State v. Dudley

ANDERSON, J.

(dissenting):

I respectfully dissent. I disagree with the reasoning and analysis of the majority. The holding of the majority misconstrues and misapplies the law extant in regard to: (1) personal jurisdiction; (2) subject matter jurisdiction; and (3) extraterritorial jurisdiction. I VOTE to AFFIRM the conviction for trafficking cocaine.

FACTS/PROCEDURAL BACKGROUND

On September 10, 1997, Officer Matthew Durham of the Anderson County Sheriffs 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 *539the 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.

LAWIANALYSIS

Dudley contends the Circuit Court lacked jurisdiction to prosecute her in South Carolina because she never entered the state. I disagree.

I. 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.”

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; *540or (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, 351 S.C. 522, 570 S.E.2d 559 (2002); 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 *541charged 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 does not complain that her indictments were invalid. Here, the indictments gave the time, place, and manner of the *542events 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, the indictments in the present case conferred subject matter jurisdiction on the Circuit Court to try Dudley.

II. 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 *543did 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.

III. 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. It is essential to analyze the exercise of extraterritorial jurisdiction over acts committed outside the state by Dudley.

“It is elementary that before a court may exercise judicial power to hear and determine a criminal prosecution, that court must possess three types of jurisdiction: jurisdiction over the defendant, jurisdiction over the alleged crime, and territorial jurisdiction.” State v. Legg, 9 S.W.3d 111, 114 (Tenn.1999) (emphasis added).

The general rule is that a state may not prosecute an individual for a crime committed outside its boundaries. In re Vasquez, 428 Mass. 842, 705 N.E.2d 606 (1999); see also People v. Blume, 443 Mich. 476, 505 N.W.2d 843 (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. Id.

*544The seminal case in this country elucidating the right of a state to exercise extraterritorial jurisdiction is Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911). Strassheim edifies:

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, if the state should succeed in getting him within its power. We may assume, therefore, that Daily is a criminal under the laws of Michigan.
Of course, we must admit that it does not follow that Daily is a fugitive from justice. On the other hand, however, we think it plain that the criminal need not do within the state every act necessary to complete the crime. If he does there an overt act which is and is intended to be a material step toward accomplishing the crime, and then absents himself from the state and does the rest elsewhere, he becomes a fugitive from justice when the crime is complete, if not before.

Id. at 285, 31 S.Ct. at 560, 55 L.Ed. at 738 (citations omitted) (emphasis added); 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).

An excellent academic explication of a state’s extraterritorial criminal jurisdiction is In re Vasquez, 428 Mass. 842, 705 N.E.2d 606 (1999). Vasquez inculcates:

The general rule, accepted as “axiomatic” by the courts in this country, is that a State may not prosecute an individual for a crime committed outside its boundaries. See, e.g., Neilsen v. Oregon, 212 U.S. 315, 321, 29 S.Ct. 383, 53 L.Ed. 528 (1909); Huntington v. Attrill, 146 U.S. 657, 673, 13 S.Ct. 224, 36 L.Ed. 1123 (1892); Commonwealth v. Booth, 266 Mass. 80, 84, 165 N.E. 29 (1929) (rule against extraterritorial application of criminal laws “is a general principle”); State v. Cochran, 96 Idaho 862, 864, 538 P.2d 791 (1975); Trindle v. State, 326 Md. 25, 31, 602 A.2d 1232 (1992); Blume, supra at 480, 505 N.W.2d 843; People v. Devine, 185 Mich. 50, 52-53, 151 N.W. 646 (1915); State v. Karsten, 194 Neb. 227, 229, 231 N.W.2d 335 (1975); State v. Hall, 114 *545N.C. 909, 911, 19 S.E. 602 (1894) (rule is a “general principle of universal acceptation”); Ex parte McNeely, 86 W.Va. 84, 92, 14 S.E. 436 (1892); 21 Axn.Jur.2d § 343 (1981) (rule is “fundamental”); Allen & Ratnaswamy, Heath v. Alabama: A Case Study of Doctrine and Rationality in the Supreme Court, 76 J.Crim. L. & Criminology 801, 815 n. 144 (1985). The source of this rule is unsettled and has not been ascribed to any particular constitutional provision, see, e.g., State ex rel. Juvenile Dep’t v. W., [34 Or.App. 437] supra at 442 n. 5, 578 P.2d 824, yet it has been called by one commentator “too deeply embedded in our law to require justification.” Laycock, Equal Citizens of Equal and Terri-tonal States: The Constitutional Foundations of Choice of Laiv, 92 Colum. L.Rev. 249, 318 (1992).
Despite this general rule, however, 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. Two major exceptions to the territorial principle might permit Oregon to exercise jurisdiction over the defendant in this case, even though he has never been within its borders.
The “effects” doctrine provides 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 he had been present at the effect.” Strassheim v. Daily, supra at 285, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735. The jurisdictional basis provided by Strassheim has been utilized by a number of States to permit prosecution of individuals not within the State at the time they violated the State’s law ....

Id. at 610-11 (footnote omitted) (emphasis added).

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 in the case sub judice 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.” 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 *546jurisdiction, 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, 92 Ga. 41, 17 S.E. 984 (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, 92 Ga. 41, 17 S.E. 984 (1893). In Simpson, the defendant, who had been standing in South Carolina at the time he shot at a *547person 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.

CONCLUSION

The Circuit Court had personal jurisdiction, subject matter jurisdiction, and extraterritorial jurisdiction over Dudley. I VOTE to AFFIRM the conviction and sentence of Dudley for trafficking in cocaine.

GOOLSBY, J., concurs.