, in fact, stipulated that the court "ha[d] jurisdiction over third offense [shoplifting,]" his instant argument is not preserved for our review.[2]

AFFIRMED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCACR. 

[2] Further, even if Evans's argument were preserved, we would affirm.  See Carter v. State, 329 S.C. 355, 362-63, 495 S.E.2d 773, 777 (1998) ("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."); State v. Scriven, 339 S.C. 333, 337-38, 529 S.E.2d 71, 73 (Ct. App. 2000) ("Where a statute increases the punishment for a second or subsequent offense, the allegation that the offense charged in the indictment was of that character is unnecessary.").