State v. Pradubsri

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 Appeal From Richland County Marc H. Westbrook, Circuit Court Judge Unpublished Opinion No. 2003-UP-68 Submitted January 13, 2003 – Filed January 22, 2003 AFFIRMED Assistant Appellate Defender Robert M. Pachak, of Columbia, for Appellant.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 Pradubsri’s 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 Sheriff’s 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 magistrate’s 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 Pradubsri’s 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 Sheriff’s Department. After receiving the drug tip, the Sheriff’s 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 magistrate’s 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 Pradubsri’s 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 magistrate’s 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 Wright’s 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 defendant’s 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 defendant’s 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 defendant’s 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 court’s admission of Pradubsri’s 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. Pradubsri’s 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 Pradubsri’s 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 court’s 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 defendant’s prior crimes or other bad acts to prove the defendant’s 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 defendant’s 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 defendant’s 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 judge’s 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 court’s admission of this evidence. Pradubsri’s own statement that he had started back selling drugs two weeks prior to his arrest was evidence of Pradubsri’s intent in the instant case. There is a logical relevance between his statement and the state’s 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 Pradubsri’s statement, we find no error. CONCLUSION Accordingly, based on the foregoing reasons, Pradubsri’s conviction is AFFIRMED. HEARN, C.J., CURETON, and ANDERSON, JJ., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.