concurring:
I concur in result with the majority opinion. I agree with the majority finding that there were two separate conspiracies, one to traffic cocaine and another to traffic marijuana. I write separately to clarify that, in my view, if there had been one single conspiracy, a subsequent prosecution after an acquittal would violate the principles of former jeopardy as espoused by this Court in State v. Dasher, 278 S.C. 454, 298 S.E. *389(2d) 215 (1982), and the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed. (2d) 548 (1990).
The Double Jeopardy Clauses of both the United States and South Carolina Constitutions protect against multiple punishments for the same offense and second prosecutions for the same offense after an acquittal, a conviction, or an improvidently granted mistrial. Corbin, supra; Matthews v. State, 300 S.C. 238, 387 S.E. (2d) 258 (1990); Dasher, supra. When there are multiple punishments imposed in the same trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed. (2d) 535 (1983). In this context, the established test for determining whether two offenses are the same was set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The Blockburger test is one of statutory interpretation which focuses on the formal elements of the crimes finding them to be different offenses if each requires proof of a fact which the other does not. State v. Magazine, 302 S.C. 55, 393 S.E. (2d) 385 (1990). Thus, one conspiracy may be the subject of more than one conspiracy statute each requiring different criminal objects; and therefore, differing elements of proof. This was the situation in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed. (2d) 275 (1981). In Albernaz, the single conspiracy involved both the importation and distribution of marijuana. The defendants were convicted in a single trial of violating two separate conspiracy statutes, one which prohibited conspiring to import marijuana and one which prohibited conspiring to distribute marijuana. Applying the Blockbuster test to the two statutes and finding it clearly satisfied, the United States Supreme Court held the multiple punishment was not in violation of the Double Jeopardy Clause. Id. at 344, 101 S.Ct. at 1145,67 L.Ed. (2d) at 285.
In the case at bar, however, the Double Jeopardy violation *390alleged is not one of multiple punishments but of successive prosecutions for the same offense. When successive prosecutions are brought, additional concerns are raised.
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity____
Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed. (2d) 199, 204 (1957). Additionally, multiple prosecutions give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction. Corbin, supra. The technical comparison of the elements of the two offenses does not protect defendants sufficiently from the burden of multiple trials. Id. 495 U.S. at 520, 110 S.Ct. at 2093, 109 L.Ed. (2d) at 564. Therefore, the analysis, when former jeopardy is alleged, includes a determination of the legislative intent under Blockburger, but additionally, “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 521, 110 S.Ct. at 2093, 109 L.Ed. (2d) at 564. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. Id. Hence, under some circumstances, multiple punishments imposed in the same trial may be proper but a subsequent prosecution would be barred. State v. Carter, 291 S.C. 385, 353 S.E. (2d) 875 (1987).
Conspiracy is a unique anticipatory offense. Conspiracy is defined as “a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object or an object neither criminal nor unlawful by criminal or unlawful means.” S.C. Code Ann. § 16-17-410 (1985). The gravamen of a conspiracy is the agreement. United States v. Felix, — U.S. —, 112 S.Ct. 1377, 118 L.Ed. (2d) 25 (1992) (quoting United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947)); Dasher, supra. Under South Carolina law, the crime of con*391spiracy is complete when the agreement is reached. No overt act in furtherance of the conspiracy need be proven. State v. Ferguson, 221 S.C. 300, 70 S.E. (2d) 355, cert. denied, 344 U.S. 830, 73 S.Ct. 35, 97 L.Ed. 646 (1952). It is a completely separate offense from the substantive offenses which are the objects of the conspiracy. Felix, supra; State v. Greuling, 257 S.C. 515, 186 S.E. (2d) 706 (1972). Thus, the conduct to be proven is the agreement. Accordingly, in Dasher, we held “in conspiracy cases the plea of former jeopardy will prevail where it can be shown that the subsequent prosecution rests solely upon the same agreement that was involved in the former prosecution, and that, where such identity of the agreement is established, the same conspiracy is involved, no matter how variegated the criminal purposes contemplated in the agreement.” Dasher 278 S.C. at 456, 298 S.E. (2d) at 217 (quoting Annotation, Several Conspiracies as Predicable Upon Single Agreement to Commit Several Offenses, 87 L.Ed. 29, 47 (1938).
Under the majority’s analysis, two people could orally agree to import both cocaine and marijuana and take no further action. With the evidence of this oral agreement, the two could be prosecuted for conspiring to import cocaine. After their conviction or acquittal, they could be tried again based on the same evidence and agreement for conspiring to import marijuana. This is contrary to the basic principles of protection from former jeopardy. Dasher, supra. In the second trial, the State could and undoubtedly would hone its trial strategies and perfect its evidence thereby increasing the possibility of conviction. Corbin 495 U.S. at 518, 110 S.Ct. at 2092, 109 L.Ed. (2d) at 562.
The analysis of this issue in this case is needlessly complicated by the way in which the State presented its case in the first Wilson trial in which Walter and Stephen were acquitted of trafficking cocaine. The State presented evidence of both conspiracies at the first trial arguing it was one grand conspiracy. The trial court allowed the evidence in but charged the jury its use was limited to showing motive or intent. The admission of evidence of this separate marijuana conspiracy under Lyle, supra in a trial in which Walter and Stephen were not charged for their involvement in the marijuana conspiracy is not before the Court at this time.
Generally, the actual oral or written agreement is not the *392evidence used to prosecute a conspiracy. In fact, no formal or express agreement need be established. State v. Fleming, 243 S.C. 265 133 S.E. (2d) 800 (1963). A tacit, mutual understanding, resulting in the willful and intentional adoption of a common design by two or more persons to do an unlawful act is sufficient. Id. Although a conspiracy may be complete without proof of overt acts, overt acts can be used to prove the existence and object of the conspiracy. Id. This use of this circumstantial evidence presents the possibility of the State using different acts to prove a single agreement as a conspiracy may continue for an extended period. United States v. Ragins, 840 F. (2d) 1184 (4th Cir. 1988). However, the “State cannot avoid the dictates of the Double Jeopardy Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct.” Corbin, 495 U.S. at 522, 110 S.Ct. at 2093, 109 L.Ed. (2d) at 565. Therefore, a “totality of the circumstances” test is used to determine whether two successive conspiracy counts charge the same conspiracy and thus the same offense within the meaning of Double Jeopardy. Ragins, supra. The factors considered are the time periods covered by the alleged conspiracies, the overlap of persons alleged to be co-conspirators, the places where the alleged conspiracies occurred, the substantive offenses alleged, and the overt acts alleged committed in the furtherance of the conspiracies. Id. This totality of circumstances test was applied by this court in Dasher, 278 S.C. at 456, 298 S.E. (2d) at 217.
To allow the State, after bringing one action alleging a conspiracy which results in an acquittal, to bring an action based on the same agreement or conspiracy by merely alleging an additional objective or additional overt acts as evidence of the agreement is completely contrary to the fundamental essence embodied in the Double Jeopardy Clause of both the United States and South Carolina Constitutions. The defendant has already defended himself successfully against allegations of his involvement in the agreement. Accordingly, if one conspiracy had been established, subsequent prosecution would be barred.