State v. Barno

Decision Date10 November 2010
Docket Number2010-UP-500
PartiesThe State, Respondent, v. Reginald Barno, Appellant.
CourtSouth Carolina Court of Appeals

UNPUBLISHED OPINION

Submitted October 1, 2010.

Appeal From Sumter County R. Ferrell Cothran, Jr., Circuit Court Judge.

Appellate Defender Robert M. Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark R Farthing, all of Columbia; and Solicitor C. Kelly Jackson, of Sumter, for Respondent.

PER CURIAM.

Reginald Barno was convicted of possession of crack cocaine and possession of marijuana. Barno appeals, asserting the trial judge erred in giving a jury charge on inference that was burden shifting. We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

On September 30, 2008, investigators with the Sumter County Sheriff's Office were observing the residence of Wayne Barkley, who had previously been arrested on a drug charge when appellant pulled up in a black Nissan. Barkley approached the vehicle, and it appeared something was exchanged between the men. When the officers ran the tag on the Nissan, it came back as belonging to a Volvo. After Barno pulled away, the officers followed behind and initiated a traffic stop. When asked for his driver's license, appellant indicated he did not have one. Barno was then detained and read his Miranda[2] rights. The officers then noticed a white rock substance in plain view in the front seat of the car that tested positive for crack cocaine. When one of the officers asked whose crack it was, appellant stated it was his. Later, while being booked into the detention center, a small baggy of marijuana was found in Barno's pants pocket.

At the close of the evidence, the trial judge indicated his intent to charge that possession may be inferred when a substance is found on property under the control of the defendant, and that such inference is simply an evidentiary fact to be considered by the jury. Barno objected to the proposed charge, arguing an instruction including the word "inferred or inference" would be burden shifting, would create a comment on the facts, and would deny him due process. Specifically, trial counsel argued as follows:

- - if it's the court's intention to use the word inferred or inference at any place in your charge, I'm going to respectfully object and ask that you do not do that feeling that any time the Court gives the jury an instruction as to inference, that that we would argue is respectfully - - I know it's often done generally done in some cases, but we would respectfully urge the Court to find that that is burden shifting, that that is creating a comment on the facts by the bench which is not permitted under the rules, and that ultimately it's a denial of due process and that it's violative of the constitutional right to a fundamentally fair trial.
In that, Your Honor, if they're told that they may infer something by anything, then why is that not a comment on the facts? I mean, the general nature of the violation of the contraband statute, they have got that.
Why is it we're telling them that they can find something if they find something else or that - - that we feel - - any time the word inference is used but may be inferred, that phrase, we feel that that's burden shifting and improper comment on the facts and denial of due process.
And we urge the Court not to do that and let you know that it would be our intention to respectfully except should the Court choose to do that.

(emphasis added). The trial judge then replied:

And it's under State v. Adams, 291 S.C. 130, it is exactly where that language comes from. It is in every charge book in every Judge in the State of South Carolina dealing with possession of crack cocaine as well as possession of marijuana.
But it - - it does not comment on the facts in my opinion. It simply it is the law in this State. And it simply says that a knowledge - - and possession may be inferred when the substance is found on the property under the defendant's control. However, this inference is simply an evidentiary fact to be taken by you.
I think that is the law. And I'm going to charge it formally, but I note your objection.

The trial judge then charged as he indicated, stating as follows:

The defendant's knowledge and possession may be inferred when... a substance is found on the property under the defendant's control.
However, this inference is simply an evidentiary fact to be taken into consideration by you along with the other evidence in this case and to give the weight you decide it should have.

Trail counsel excepted to this instruction as follows:

The third exception, Your Honor, would be inference. You did use the word. I think it was in the context of something to be inferred from control of the premises on which the drugs were found. So I respectfully except to that as being burden shifting for those reasons I told you before the break.

(emphasis added). The trial judge declined to recharge on the matter, determining the inference instruction was the law of this state. After deliberations began, the jury sent a note asking whether the defendant had "to know that the drugs were in the car to be guilty" and what the court meant "by possession." The trial judge recharged the jury that the State was required to prove beyond a reasonable doubt that defendant knowingly and intelligently possessed the drugs, that to prove possession, the State was required to prove beyond a reasonable doubt that the defendant had the power and intent to control the disposition of the drugs, and that "defendant's knowledge and possession may be inferred when a substance is found on the property under the defendant's control" but this inference was simply an evidentiary fact to be considered along with the other evidence and "to be given whatever weight [the jury] decide[d] it should have."

LAW/ANALYSIS

On appeal, Barno contends that the law provides, in order for an inference to be considered permissive, the jury must be instructed they are free to accept or reject the inference. Barno asserts, because the trial court failed to specifically instruct the jury they could reject the inference, the charge was burden shifting, in violation of his due process rights.

We find the issue as argued on appeal is not preserved for our review. Although defense counsel objected to the proposed charge and took exception to the instruction given by the court, the basis for this objection was not the trial court's failure to specifically include language that the jury was free to accept or reject this permissive inference of knowledge and possession. Rather, counsel's sole argument was that any instruction including the word "inferred" or "inference" would be burden shifting, would be a comment on the facts, and would deny him due process. Counsel never requested the trial judge include language that the jury was free to accept or reject the permissive inference. Further, appellant does not challenge on appeal the language of the charge as being improper because...

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