Attempt or Conspiracy to Commit Marijuana Offenses

Under South Carolina law, an attempt or conspiracy to commit marijuana offenses involves distinct legal frameworks, elements of proof, and sentencing structures depending on whether the charge is classified as a general drug-related attempt/conspiracy, a common law offense, or a specific statutory trafficking offense.

The Substantive Crime of Conspiracy

Under South Carolina statutory and common law, a conspiracy is defined as a combination or agreement 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, State v. Wilson, 315 S.C. 289. The gravamen or essence of the offense of conspiracy is the agreement, combination, or mutual understanding itself State v. Wilson, 315 S.C. 289, State v. Mouzon, 321 S.C. 27.

South Carolina law does not require proof of an overt act to establish a conspiracy; rather, the conspiracy is complete upon the formation of the agreement State v. Mouzon, 321 S.C. 27. Any substantive crimes committed in furtherance of the conspiracy merely serve as circumstantial evidence of its existence, scope, and objective State v. Mouzon, 321 S.C. 27. An agreement to distribute drugs can be rationally inferred from frequent contacts among the defendants and their joint appearances at negotiations and transactions State v. Horne, 324 S.C. 372. Once a conspiracy is established, a defendant may be convicted of knowing participation based on a slight connection shown beyond a reasonable doubt State v. Horne, 324 S.C. 372. The acts and declarations of any conspirator made in furtherance of the conspiracy are deemed the acts and declarations of, and are admissible against, all other co-conspirators State v. Horne, 324 S.C. 372.

The Substantive Crime of Attempt

To prove a common law attempt, the State must demonstrate that the defendant acted with specific intent and committed an overt act State v. Reid, 393 S.C. 325. Specific intent in this context requires that the defendant consciously intended to complete the underlying, or choate, offense State v. Reid, 393 S.C. 325. In addition to specific intent, the defendant must commit an overt act in furtherance of the intent that goes beyond mere preparation State v. Reid, 393 S.C. 325. Preparation consists of devising or arranging the means or measures necessary to commit the crime State v. Reid, 383 S.C. 285. In contrast, an overt act or attempt is a direct movement toward commission after preparations are complete State v. Reid, 383 S.C. 285. The overt act is liberally construed, need not be the final proximate step to consummate the offense, and is sufficient if it goes far enough to amount to the commencement of the crime's consummation State v. Reid, 383 S.C. 285.

Marijuana Trafficking by Attempt or Conspiracy

Specific statutory provisions govern the attempt or conspiracy to traffic in marijuana. Any person who attempts or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into South Carolina, or who knowingly attempts to enter actual or constructive possession of ten pounds or more of marijuana, is guilty of the felony of "trafficking in marijuana" S.C. Code Ann. § 44-53-370.

The statutory penalties for conspiracy or attempt to traffic in marijuana are graduated by weight and prior offense history:

Ten Pounds to Less Than 100 Pounds:
- First Offense: A term of imprisonment between one and ten years, which may not be suspended and for which probation may not be granted, plus a $10,000 fine S.C. Code Ann. § 44-53-370.
- Second Offense: A term of imprisonment between five and twenty years, with no suspended sentence or probation, plus a $15,000 fine S.C. Code Ann. § 44-53-370.
- Third or Subsequent Offense: A mandatory term of imprisonment of twenty-five years, with no suspended sentence or probation, plus a $25,000 fine S.C. Code Ann. § 44-53-370.

Statutory Penalties for Non-Trafficking Attempt or Conspiracy

For drug offenses under the South Carolina narcotics article that do not rise to the level of trafficking, attempts and conspiracies are penalized under a separate statutory mechanism:

General Controlled Substances: A person who attempts or conspires to commit an offense under this article is subject to a fine or imprisonment that may not exceed one-half of the maximum punishment prescribed for the completed object offense S.C. Code Ann. § 44-53-420.
Simple Possession Attempts: A person who attempts to possess an unlawful substance is guilty of a misdemeanor and, upon conviction, must be fined not more than $500, imprisoned for not more than thirty days, or both S.C. Code Ann. § 44-53-420.

Qualifications and Legal Exceptions

Several key procedural rules and legal doctrines limit how attempt and conspiracy charges are prosecuted and sentenced:

Non-Merger Doctrine and Wharton's Rule: Generally, a conspiracy is a distinct offense that does not merge with the completed substantive crime, meaning a defendant can be punished for both State v. Crawford, 362 S.C. 627. However, under "Wharton's Rule," if a substantive offense by definition requires the concerted action of two or more persons, and there is no ingredient in the conspiracy that is not present in the substantive crime, the parties cannot be charged with both the conspiracy and the substantive offense State v. Crawford, 362 S.C. 627.
Sentencing Ceilings: For general conspiracy convictions under the conspiracy statute, a defendant must not receive a greater fine or sentence than the maximum penalty permitted for the completed contemplated offense S.C. Code Ann. § 16-17-410.
Double Jeopardy: South Carolina law and judicial precedent do not hold that a conviction for both conspiracy and a substantive offense under the drug trafficking statute constitutes double jeopardy Harden v. State, 360 S.C. 405. However, possession with intent to distribute marijuana is a lesser included offense of trafficking based on possession, meaning a defendant cannot be convicted of both for the same drug quantity Harden v. State, 360 S.C. 405.
Ongoing Nature of Conspiracy: Conspiracy is an ongoing or continuing crime State v. Wilson, 315 S.C. 289. A conspiracy that began prior to the enactment of a new statute but continued without cessation after its effective date does not violate the constitutional prohibition against ex post facto laws State v. Wilson, 315 S.C. 289.

Attempt and conspiracy to commit marijuana offenses in South Carolina are distinct crimes defined by mutual agreement (for conspiracy) or specific intent coupled with a direct overt act (for attempt). While minor possession attempts are penalized as misdemeanors, conspiracies or attempts to manufacture, distribute, or possess larger quantities of marijuana carry significant felony penalties. Under South Carolina's statutory scheme, attempting or conspiring to handle ten pounds or more of marijuana constitutes the felony of trafficking, which carries mandatory minimum prison sentences that scale with the quantity of marijuana involved and the offender's prior criminal history. Additionally, these preparatory crimes do not merge with completed offenses, meaning individuals can be prosecuted and sentenced for both the conspiracy and the underlying substantive crime.

Elements

Intent: The defendant intended to commit a specific marijuana offense S.C. Code Ann. § 44-53-420.
Overt Act: The defendant attempted or conspired with others to commit the unlawful act S.C. Code Ann. § 44-53-420.

Defenses

No Agreement or Overt Act: Demonstrating that there was no agreement to cooperate (for conspiracy) or that the defendant did not take an overt step toward committing the offense (for attempt).
Defenses to Underlying Offense: Any defense that invalidates the possibility of the completed underlying crime.

Penalties

Attempt to Possess: Misdemeanor; upon conviction, a fine of not more than $500, imprisonment of not more than 30 days, or both S.C. Code Ann. § 44-53-420.
Other Attempts or Conspiracies: Upon conviction, the defendant may be fined or imprisoned up to one-half of the maximum punishment prescribed for the completed target offense S.C. Code Ann. § 44-53-420.

Under South Carolina law, marijuana offenses are categorized based on the quantity of the substance involved, ranging from simple possession of small amounts to major trafficking offenses. South Carolina strictly regulates marijuana, drawing clear lines between minor possession and major trafficking operations. Simple possession of small quantities is treated as a misdemeanor, offering opportunities for conditional discharges or diversion programs. In contrast, possessing larger quantities triggers legal presumptions of an intent to distribute, and reaching the ten-pound threshold subjects defendants to severe felony trafficking charges with mandatory minimum prison sentences that cannot be suspended. Effectively defending against these charges typically relies on challenging the prosecution's evidence of constructive possession, knowledge, or intent.

Criminal defense in South Carolina is technical and detail-driven. Small facts often make the biggest difference.

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