Opinion
Appellate Case No. 2011-189148 Unpublished Opinion No. 2013-UP-342
08-28-2013
The State, Respondent, v. Rico Brown, Appellant.
Appellate Defender Breen Richard Stevens and Appellate Defender Benjamin John Tripp, both of Columbia, for Appellant. Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia, for Respondent.
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.
Appeal From York County
Paul M. Burch, Circuit Court Judge
AFFIRMED
Appellate Defender Breen Richard Stevens and Appellate Defender Benjamin John Tripp, both of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia, for Respondent. PER CURIAM: Rico Brown appeals his convictions on charges of criminal conspiracy and possession of tools used in commission of a crime. In addition to arguing that substantial circumstantial evidence of Brown's guilt was presented at trial, the State contends Brown's directed verdict motion did not preserve any issue for appeal and Brown's statements to the trial court after he was convicted warranted affirmance of his convictions without further review of the record. We affirm Brown's convictions on their merits pursuant to Rule 220(b), SCACR, and the following authorities: 1. As to the charge of possession of tools used in commission of a crime: State v. Ballenger, 322 S.C. 196, 199, 470 S.E.2d 851, 854 (1996) (noting in the context of possession with intent to distribute narcotics that "'[a]ctual possession occurs when the drugs are found to be in the actual physical custody of the person charged with possession, while constructive possession occurs when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs are found'" (quoting State v. Ellis, 263 S.C. 12, 22, 207 S.E.2d 405, 413 (1974)); id. at 199-200, 470 S.E.2d at 854 ("Circumstantial evidence may be used to prove actual possession."); State v. Cherry, 361 S.C. 588, 594, 606 S.E.2d 475, 478 (2004) (stating a trial court should not refuse to direct a verdict "when the evidence merely raises a suspicion that the accused is guilty," but also emphasizing that "a trial judge is not required to find that the evidence infers guilt to the exclusion of any other reasonable hypothesis"); State v. Puckett, 237 S.C. 369, 379, 117 S.E.2d 369, 374 (1960) (acknowledging in a trial in which the charges against the defendants included possession of tools used in the commission of a crime that many of the tools found in the defendants' car "could be put to a lawful use," but holding "it is not reasonable to suppose that a person without criminal intent would be driving about with such an assorted [and] complete collection of tools and implements commonly used in burglary, larceny and safe cracking"). 2. As to the charge of criminal conspiracy: Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999) ("[A] car passenger . . . will often be engaged in a common enterprise with driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing." (emphasis added)); State v. Odems, 395 S.C. 582, 588, 590, 720 S.E.2d 48, 51, 52 (2011) (reversing convictions on conspiracy, first-degree burglary, and other charges and noting (1) the explanation by an alleged co-conspirator as to how the defendant ended up in a vehicle with the culprits even though the defendant did not participate in the burglary, and (2) the absence of evidence placing the defendant at the scene of the burglary); id. at 591, 720 S.E.2d at 53 (acknowledging the State offered no direct evidence that the defendant committed criminal conspiracy or any of the other offenses with which he was charged, but further stating that "substantial circumstantial proof of Petitioner's involvement in one of the four offenses would prove Petitioner's involvement as to all offenses"); State v. Wilson, 315 S.C. 289, 294, 433 S.E.2d 864, 867-68 (1993) (recognizing that "overt acts committed in furtherance of the conspiracy are not elements of the crime," but further stating that "[t]he substantive crimes committed in furtherance of the conspiracy constitute circumstantial evidence of the existence of the conspiracy, its object, and scope"). 3. We also reject the State's arguments that Brown's convictions should be affirmed on either error preservation grounds or because of general expressions of remorse that Brown made in court after the verdicts were read. See Rule 19(a), SCRCrimP ("On motion of the defendant or on its own motion, the court [in a criminal proceeding] shall direct a verdict in the defendant's favor on any offense charged in the indictment after the evidence on either side is closed, if there is a failure of competent evidence tending to prove the charge in the indictment."); id. (omitting the requirement in Rule 50(a), SCRCP, that "[a] motion for directed verdict shall state the specific grounds therefor" when such a directed verdict motion is made during a criminal proceeding); State v. Sroka, 267 S.C. 664, 665, 230 S.E.2d 816, 817 (1976) (noting the defendant specifically admitted in open court after he was convicted "that he had participated in the robbery with a sawed-off shotgun"); State v. Wiley, 387 S.C. 490, 497, 692 S.E.2d 560, 564 (Ct. App. 2010) (noting the defendant proclaimed his desire "to apologize to the Court for getting [himself] in this trouble" (emphasis added)).