State v. Attardo, 19951

• Decision Date: 28 January 1975
• Docket Number: No. 19951,19951
• Citation: 263 S.C. 546,211 S.E.2d 868
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. John Steven ATTARDO, Appellant.

Page 868

211 S.E.2d 868

263 S.C. 546

The STATE, Respondent, v. John Steven ATTARDO, Appellant.

No. 19951.

Supreme Court of South Carolina.

Jan. 28, 1975.

Grimes, Hinds & Cowan, Myrtle Beach, for appellant.

Sol. J. M. Long, Jr., Conway, Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. C. Tolbert Goolsby, Jr., and Staff Attys. Joseph R. Barker and Sidney S. Riggs, III, Columbia, for respondent.

NESS, Justice:

The appellant was tried and found guilty of possession of more than one ounce of marijuana with the intent to distribute. Seeking reversal, he contends that the trial judge erred in failing to charge that such possession must be knowing or intentional and by charging that the buren shifted to the appellant to prove that he, in fact, had no knowledge of what he possessed.

The conviction was based on § 32--1510.49(b) of the South Carolina Code 1962 (1973 Cum.Supp.). That section reads: 'It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.'

The forbidden act is 'knowingly or intentionally possessing certain substances.' This language evinces a legislative desire to fasten a general, but not a specific, criminal intent as an element of the offense. Appellant's contentions arise from the trial judge's efforts to adequately charge the jury concerning this criminal intent. The assaulted charge follows. 'In other words, if I went to the Post Office and got out a package and it happened that it had marijuana in it, but I didn't know that it had marijuana in it--it had been mailed to me by somebody that I didn't know, and I had no knowledge whatsoever and I could prove that I didn't know, then, that would be a defense. But, normally where a person is in possession of contraband, there is a factual presumption that he knows what it is, and the burden is then on him to prove that he did not have actual knowledge.'

We conclude that considering the instructions as a whole the jury was adequately and correctly advised as to the full meaning of the word 'knowledge'. It is to be observed that in drug cases although the element of knowledge is seldom susceptible of direct proof, it may be proved circumstantially. Eason v. United States, 281 F.2d 818 (9th Cir. 1960); United States v. Pinna, 229 F.2d 216 (7th Cir. 1956); Covarrubias v. United States, 272 F.2d 352 (9th Cir. 1959). It can be proved by the evidence of acts, declarations, or conduct of the accused from which the inference may be drawn that the accused knew of the existence of the prohibited substances. State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971); State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193, 198 (1969). Possession as heretofore defined by this Court in State v. Ellis, S.C., 207 S.E.2d 408 (1974) and State v. Tabory, 260 S.C. 355, 196 S.E.2d 111 (1973) gives rise to an inference of the possessor's knowledge of the character of the substance. The record before us does not contain any testimony, therefore, there is before us neither direct proof of knowledge, nor proof of actual physical possession. We understand from the briefs that it is conceded that the appellant was in actual possession of the controlled substance. ¹ Knowledge thus properly became a question for the jury. Eason v. United States, supra; Evans v. United States, 257 F.2d 121, 128 (9th Cir. 1958).

The appellant next assigns error to instructions given by the trial court which purported to place the burden of proof, as to lack of knowledge, upon the appellant.

A basic principle of criminal law is that the State has the burden of proof as to all of the essential elements of the crime. State v. Paulk, 18 S.C. 514 (1883); 22A C.J.S. Criminal Law § 566, p. 307; Wharton's Criminal Evidence, Vol. 1, Section 16, p. 24. Furthermore, it has been held that when knowledge is an element of the crime, it must be proved by the prosecution. Piquett v. United States, 7 Cir., 81 F.2d 75 (1936).

'Subject to the exceptions referred to above, the burden of proof rests on the prosecution at every stage of the trial and Never shifts, not even when the prosecution has established a prima facie case. On the other hand, it has been stated that the burden of proof in criminal prosecutions may be lifted from the state and cast on accused By statute, where the state has proved enough to make it Just to require accused to repel what has been proved with excuse or explanation, or the shifting of the burden will aid accuser Without subjecting accused to hardship or oppression.' 22A C.J.S. Criminal Law § 566, pp. 310--311. (Emphasis added).

The case of Communist Party of United States v. United States, 118 U.S.App.D.C. 61, 331 F.2d 807 (1963), holds that the burden of proof of an element of the offense may be shifted to the defendant where the pertinent information 'is much more readily available to the defendant than to the government,' Provided this does Not produce hardship or oppression on the accused. See Morrison v. California, 291 U.S. 82, 87--89, 54 S.Ct. 281, 78 L.Ed. 664 (1934).

The obvious rationale behind the principle that the burden of proof is on the State is the safeguard of the presumption of innocence. When the burden is shifted likewise the safeguard is removed. Hence, especially in a criminal case with its constitutional overtones of due process, instances when the burden may be shifted without prejudice must be perused with a discerning eye. Of course, affirmative defenses must be established by the party interposing them and by a preponderance of the evidence. But, it would be an extreme inconsistency to consider an element of the crime as an affirmative defense, for where the crime is not proven there is no need for defenses. In this case, knowledge, the element in question, Must be established by the State before the accused has to put forth Any defenses. Even where the State establishes a prima facie case, the burden of proof in a criminal case does Not shift but the accused is only required to overcome inference the State has established. Wallace v. United States, 281 F.2d 656 (C.A.S.C., 4 Cir. 1960). A shifting of the burden of proof would impose a significantly greater onus on the defendant and, even more significantly, it would obliterate the presumption of innocence.

Although there is no case directly on point in South Carolina, the dicta in several cases afford the same conclusion. In State v. Young, 238 S.C. 115, 119 S.E.2d 504 (1961) error was claimed in the instruction to the jury in that it might have given the inference that the burden of proof was shifted to the defendant. The portion of the charge that was objected to was as follows:

'The burden of proof is upon the State to prove the guilt and it does not shift to this defendant in this case except upon any testimony which may relate to the defense of...