THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Spencer L. Gordon, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From York County
Marc Westbrook, Trial Court Judge
 John C. Hayes, III, Post-Conviction Relief Judge

Memorandum Opinion No. 2004-MO-044
Submitted February 19, 2004 - Filed August 16, 2004

REVERSED

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Chief, Capital and Collateral Litigation Donald J. Zelenka, and Assistant Attorney General David A. Spencer, of Columbia, for Petitioner.

Assistant Appellate Defender Tara S. Taggart; and Tara Dawn Shurling, both of Columbia, for Respondent.

JUSTICE PLEICONES:  Spencer Gordon (respondent) was indicted for trafficking cocaine under S.C. Code Ann. § 44-53-375 (c).  Respondent was found guilty of conspiracy of possession with intent to distribute crack cocaine, and was sentenced to twenty-one years imprisonment and a fine of $20,000.  Respondent appealed his conviction, which was affirmed by the Court of Appeals.  State v. Gordon, Op. No. 99-UP-507 (S.C. Ct. App. filed September 8, 1999). 

Respondent filed an application for post-conviction relief (PCR), and moved for summary judgment on the grounds that the circuit court lacked subject matter jurisdiction over his conviction.  The PCR judge granted respondent’s motion.  The State filed a petition for writ of certiorari, which was granted.  We reverse. 

ISSUE

Did the trial court have subject matter jurisdiction to convict respondent of a violation of § 44-53-375(b) as a lesser-included offense of § 44-53-375(c)?

ANALYSIS

In April 1997, respondent was indicted, along with several others, for conspiracy to traffic in crack cocaine.  At a subsequent proceeding, the State, on respondent’s motion, was ordered to amend the indictment to include more specificity with regard to the charge.  The amended indictment, charging respondent with trafficking in crack cocaine in violation of S.C. Code Ann. § 44-53-375(c), was true billed by the Grand Jury in May 1997. Respondent was tried only on count one of the amended multi-count indictment.  This count read:

COUNT ONE
TRAFFICKING IN CRACK COCAINE
S.C. Code Ann. Section 44-53-375(c)

That WILLIE E. GORDON, AKA “JR”, SPENCER GORDON, RENEE LEACH, HARRY BARNETTE, CALVIN BARNETTE, ROSIE D. JONES, AKA “POM-POM”, TOMMY JAMES RHINEHART, FNU LNU, AKA “T”, JUAN REID, and other persons both known and unknown to the Grand Jury, did Traffick [sic] in Crack Cocaine in York County, from on or about May of 1995 until the date of this indictment, by either knowingly conspiring to sell, or deliver, or purchase, or bring into this State, or provide financial assistance or did otherwise aid, abet, or attempt to sell, or deliver, or purchase, or bring into this State four hundred grams or more of crack cocaine, a Schedule II controlled substance under provisions of Section 44-53-110, et seq., Code of Laws of South Carolina (1976), as amended, such conduct not having been authorized by law and is a violation of Section 44-53-375(c)- Trafficking in Crack Cocaine. (emphasis supplied). 

The jury was charged that conspiring to possess crack cocaine with intent to distribute was a lesser-included offense of trafficking in crack cocaine. Respondent was found guilty of conspiring to possess crack cocaine with intent to distribute. 

At the PCR hearing, respondent moved for summary judgment on the grounds that conspiring to possess with intent to distribute crack cocaine is not a lesser-included offense of trafficking in crack cocaine.  The PCR judge granted the motion stating, “it has long been established that conspiracy is not a lesser-included offense of [the] substantive offense which is the object of the conspiracy.”

Generally, conspiracy is not a lesser-included offense of a substantive offense.  State v. Ferguson, 221 S.C. 300, 70 S.E.2d 355 (1952); State v. Greuling, 257 S.C. 515, 186 S.E.2d 706 (1972); State v. Steadman, 257 S.C. 528, 186 S.E.2d 712 (1972).  South Carolina Code Ann. § 44-53-375 (c) (2002), which the indictment tracks, states “A person who knowingly…conspires to sell, manufacture, deliver, purchase or bring into this State…ten grams or more of…crack cocaine…is guilty of a felony which is known as ‘trafficking in ice, crank, or crack cocaine.’” (emphasis supplied). As defined in this section, there is no distinction between conspiracy to traffic and the substantive offense of trafficking in crack cocaine; in other words, the statute incorporates conspiracy as one of a number of ways the substantive offense may be committed.  See i.e. Harris v. State, 349 S.C. 46, 562 S.E.2d 311 (2002) (holding that under Section 44-53-370 (e) the legislature clearly intended that conspiracy to traffic be treated as trafficking).  One of the ways respondent was alleged to have trafficked in crack cocaine was by conspiring to “sell, manufacture, deliver, purchase, or bring into this State…” as permitted under the general statute of trafficking in crack cocaine.  S.C. Code Ann. § 44-53-370 (2002).  Conspiracy to traffic in crack cocaine is encompassed in the indictment under which respondent was charged, as one way to traffic in crack cocaine.

An indictment confers jurisdiction upon the circuit court and gives the defendant notice of the charges against him.  S.C. Code Ann. §17-19-20 (1985); see State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987).  The “circuit court does not have subject matter jurisdiction to convict a defendant of an offense unless there is an indictment which sufficiently states the offense, the defendant waives presentment, or the offense is a lesser included offense of the crime charged in the indictment.”  State v. Primus, 349 S.C. 576, 579, 564 S.E.2d 103, 105 (2002). Possession with intent to distribute crack cocaine is a lesser-included offense of trafficking in crack cocaine.  Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990).  Therefore, conspiring to possess crack cocaine with intent to distribute is a lesser-included offense of conspiracy to traffic in crack cocaine.  See e.g. State v. Gosnell, 341 S.C. 627, 535 S.E.2d 453 (Ct. App. 2000)(holding that conspiracy to traffic cocaine in the amount of 400 grams or more can include conspiracy to traffic lesser amounts.)

CONCLUSION

We REVERSE the PCR court, as the circuit court had subject matter jurisdiction to convict respondent of conspiring to possess crack cocaine with intent to distribute as a lesser-included offense of conspiring to traffic in crack cocaine, for which respondent was indicted. 

TOAL, C.J., and MOORE, J., concur.  WALLER, J., dissenting in a separate opinion.  BURNETT, J., not participating.

JUSTICE WALLER:  I respectfully dissent.  In my opinion, conspiracy to possess with intent to distribute crack cocaine is not a lesser-included offense of trafficking crack cocaine.  Accordingly, there having been no indictment for conspiracy to PWID crack, the trial court was without subject-matter jurisdiction to convict Gordon of this offense; I would affirm the PCR court’s grant of relief. 

In a criminal case, the trial court’s subject matter jurisdiction is limited to those crimes charged in the indictment and all lesser-included offenses.  State v. Watson, 349 S.C. 372, 563 S.E.2d 336 (2002).  An offense is a lesser-included offense of another if “the greater of the two offenses includes all the elements of the lesser offense.”  State v. Burton, 356 S.C. 259, ___, 589 S.E.2d 6, 8 (2003), citing State v. Elliott, 346 S.C. 603, 606, 552 S.E.2d 727, 728 (2001).  A lesser offense is included in the greater only if each of its elements is always a necessary element of the greater offense.  Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).  See also 42 C.J.S. Indictments and Informations § 218 (1991)(an offense can be considered as lesser-included if, and only if, all essential elements of the lesser offense are included among essential elements of greater offense).  If, under any circumstances, a person can commit the greater offense without being guilty of the purported lesser offense, then the latter is not a lesser-included offense.   State v. LaCoste, 347 S.C. 153, 553 S.E.2d 464 (Ct. App. 2001), cert. dismissed as improv. granted 353 S.C. 538, 579 S.E.2d 318 (2003).  

Here, it is patent that conspiracy is not an essential element of the greater offense of trafficking.  Although conspiracy is one method by which trafficking may be achieved, it is not always a necessary element of trafficking; there are numerous ways listed in the statute via which a person may commit that offense (e.g. sell, manufacture, deliver, purchase, bring into this state, provide financial assistance, or otherwise aid or abet).  See State v. Easler (although felony DUI and ABHAN may both involve element of “serious bodily injury,” there are other circumstances which may give rise to ABHAN such that serious bodily injury is not a necessary element of ABHAN; therefore, ABHAN is not a lesser-included offense of felony DUI). 

I am not unmindful that this Court has, on occasion, found an offense to be lesser-included notwithstanding a lack of strict adherence to the elements test.  See State v. Elliott, 346 S.C. 603, 606, 552 S.E.2d 727, 728 (2001).   However, we have done so only where, as in Elliott, the offense has traditionally been considered a lesser-included offense of the greater offense charged.

Here, the majority recognizes that conspiracy is not generally a lesser-included offense of a substantive offense, nor has it traditionally been so considered.  As noted by Justice Toal in her concurrence in State v. Wilson, 311 S.C. 382, 391, 429 S.E.2d 453, 458 (1993), conspiracy “is a completely separate offense from the substantive offenses which are the objects of the conspiracy.”  (emphasis supplied).  The majority correctly notes that possession with intent to distribute crack cocaine is a lesser-included offense of trafficking.  Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990).  However, that PWID crack is a lesser-included offense of trafficking is of no consequence.  The inquiry here is whether conspiracy is a lesser-included offense of trafficking.  In my opinion, as demonstrated above, it is not.

Accordingly, in my opinion, the trial court was without subject-matter jurisdiction to convict Gordon of conspiracy to possess with intent to distribute crack.  I would affirm the PCR court’s grant of relief.