State v. Evans

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.

Appeal From Newberry County

Eugene C. Griffith, Jr., Circuit Court
Judge

Unpublished Opinion No. 2012-UP-319  

Submitted May 1, 2012 – Filed May 30, 2012

AFFIRMED

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.

[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.").