THE STATE OF SOUTH CAROLINA
STATE OF SOUTH CAROLINA
In The Court of Appeals
The State,
Respondent,
v.
Jo Pradubsri,
Appellant.
Appeal From Richland County
Marc H. Westbrook, Circuit Court Judge
Unpublished Opinion
No. 2003-UP-68
Submitted January 13, 2003 Filed
January 22, 2003
AFFIRMED
Assistant Appellate Defender Robert M. Pachak, of Columbia,
for Appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General Melody J. Brown; and Solicitor Warren B. Giese, all
of Columbia, for Respondent.
PER CURIAM: Jo Pradubsri was found guilty of trafficking
crack cocaine following a jury trial. He was sentenced to five years imprisonment.
On appeal, Pradubsri argues the trial judge erred in (1) refusing to suppress
evidence received pursuant to a defective search warrant; (2) allowing Pradubsri
to be impeached with four prior crack cocaine convictions; and (3) refusing
to redact Pradubsris statement. We affirm.
[1]
FACTS/PROCEDURAL BACKGROUND
On October 6, 1998, Sandra Griffin, the property manager of
Mallard Pointe Apartments, received information from one of her maintenance
workers that he had seen crack cocaine on a table in apartment 2-A while he
was doing repair work. Griffin called the Richland County Sheriffs Department
to report the situation.
Officer Randall Owens went to the apartment complex to confirm the call. He
spoke to both Griffin and the maintenance worker about the tip. Officer Owens
told Sergeant Barry Wright the information he learned. Wright called the local
magistrate, told him the information, and requested a search warrant. Investigator
Robert Lanier went to the magistrates office and signed the affidavit in connection
with the warrant. The magistrate then issued the search warrant.
When the search was executed, the officers recovered two containers
of crack in a bedroom drawer, $1,480.00 in cash in the same drawer, digital
scales, another bag of drugs, and hand-held scales. Tests indicated
the materials found totaled 30.99 grams of crack cocaine.
Pradubsri returned to his apartment shortly after the search was
completed. He gave a statement claiming ownership of the drugs. When asked
how long he had been selling, he stated he quit for a while, but [he] started
back two weeks ago.
Pradubsri was indicted for trafficking crack cocaine, twenty-eight to one hundred
grams, second offense. A jury convicted him of trafficking crack cocaine, ten
to twenty grams. He was sentenced to five years imprisonment.
LAW/ANALYSIS
I.
Search Warrant
Pradubsri argues the trial court erred in refusing
to suppress the evidence obtained pursuant to a defective search warrant. We
find this argument has no merit.
At the suppression hearing before trial, Sandra Griffin, the property
manager for the apartment complex, testified that a maintenance request came
from Pradubsris apartment and the maintenance supervisor went to the apartment.
When he returned to the office, the maintenance supervisor told Griffin there
were drugs and money in the apartment. Griffin then called the Richland County
Sheriffs Department.
After receiving the drug tip, the Sheriffs Department assigned the
case to Sergeant Barry Wright. Wright first sent Officer Randall Owens to the
apartment complex to confirm the call. Owens spoke to both the manager and
the maintenance worker to confirm the tip. Wright then called the local magistrate
and told him the information, including the identity of the informant and the
basis of his knowledge. He explained to the magistrate that the tipster was
scared for his own safety. Wright asked if another officer could sign the
affidavit in his place and was given permission to do this. Wright faxed the
affidavit to the magistrate. Investigator Robert Lanier went to the magistrates
office, was sworn, and signed the affidavit. When they executed the search,
the officers found 30.99 grams of crack cocaine in the apartment, in addition
to scales and cash.
At trial, Pradubsri moved to suppress the evidence seized from the
search warrant. The warrant stated the police received information from a confidential
and reliable first time informant within the past seventy-two hours that crack
cocaine was stored at Pradubsris apartment. The warrant also stated that [t]he
informant is reliable in that they [sic] have provided information to agents
that has been verified to be true.
An appellate court reviewing the decision to issue a search warrant
should decide whether the magistrate had a substantial basis for concluding
probable cause existed. State v. King, 349 S.C. 142, 561 S.E.2d 640
(Ct. App. 2002); State v. Arnold, 319 S.C. 256, 460 S.E.2d 403 (Ct. App.
1995). This review, like the determination by the magistrate, is governed by
the totality of the circumstances test. State v. Jones, 342 S.C. 121,
536 S.E.2d 675 (2000); King, 349 S.C. at 148, 561 S.E.2d at 643. The
appellate court should give great deference to a magistrates determination
of probable cause. State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997);
King, 349 S.C. at 148, 561 S.E.2d at 643.
A search warrant may issue only upon a finding of probable cause.
Weston, 329 S.C. at 290, 494 S.E.2d at 802; see also S.C. Code
Ann. § 17-13-140 (1985) (providing search warrants may be issued only upon
affidavit sworn to before the magistrate . . . establishing the grounds for
the warrant). This determination requires the magistrate to make a practical,
common-sense decision of whether, given the totality of the circumstances set
forth in the affidavit, including the veracity and basis of knowledge of persons
supplying information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place. State v. Bellamy, 336
S.C. 140, 519 S.E.2d 347 (1999); King, 349 S.C. at 150, 561 S.E.2d at
644; State v. Philpot, 317 S.C. 458, 454 S.E.2d 905 (Ct. App. 1995);
State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct. App. 1994).
Pradubsri specifically contends the warrant was
defective because Wrights testimony was not sworn. Given the totality of the
circumstances, we find no error. Officer Lanier was told of the information
and adopted it when he signed the affidavit under oath. Just because the magistrate
first heard about the information as a result of a phone conversation with an
unsworn officer does not mean another officer could not swear to the information
in a valid affidavit. Wright even sought and received permission from the magistrate
for a different officer to sign the affidavit. Further, the magistrate
was aware of the identity of the informant and the fact that the informant saw
the drugs during a maintenance visit.
II. Evidence of Prior
Convictions
Pradubsri argues the trial court erred in allowing him to be impeached
by his four prior crack cocaine convictions without properly weighing their
prejudicial effect against their probative value. We find this argument has
no merit.
Pradubsri had two 1991 convictions for possession with intent to
distribute crack cocaine and also two 1991 convictions for distribution of a
controlled substance within the proximity of a school. The defense objected
to the introduction of this evidence.
Under the South Carolina Rules of Evidence, a defendants prior
convictions may be admitted for purposes of impeachment. State v. Dunlap,
346 S.C. 312, 321, 550 S.E.2d 889, 894 (Ct. App. 2001), cert. granted
(Jan. 24, 2002). In Dunlap, we stated the following:
Rule 609(a)(1), SCRE, provides a two-part test for determining
whether a defendants prior convictions can be used by the prosecution to impeach
him: (1) the prior crime must have been punishable by death or imprisonment
in excess of one year; and (2) the court must determine that the probative value
of admitting the evidence outweighs its prejudicial effect to the accused.
The trial court must weigh the probative value of the prior convictions against
their prejudicial effect to the accused and determine, in its discretion, whether
to admit the evidence. Green v. State, 338 S.C. 428, 527 S.E.2d 98 (2000).
The following factors should be considered by the trial judge when undertaking
this analysis:
(1) The impeachment value of the prior crime;
(2) The point in time of the conviction and the witness
subsequent history;
(3) The similarity between the past crime and the charged crime;
(4) The importance of the defendants testimony; and
(5) The centrality of the credibility issue.
Id. at 433-34, 527 S.E.2d at 101; see also
State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000) (setting out the above
five factors).
Id. at 321-22, 550 S.E.2d at 894-95.
In the instant case, the prior convictions were within the ten-year
range required by Rule 609(a), SCRE. Additionally, the prior convictions were
offenses punishable by imprisonment in excess of one year.
On appeal, Pradubsri specifically contends [t]he trial court failed to use
the correct factors in weighing the probative value of these past similar crimes
versus their prejudicial effect. The record demonstrates the trial judge performed
the required test. As to the first prior conviction of distribution of a controlled
substance within the proximity of a school, the judge stated the following:
I am going to find that it would be appropriate to allow
the state to ask about that conviction. I grant it is a similar conviction,
but again it is not exactly the same one, and that tends to reduce the prejudicial
value, but I think the probative value is sufficient enough to allow it.
As to the other prior convictions, the judge made the same ruling.
The trial judge specifically noted the impeachment
and prejudicial value of the prior crimes as well as their similarity to the
present crime. Even though the judge did not specifically articulate his findings
on each of the factors, he was aware of the rule, conducted the required analysis,
and his findings were based on fact. Thus, the courts admission of Pradubsris
prior convictions was not an abuse of discretion. See Dunlap,
346 S.C. at 323, 550 S.E.2d at 895 (finding no abuse of discretion where record
revealed trial judge was aware of the requirements of Rule 609(a)(1) even though
he arguably did not specifically address each factor).
III.
Pradubsris Prior Statement
Pradubsri argues the trial court erred in refusing to redact his
statement that admitted to prior drug sales. We disagree.
The judge held an in camera hearing on Pradubsris
prior statement, which included references to his prior convictions. In the
statement, Pradubsri admitted he was charged in 1991. The statement also included
that Pradubsri was asked, How long have you been selling drugs, and he replied,
I quit for a while, but I started back a few weeks ago. The statement
was ruled admissible. Pradubsri objected to the admission of the statement.
The judge required the solicitor to redact specific references to the prior
charge but allowed the references to past sales in the last few weeks to remain
in the statement. As to the reference to recent sales, the judge stated, I
am going to allow that in. Intent is always obviously an element of any criminal
offense, including a trafficking offense.
Rulings on the admissibility of evidence are left to the sound
discretion of the trial court. State v. James, 346 S.C. 303, 551 S.E.2d
591 (Ct. App. 2001), cert. granted (Nov. 15, 2001); State v. Blassingame,
338 S.C. 240, 525 S.E.2d 535 (Ct. App. 1999). The trial courts evidentiary
rulings will therefore be reversed only upon a showing of an abuse of discretion
which results in prejudice. James, 346 S.C. at 306, 551 S.E.2d at 592;
State v. Fulton, 333 S.C. 359, 509 S.E.2d 819 (Ct. App. 1998).
Generally, South Carolina law precludes evidence
of a defendants prior crimes or other bad acts to prove the defendants guilt
for the crime charged. State v. Weaverling, 337 S.C. 460, 467, 523
S.E.2d 787, 791 (Ct. App. 1999) (citing State v. Lyle, 125 S.C. 406,
118 S.E. 803 (1923)). See also Rule 404(b), SCRE (evidence of other
crimes, wrongs, or acts is not admissible to prove character of a person in
order to show action in conformity therewith). Further, [o]ur courts view
a defendants previous distribution of drugs as a past bad act. State v.
King, 349 S.C. 142, 152, 561 S.E.2d 640, 645 (Ct. App. 2002).
Evidence of prior bad acts is admissible, however, when it
tends to establish motive, intent, the absence of mistake or accident, a common
scheme or plan embracing the commission of two or more crimes so related to
each other that proof of one tends to establish the others, or the identity
of the perpetrator. State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997);
Lyle, 125 S.C. at 416, 118 S.E. at 807; Weaverling, 337 S.C. at
467-68, 523 S.E.2d at 791; Rule 404(b), SCRE. If not the subject of a conviction,
proof of prior bad acts must be clear and convincing. Weaverling, 337
S.C. at 468, 523 S.E.2d at 791 (citing State v. Pierce, 326 S.C. 176,
485 S.E.2d 913 (1997)).
To admit prior bad acts regarding drugs under
the Lyle exception, there must be a logical relevance between the acts
in question and the purpose for introduction. King, 349 S.C. at 153,
561 S.E.2d at 645 (citing State v. King, 334 S.C. 504, 512, 514 S.E.2d
578, 582 (1999)). Under Rule 401, SCRE, evidence is relevant if it has a direct
bearing upon and tends to establish or make more or less probable the matter
in controversy. State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001);
King, 349 S.C. at 153, 561 S.E.2d at 645; State v. Hamilton, 344
S.C. 344, 543 S.E.2d 586 (Ct. App. 2001). We have previously held that [t]estimony
relating to a defendants past drug distribution activities is admissible to
establish the element of intent. King, 349 S.C. at 153, 561 S.E.2d
at 645-646 (citing State v. Gore, 299 S.C. 368, 384 S.E.2d 750 (1989)).
If there is any evidence to support the admission
of the bad act evidence, the trial judges ruling will not be disturbed on appeal.
King, 349 S.C. at 155, 561 S.E.2d at 646. Applying this standard, we
affirm the trial courts admission of this evidence. Pradubsris own statement
that he had started back selling drugs two weeks prior to his arrest was evidence
of Pradubsris intent in the instant case. There is a logical relevance between
his statement and the states purpose for introducing it, as the statement was
probative of his intent to sell the drugs. Because there was evidence to support
the admission of Pradubsris statement, we find no error.
CONCLUSION
Accordingly, based on the foregoing reasons, Pradubsris conviction
is
AFFIRMED.
HEARN, C.J., CURETON, and ANDERSON, JJ., concur.
[1]
We decide this case without oral argument pursuant to Rule 215, SCACR.