State v. Reed
787 N.W.2d 1, 2010 S.D. 66, 2010 SD 66 (2010)
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Rule of Law:
A verbal agreement to purchase a controlled substance for a future transaction, without the presence of the drugs or purchase money, constitutes mere preparation and is insufficient to establish the 'direct act' required for a conviction of criminal attempt.
Facts:
- Arthur Earl Barfield, an associate of Willie Reed, informed undercover agent Earl Miranda that he and Reed were interested in purchasing ecstasy pills.
- Miranda met with Reed at Reed's nightclub to negotiate a potential drug transaction.
- During their conversation, Reed stated he would provide the money for the purchase, described himself as 'The Man,' and agreed to a price of $7,000 for 1,000 ecstasy pills.
- Reed and Miranda discussed potential delivery options for the drugs.
- Reed assured Miranda that the $7,000 was available and that the pills could be resold within two weeks.
- Reed concluded the negotiation by stating, 'alright let’s go ahead and do it, you know what I’m say’n?'
- Throughout this interaction, no drugs were ever present or displayed, and no money was ever exchanged.
- Subsequent plans for Miranda and Barfield to meet and finalize the transaction never materialized.
Procedural Posture:
- Willie Reed was indicted for conspiracy to distribute a controlled substance and attempted possession of a controlled substance.
- At a jury trial in the circuit court, Reed moved for a judgment of acquittal at the close of the prosecution's case and again at the close of all evidence.
- The trial court denied both of Reed's motions.
- The jury acquitted Reed of the conspiracy charge but found him guilty of attempted possession of a controlled substance.
- Reed appealed his conviction for attempted possession to the Supreme Court of South Dakota.
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Issue:
Does a verbal agreement to purchase illegal drugs for a future transaction, where neither the drugs nor the purchase money are present, constitute a direct act toward the commission of possession sufficient for an attempt conviction under South Dakota law?
Opinions:
Majority - Konenkamp, Justice
No. A verbal agreement to purchase illegal drugs in the future, without an overt act such as the presence or exchange of money or drugs, constitutes mere preparation and not a direct act sufficient for an attempt conviction. To prove an attempt, the state must show a specific intent and a direct act toward the commission of the crime. While Reed conceded intent, his actions did not cross the line from mere preparation into a direct act. The court distinguished this case from federal precedents that use the broader 'substantial step' test from the Model Penal Code. In those cases, either the drugs or the purchase money were present, signaling an imminent transaction. Here, Reed only laid the groundwork; the absence of drugs, money, and a set delivery date meant the negotiations were for a future transaction and did not unequivocally demonstrate that a crime was about to be committed.
Concurring - Gilbertson, Chief Justice
While agreeing with the outcome to reverse the conviction, this opinion rejects the majority's reliance on the court's prior reasoning in State v. Disanto. The Chief Justice argues that the precedent relied upon in Disanto has since been discredited. He would reverse the conviction on simpler grounds: the defendant's conduct amounted to 'no more than a discussion in a bar about drugs.' Because no money was produced, no drugs were present, and no specific follow-up activity occurred, the events were 'just more talk' and could not constitute a criminal attempt.
Analysis:
This decision reinforces a strict interpretation of the 'direct act' requirement for criminal attempt in South Dakota, distinguishing it from the more flexible 'substantial step' test used in federal courts and other jurisdictions. By classifying a detailed verbal agreement for a future drug purchase as 'mere preparation,' the court sets a high evidentiary bar for prosecutors in attempt cases. The ruling clarifies that without some tangible action demonstrating the transaction is imminent—such as displaying purchase money or setting a concrete time and place for an immediate exchange—a conviction for attempt cannot be sustained. This creates a clear, though potentially narrow, safe harbor for individuals who engage in negotiations for criminal activity but take no further overt steps.
