APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON APRIL 26, 2010
[¶1.] This appeal presents the question whether a verbal agreement to purchase illegal drugs in the future, without the presence of either the drugs or the purchase money, constitutes an attempt to possess a controlled substance. An undercover agent offered, and defendant accepted, an opportunity to buy a quantity of ecstasy for an agreed price. But no exchange of money or drugs ever occurred. Denying a motion for judgment of acquittal, the circuit court held the evidence sufficient. We reverse because these facts amount to mere preparation and, under the circumstances of this case, defendant's agreement alone was insufficient to convict him.
[¶2.] Willie Reed was indicted for conspiracy to commit distribution of a controlled substance and attempted possession of a controlled substance. We recount the supporting facts in a light most favorable to the prosecution. In October 2005, special agent Earl Miranda served as an undercover agent for the South Dakota Division of Criminal Investigation (DCI). Miranda posed as "Tony Hernandez," a California drug dealer. In the course of his investigation, Miranda telephoned Arthur Earl Barfield to arrange a meeting. Barfield was Reed's friend and an unpaid kitchen worker at Reed's nightclub.*fn1 Miranda met Barfield in Miranda's hotel room and at a Denny's restaurant. Barfield said that he and Reed were interested in buying ecstasy pills.
[¶3.] At a meeting in Reed's club, Miranda and Reed began talking and moved to a booth away from the music so they could hear each other. They discussed the possibility of Reed and Barfield purchasing ecstasy pills. According to Miranda, Reed said that he would provide the money and that he, Reed, was "The Man." Miranda later testified that Reed agreed to purchase 1000 pills for $7,000 and that delivery options were discussed, including Fed Ex, UPS, and the postal service. No money exchanged hands. But Reed assured Miranda that $7,000 was available, that delivery could be worked out, and that the pills could be moved in two weeks. Miranda testified that Reed ultimately said, "alright let's go ahead and do it, you know what I'm say'n"? Miranda responded, "Alright."
[¶4.] This conversation embodies the only direct contact between Miranda and Reed. Miranda delivered no pills to Reed, and Reed gave no money to Miranda. Miranda tried to go forward with the sale through Barfield, the middleman. They agreed to meet in Rapid City on two occasions, but the meetings never happened and the deal never occurred.
[¶5.] At trial, Reed testified that Barfield had asked him for $4,000 from proceeds of a grant Reed had received to remodel the nightclub. According to Reed, Barfield said he could "triple the money" by purchasing ecstasy pills and reselling them. Reed testified he was only meeting with Miranda to help his friend get out of "a big drug deal gone bad." Reed conceded that he agreed to the terms and conditions Miranda offered for the purchase of the ecstasy pills, but he was only "play acting" to get rid of the drug dealer for Barfield.
[¶6.] At the end of the State's case, and again at the close of all the evidence, Reed's counsel moved for a "directed verdict," alleging insufficiency of the evidence.*fn2
The trial court denied both motions. The jury found Reed not guilty of conspiracy to commit distribution of a controlled substance and guilty of attempted possession of a controlled substance.
[¶7.] On appeal, Reed argues that the trial court erred in not granting a judgment of acquittal because the evidence was insufficient to sustain a conviction for attempted possession of a controlled substance. SDCL 23A-23-3. Our analysis begins with SDCL 22-4-1, defining attempt as "any act toward the commission of the crime" by one who "fails or is prevented or intercepted in the perpetration of that crime[.]" As confirmed in State v. Disanto, to prove an attempt, "the prosecution must show that defendant (1) had the specific intent to commit the crime, (2) committed a direct act toward the commission of the intended crime, and (3) failed or was prevented or intercepted in the perpetration of the crime. 2004 SD 112, ¶15, 688 NW2d 201, 206 (citations omitted). Reed concedes that the evidence established the requisite specific intent.
[¶8.] Reed asserts that he neither failed nor was prevented or intercepted in the perpetration of the crime; he never went beyond mere preparation, and therefore, he committed no direct act toward possession of a controlled substance. "[T]he term 'act' 'presupposes some direct act or movement in execution of the design, as distinguished from mere preparation, which leaves the intended [offender] only in the condition to commence the first direct act toward consummation of his design.'" Id. ¶20, 688 NW2d at 207 (citing People v. Miller, 2 Cal2d 527, 42 P2d 308, 310 (1935)). Yet "it is not necessary that the last further act necessary to the actual accomplishment of the crime be taken to be a requisite to make an attempt... [but] only that 'any' act towards the commission of the crime be done." State v. Miskimins, 435 NW2d 217, 222-23 (SD 1989) (citing State v. Martinez, 88 SD 369, 220 NW2d 530 (1974)). "The line between preparation and attempt is drawn at that point where the accused's acts no longer strike the jury as being equivocal but unequivocally demonstrate that a crime is about to be committed." Martinez, 88 SD 369, 372, 220 NW2d at 531.
[¶9.] Here, the sole issue is whether there was sufficient evidence for the jury to conclude that Reed committed a direct act toward the commission of the crime beyond mere preparation. In Disanto, we held that "[a]cts of mere preparation in setting the groundwork for a crime do not amount to an attempt." 2004 SD 112, ¶40, 688 NW2d at 213. In so doing, we made clear that "[u]nder South Dakota's definition of attempt, solicitation alone cannot constitute an attempt to commit a crime." Id. Evidence tending to prove Reed's guilt included Reed's phone calls with Barfield arranging a meeting place to discuss the drug transaction with Miranda; Reed having his armed bartender act as security when Miranda (the "drug dealer") arrived; Reed and Miranda's relocation in the club to hammer out the details; and, their lengthy discussion regarding delivery options, price, and how long it would take to ...