Opinion
Opinion No. 3579.
Heard October 9, 2002.
Filed December 9, 2002.
Appeal From Anderson County, Alexander S. Macaulay, Circuit Court Judge.
AFFIRMED IN PART; REVERSED IN PART
Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Druanne D. White, of Anderson, for Respondent.
Dana Dudley was convicted of trafficking cocaine and conspiracy to traffic cocaine. She was sentenced to concurrent terms of twenty-five years for each charge and fined $12,000. Dudley, a Georgia resident, argues on appeal that (1) South Carolina lacked jurisdiction to prosecute her; and (2) the Circuit Court erred in failing to grant her motion for a directed verdict on the conspiracy charge. We affirm in part and reverse in part.
FACTS/PROCEDURAL BACKGROUND
On September 10, 1997, Officer Matthew Durham of the Anderson County Sheriff's Department noticed a vehicle weaving along Interstate 85 and making an improper lane change. Durham stopped the car and asked driver Earl Hale to exit the vehicle. Hale told Officer Durham that he was returning from a party in Atlanta. Passenger Donald Stokes told Durham that the two were returning from a funeral in Atlanta. After talking with Hale and giving him a warning, Durham asked Hale if he could search the vehicle. During his conversation with Hale, Durham allowed Stokes to exit the car. Hale gave Durham permission to search the vehicle. Deputy James Littleton spoke with Hale and Stokes while Durham proceeded with the search. Durham found in the trunk of the vehicle a paper bag containing a ziplock bag wrapped in a clear plastic bag. The ziplock bag contained cocaine. Hale and Stokes attempted to escape, but they were apprehended by the officers.
Hale and Stokes, who were both from Virginia, gave voluntary statements to the police. In Stokes' statement, he indicated he was acquainted with Dudley, who lived in Atlanta, and that Dudley knew where to obtain large amounts of cocaine. According to the statements of both men, Hale and Stokes traveled to Atlanta, partied at a gentlemen's club, and then contacted Dudley the next morning. Dudley met with the two men, who gave her a total of $5,000 to take to her supplier. Thereafter, Dudley returned to Hale and Stokes' hotel to deliver the cocaine. Hale and Stokes were planning to sell the drugs in their home state of Virginia, but they were stopped in Anderson County, South Carolina, before they could make it home.
Hale and Stokes agreed to assist police officers in prosecuting narcotics cases in South Carolina and Virginia. They began working with the Drug Enforcement Agency. While agents were monitoring and recording the conversations, Stokes made several telephone calls to Dudley to set up another cocaine purchase. Stokes asked Dudley to meet him in South Carolina, but she refused. Dudley finally agreed to meet Stokes in Atlanta. She was arrested in Atlanta and charged for her actions in providing to Stokes and Hale the cocaine, which was confiscated in Anderson County.
Hale and Stokes both testified against Dudley at her trial. Hale stated that Dudley supplied the cocaine to him and he intended to resell it. Stokes declared that Dudley brought them nine ounces of cocaine to their hotel.
After the State presented its case, Dudley moved for a directed verdict. Dudley claimed there was no evidence to establish guilt beyond a reasonable doubt on either indictment. The Circuit Court found there was sufficient evidence of guilt and denied the motion.
LAW/ANALYSIS
I. JURISDICTION
Dudley contends the Circuit Court lacked jurisdiction to prosecute her in South Carolina because she never entered the state. We disagree.
A. Subject Matter Jurisdiction
Dudley never entered South Carolina during her transaction with Hale and Stokes. The indictment charging Dudley with trafficking stated that Dudley "did in Anderson County, South Carolina on or about September 10, 1997 traffic in cocaine by aiding and abetting the bringing into the State of South Carolina 200 or more grams of cocaine." The indictment charging Dudley with conspiracy to traffic cocaine provided that Dudley "did in Anderson County, South Carolina on or about September 10, 1997 to September 15, 1997 conspire with another to knowingly traffic in excess of 200 grams of cocaine."
Subject matter jurisdiction is the power of a court to hear and determine cases of a general class to which the proceedings in question belong. City of Camden v. Brassell, 326 S.C. 556, 486 S.E.2d 492 (Ct.App. 1997). A Circuit Court acquires subject matter jurisdiction over a criminal matter if: (1) there has been an indictment which sufficiently states the offense; (2) the defendant has waived presentment of the indictment; or (3) the offense is a lesser included offense of the crime charged in the indictment. State v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002); State v. Timmons, 349 S.C. 389, 563 S.E.2d 657 (2002); State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001).
Questions regarding subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and can be raised sua sponte by the court. State v. Brown, Op. No. 3549 (S.C.Ct.App. filed Sept. 9, 2002) (Shearouse Adv. Sh. No. 32 at 52); see also State v. Ervin, 333 S.C. 351, 510 S.E.2d 220 (Ct.App. 1998) (holding issues related to subject matter jurisdiction may be raised at any time). Furthermore, lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by this Court. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001).
An indictment is sufficient to confer jurisdiction 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. Lynch, 344 S.C. at 639, 545 S.E.2d at 513; Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995). In South Carolina, an indictment "shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided." S.C. Code Ann. § 17-19-20 (1985). An indictment must: (1) enumerate all the elements of the charged offense, regardless of whether it is a statutory or common law offense; and (2) recite the factual circumstances under which the offense occurred. Id.; State v. Evans, 322 S.C. 78, 470 S.E.2d 97 (1996). Thus, an indictment passes legal muster if it charges the crime substantially in the language of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood. State v. Reddick, 348 S.C. 631, 560 S.E.2d 441 (Ct.App. 2002).
To convey jurisdiction, an indictment must apprise the defendant of the elements of the offense intended to be charged and inform the defendant of the circumstances he must be prepared to defend. Locke v. State, 341 S.C. 54, 533 S.E.2d 324 (2000); Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998); see also Browning, 320 S.C. at 368, 465 S.E.2d at 359 (true test of sufficiency of indictment is not whether it could be made more definite and certain, but whether it contains necessary elements of offense intended to be charged and sufficiently apprises defendant of what he must be prepared to meet). An indictment phrased substantially in the language of the statute which creates and defines the offense is ordinarily sufficient. State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981). South Carolina courts have held that the sufficiency of an indictment must be viewed with a practical eye. State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
Dudley was charged in 1997 with trafficking cocaine pursuant to S.C. Code Ann. § 44-53-370(e)(2)(d) (Supp. 1996). This section provides:
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:
. . . .
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" and, upon conviction, must be punished as follows if the quantity involved is:
. . . .
two hundred grams or more, but less than four hundred grams, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of one hundred thousand dollars.
(Emphasis added). Dudley was also charged with conspiracy to traffic under section 44-53-370(e)(2)(d).
Dudley does not complain that her indictments were invalid. Here, the indictments gave the time, place, and manner of the events in which Dudley was accused of having participated. The indictments "charge[d] the crime[s] substantially in the language of the . . . statute prohibiting the crime[s]." S.C. Code Ann. § 17-19-20 (1985). The statute is broad and plenary. Additionally, the statute is imbued with specificity in regard to acts and conduct consisting of "otherwise aids, abets, attempts" and "bring into this State." Id.
Moreover, both indictments apprised Dudley of the charges against her and the circumstances she must be prepared to defend. Furthermore, the indictments contained the necessary elements of the offenses charged and informed the Circuit Court of the sentence to pronounce. Subject matter jurisdiction over these crimes attached when valid indictments were issued by the grand jury. Concomitantly, we find the indictments in the present case conferred subject matter jurisdiction on the Circuit Court to try Dudley.
B. Personal Jurisdiction
Although Dudley couched her issue on appeal as a question of subject matter jurisdiction, she actually complains that the Circuit Court lacked personal jurisdiction over her.
Generally, jurisdiction of the person is acquired when the party charged is arrested or voluntarily appears in court and submits himself to its jurisdiction. State v. Douglas, 245 S.C. 83, 138 S.E.2d 845 (1964); State v. Langford, 223 S.C. 20, 73 S.E.2d 854 (1953). A defendant may waive any complaints he may have regarding personal jurisdiction by failing to object to the lack of personal jurisdiction and by appearing to defend his case. See State v. Bethea, 88 S.C. 515, 70 S.E. 11 (1911); see also State v. Castleman, 219 S.C. 136, 138-39, 64 S.E.2d 250, 251 (1951) ("A defendant may, of course, waive his objection to the jurisdiction of the Court over his person . . . ."); Town of Ridgeland v. Gens, 83 S.C. 562, 65 S.E. 828 (1909) (the court found no personal jurisdiction problem where the defendant appeared for his trial, was represented by an attorney, and defended his case on the merits).
In the instant case, Dudley appeared at trial and defended her case on the merits. She did not object to personal jurisdiction before the Circuit Court. As she consented to the Circuit Court's exercise of personal jurisdiction over her and did not raise any objection, Dudley failed to preserve this issue for review. See State v. Lee, 350 S.C. 125, 564 S.E.2d 372 (Ct.App. 2002) (issue must be raised to and ruled upon by trial judge to be preserved for appellate review). Because this issue was not preserved, it is improper for this Court to consider it on appeal.
C. Exercise of Extraterritorial Jurisdiction by South Carolina
Facially and legally, this Court has subject matter jurisdiction by virtue of a valid indictment under South Carolina precedent. That conclusion does not end the inquiry. We are required to analyze the exercise of extraterritorial jurisdiction over acts committed outside the state by Dudley.
The general rule is that a state may not prosecute an individual for a crime committed outside its boundaries. In re Vasquez, 705 N.E.2d 606 (Mass. 1999); see also People v. Blume, 505 N.W.2d 843 (Mich. 1993) (general rule is that jurisdiction is proper only over offenses as may be committed within the prosecuting state's jurisdiction). Yet, "blind adherence to a purely territorial concept of jurisdiction inadequately addresses the state's interest in protecting its citizens from the results of criminal activity." Blume, 505 N.W.2d at 845 n. 6.
Despite the general rule, a state is not deprived of jurisdiction over every criminal case in which the defendant was not physically present within the state's borders when the crime was committed. Vasquez, 705 N.E.2d at 610. The authority to exercise jurisdiction over acts that occur outside the state's physical borders developed as an exception to the rule against extraterritorial jurisdiction. Blume, 505 N.W.2d at 845. That exception, however, is limited to those acts that are intended to have, and that actually do have, a detrimental effect within the state. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911); Blume, 505 N.W.2d at 845. In defining extraterritorial jurisdiction, the United States Supreme Court held that "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the defendant] had been present at the effect, if the state should succeed in getting him within its power." Strassheim, 221 U.S. at 285, 31 S.Ct. at 560, 55 L.Ed. at 738; see also State v. Winckler, 260 N.W.2d 356 (S.D. 1977) (state jurisdiction properly lies when acts done outside its jurisdiction are intended to produce and do produce a detrimental effect within that jurisdiction).
The exception to the rule against extraterritorial jurisdiction requires a finding that the defendant intended a detrimental effect to occur in this state. Blume, 505 N.W.2d at 846. The two key elements of the requirement for exercising extraterritorial jurisdiction are specific intent to act and the intent that the harm occur in South Carolina. See Blume, 505 N.W.2d at 846. Some states refer to this exception as the "effects doctrine," which provides that acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect. See Vasquez, 705 N.E.2d at 610. "Although some courts consider the effects doctrine to be an exception to the general rule against extraterritorial jurisdiction, others point out that it is not an exception at all, but a logical application of the general rule in that the crime occurs where the effect is felt, not where the offender is located." Id. at 611 n. 4.
The proper analysis to determine whether extraterritorial jurisdiction can be exercised over trafficking in cocaine occurring in another state is to consider whether the trafficking charge could be established by the evidence. Blume, 505 N.W.2d at 846. Then, the Court must determine whether the trafficking was intended to occur in South Carolina. Id.
A crime is committed where the criminal act takes effect. Simpson v. State, 17 S.E. 984 (Ga. 1893). This is true even though the accused is never actually present within the state's jurisdiction. Winckler, 260 N.W.2d at 360. One who puts in force an agency for the commission of a crime is deemed to have accompanied the agency to the point where it takes effect. Id. The state is then justified in punishing the cause of the harm as if he were in fact present at the effect should the state ever succeed in getting him within its power. Id.
This Court should not approve the exercise of jurisdiction over Dudley unless the State can prove that Dudley intended the crime to occur in South Carolina.
A thorough review of the testimony discloses that Dudley transferred over 200 grams of cocaine to Stokes and Hale that they intended to sell. Dudley played an integral part in providing the cocaine that was brought into South Carolina. Giving efficacy to the law of circumstantial evidence in this state, it is inferable that Stokes and Hale intended to possess or sell the cocaine somewhere. Dudley knew that Stokes and Hale were from Virginia and would most probably travel through South Carolina while in possession of the contraband.
At common law, criminal jurisdiction was based primarily on the territorial principle. Courts have created the doctrine of constructive presence in order to allow a state to punish an offender not located within the state when the offender set in motion the events which culminated in a harm in the prosecuting state. The doctrine is articulated in Simpson v. State, 17 S.E. 984 (Ga. 1893). In Simpson, the defendant, who had been standing in South Carolina at the time he shot at a person in Georgia, was convicted in Georgia. Simpson applied the doctrine of constructive presence by concluding that the act of the accused took effect in Georgia.
The exercise of legislative criminal jurisdiction is recognized by reference to statutory language identifying the proscribed conduct. This state in the statutory verbiage encapsulates an objective territorial effect and proscribes conduct that occurs outside of the state's physical borders.
Here, Dudley demonstrated specific intent to act and the intent that the harm occur in South Carolina.
II. DIRECTED VERDICT
Dudley maintains the Circuit Court erred in failing to grant her directed verdict motion as to the charge of conspiracy to traffic cocaine. She asserts there was no evidence that she conspired in South Carolina with Hale and Stokes to traffic cocaine. We agree.
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. Walker, 349 S.C. 49, 562 S.E.2d 313 (2002); State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001). When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Condrey, 349 S.C. 184, 562 S.E.2d 320 (Ct.App. 2002); State v. Wakefield, 323 S.C. 189, 473 S.E.2d 831 (Ct.App. 1996). 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. Lollis, 343 S.C. 580, 541 S.E.2d 254 (2001). Conversely, a trial court should grant a motion for a directed verdict when the evidence merely raises a suspicion the accused is guilty. Id.; State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984).
Dudley was charged with conspiracy to traffic cocaine under section 44-53-370(e)(2)(d). That section provides, in pertinent part, that it is unlawful for a person to "conspire to sell, manufacture, cultivate, deliver, purchase, or bring into this State" two hundred grams or more of cocaine. Id. (emphasis added).
Conspiracy
The law of conspiracy was articulated in depth in State v. Condrey, 349 S.C. 184, 562 S.E.2d 320 (Ct.App. 2002). It is necessary and essential to analyze elementally the offense of conspiracy in regard to a decision in the instant case. Condrey elucidates:
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, 74 S.E.2d 582 (1953), instructs: "Often proof of conspiracy is necessarily by circumstantial evidence alone." Id. at 133, 74 S.E.2d at 585 (citations omitted). 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, 433 S.E.2d 864 (1993). Under South Carolina law, no overt acts need be shown to establish a conspiracy. The crime consists of the agreement or mutual understanding. Id.
Once a conspiracy has been established, evidence establishing beyond a reasonable doubt the connection of a defendant to the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981). Further, "the acts and declarations of any conspirator made during the conspiracy and in furtherance thereof are deemed to be the acts and declarations of every other conspirator and are admissible against all." Id. at 42, 282 S.E.2d at 842 (citation omitted).
Id. at 191-93, 562 S.E.2d at 323-24.
One of the elements of the conspiracy charge is that Dudley knowingly conspired to bring the cocaine into this state. Because we must strictly construe the statute in the defendant's favor, we must view this element as a necessary part of the crime charged. See Brown v. State, 343 S.C. 342, 348, 540 S.E.2d 846, 849 (2001) ("First and foremost, a penal statute must be construed strictly against the State and in favor of the defendant.").
It is the agreement itself, and not the acts undertaken in furtherance of the agreement, that is the violation of the law. It is not necessary that any overt acts be committed for a conspiracy to exist. The only evidence in this record is that Dudley, Hale, and Stokes conspired in Georgia. Dudley is being prosecuted and will subsequently be punished for the substantive crime of trafficking in cocaine by aiding and abetting the bringing of the contraband into South Carolina. There is no evidence of any conspiracy occurring in South Carolina. The conspiracy itself is the crime, not the commission of the overt acts. Because the conspiracy was limited to Georgia, Dudley is entitled to a directed verdict on the conspiracy charge.
CONCLUSION
We rule the Circuit Court had subject matter and extraterritorial jurisdiction over Dudley. We affirm the conviction and sentence of Dudley for trafficking in cocaine. We reverse the Circuit Court's denial of Dudley's motion for a directed verdict as to the charge of conspiracy to traffic cocaine into South Carolina.
AFFIRMED IN PART and REVERSED IN PART.
STILWELL, J., concurs.
CONNOR, J., dissents in a separate opinion.
I respectfully dissent. Because I believe South Carolina lacked jurisdiction for both of Dudley's offenses, I would vacate her convictions.
I agree with the majority's conclusion that the circuit court had personal jurisdiction over Dudley and was vested with subject matter jurisdiction based on a valid indictment. However, I disagree with the majority's holding that South Carolina could exercise extraterritorial jurisdiction over acts committed by Dudley outside of this State.
Although the majority correctly and thoroughly outlines a discussion of extraterritorial jurisdiction, I believe it errs in its application of this principle to the instant case. In my opinion, there is no evidence that Dudley intended either crime to take effect in South Carolina. Therefore, based on the following discussion, I would find South Carolina could not exercise jurisdiction over Dudley.
Given the same reasoning is applicable to both conspiracy to traffic cocaine and the substantive offense of trafficking in cocaine, I do not separately address each offense.
To date, there appears to be only one South Carolina case that addresses the concept of extraterritorial jurisdiction, particularly the "effects doctrine." State v. Morrow, 40 S.C. 221, 18 S.E. 853 (1893). In Morrow, the defendant was indicted pursuant to a South Carolina statute for the offense of procuring medicine for a woman with intent to cause an abortion. The defendant, a resident of Washington, D.C., procured the medication and mailed it to the woman in South Carolina. The woman's use of the medication resulted in an abortion, and ultimately the woman's death. Because the defendant's overt acts took place in Washington, D.C., the Supreme Court considered the question of whether South Carolina had jurisdiction for the charged offense. The Court implicitly recognized the "effects doctrine" stating South Carolina would have jurisdiction over Morrow's acts in the District of Columbia "if the acts there done were intended to take effect in this State, and did there actually take effect . . . ." Id. at 237, 18 S.E. at 859. Although the Court acknowledged that courts of one state could not take jurisdiction of offenses committed in another state, it considered the question of whether Morrow's offense "was, in the eye of the law, committed within the limits of this State." Id. at 241, 18 S.E. at 860. Applying this analysis, the Court concluded Morrow committed an offense within South Carolina, given Morrow's acts "provided the effect thereby intended reached the person for whom it was intended while in this State."
Despite testimony that Morrow had acted and formulated his intent within South Carolina, which the Court believed was sufficient to establish jurisdiction in this State, the Court went on to consider Morrow's specific issue by assuming there were no overt acts in South Carolina. Thus, to the extent the Court's analysis could be construed as dicta, we reference Morrow for the sole purpose of establishing that our Supreme Court has recognized and applied the "effects doctrine."
Id. at 238, 18 S.E. at 859.
Turning to the instant case, the record reveals no evidence that would support South Carolina exercising jurisdiction over Dudley. Both Stokes and Hale were Virginia residents who telephoned Dudley in Georgia. The entire transaction took place in Georgia. In Hale's written statement, he noted he and Stokes left Georgia and "got on 85 north towards [Virginia]." In Stokes's statement, he admitted he normally purchased drugs from someone in Virginia, but contacted Dudley in Atlanta to make a "dope run" because of the "dry spells" in Virginia. Stokes also testified he and Hale left for Virginia the same day they purchased the cocaine in Georgia. Additionally, Hale specifically acknowledged he and Stokes intended to sell the cocaine in Virginia.
Although Dudley may have known that Stokes and Hale would most likely travel through South Carolina on their way back to Virginia, any inference is speculative given there is no evidence of Dudley's knowledge of her co-conspirators' exact route. Furthermore, this inference or Dudley's mere knowledge is not sufficient to establish extraterritorial jurisdiction in this State. The prosecutor must have presented evidence that Dudley entered into the conspiracy and engaged in the sale with the intent to have a detrimental effect within South Carolina. See People v. Blume, 505 N.W.2d 843, 844 (Mich. 1993) ("[K]nowledge alone is not enough to exercise extraterritorial jurisdiction. The prosecutor must present evidence that defendant intended to commit an act with the intent to have a detrimental effect within this state.").
The officers' traffic stop and ultimate search of Hale and Stokes's vehicle can only be construed as an intervening act, rather than an overt act necessary to establish extraterritorial jurisdiction. Taking the majority's conclusion to its logical extreme, any state along a co-conspirator's route, however circuitous, would potentially be vested with jurisdiction over acts committed outside its state limits. This analysis would essentially eviscerate the "effects doctrine."
Furthermore, the lack of evidence establishing Dudley's specific intent is also illustrated by the contradictory result reached by the majority. The majority concludes this State had jurisdiction to prosecute Dudley for both offenses because she "demonstrated a specific intent to act and the intent that the harm occur in South Carolina." However, it reverses the trial judge's denial of Dudley's directed verdict motion as to the charge of conspiracy to traffic cocaine on the ground the conspiracy occurred in Georgia and not South Carolina. It is difficult to reconcile these decisions given both offenses under section 44-53-370(e)(2)(d) require a specific intent to bring cocaine "into this State." S.C. Code Ann. § 44-53-370(e)(2)(d) (Supp. 1996).
In my opinion, the same evidence used in the directed verdict analysis is equally applicable to the extraterritorial jurisdiction analysis. Thus, if the only evidence is that Dudley, Stokes, and Hale conspired in Georgia and there was no overt act in South Carolina pursuant to this conspiracy, then there is no evidence that Dudley intended for her acts to create a detrimental effect within South Carolina. See State v. McAdams, 167 S.C. 405, 166 S.E. 405 (1932) (holding in order for South Carolina to prosecute Georgia defendants for conspiracy entered into in Georgia, but completed in South Carolina, the State was required to prove that some overt act was committed in South Carolina by one of the conspirators pursuant to the conspiracy); cf. Blume, 505 N.W.2d at 848-52 (concluding Michigan did not have extraterritorial jurisdiction to prosecute Florida defendant for conspiracy to deliver or possession with intent to deliver more than 650 grams of cocaine, and aiding and abetting the manufacture or possession with intent to manufacture or deliver more than 650 grams of cocaine, where entire sale to Michigan resident took place in Florida and there was no evidence defendant acted with intent to have a detrimental effect in Michigan).
This conclusion is consistent with other jurisdictions. See, e.g., Commonwealth v. Fafone, 621 N.E.2d 1178 (Mass. 1993) (finding Massachusetts lacked territorial jurisdiction over crime of accessory before the fact of trafficking in cocaine where alleged criminal acts took place in Florida and there was no evidence Florida defendant knew cocaine would be distributed within Massachusetts); Moreno v. Baskerville, 452 S.E.2d 653 (Va. 1995) (concluding Virginia did not have jurisdiction to try defendant for drug trafficking committed in Arizona, even though drugs were eventually sold in Virginia, where sale of drugs in Virginia was not "immediate result" of distribution of drugs in Arizona); cf. State v. Chan, 935 P.2d 850 (Ariz.Ct.App. 1996) (finding Arizona had jurisdiction to prosecute out-of-state defendants for conspiracy to commit theft and attempted trafficking where in- state co-conspirator's overt actions of driving into and participating in the actual "sale" within the State of Arizona could be imputed to the defendants); Black v. State, 819 So.2d 208 (Fla.Dist.Ct.App. 2002) (holding Florida had subject matter jurisdiction to try out-of-state defendant for RICO offenses, communications fraud, and conspiracy to commit RICO offenses where out- of-state defendant made telephone sales calls and sent faxes to Florida county for purpose of defrauding county); People v. Govin, 572 N.E.2d 450 (Ill.App.Ct. 1991) (concluding charge of trafficking in cocaine properly brought in Illinois where Florida defendant acted with intent that cocaine be delivered in Illinois, and aided and abetted a transaction through an Illinois confidential informant by which cocaine was caused to be delivered in Illinois); State v. Campa, 2002 WL 471174 (Ohio Ct.App. 2002) (finding, in a drug- trafficking case, an offer to sell drugs over the telephone to a person in Ohio was sufficient to establish jurisdiction in Ohio even if the person offering to sell the drugs was outside the state).
Although I recognize this State's legitimate interest in protecting its citizens from the societal effects of drug trafficking, this alone is not sufficient to confer jurisdiction. I would note the absence of jurisdiction in South Carolina does not preclude the prosecution of Dudley's actions. Under the facts of this case, I believe either Georgia or Virginia would have jurisdiction. Cf. Marquez v. State, 12 P.3d 711 (Wyo. 2000) (holding Wyoming had jurisdiction to prosecute defendant for drug conspiracy where defendant entered into the conspiracy in New Mexico, was arrested pursuant to a traffic violation in Colorado, but intended for the conspiracy to have an effect within the State of Wyoming); see also S.C. Code Ann. § 44-53-410 (2002) ("If a violation of this article [Article 3, Narcotics and Controlled Substances] is a violation of a Federal law or the law of another state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State.").
Based on the foregoing analysis, I would vacate both of Dudley's convictions. Accordingly, it is unnecessary to separately address the merits of Dudley's argument concerning the denial of her motion for a directed verdict.