State v. Barno
Decision Date | 10 November 2010 |
Docket Number | 2010-UP-500 |
Parties | The State, Respondent, v. Reginald Barno, Appellant. |
Court | South 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UNPUBLISHED OPINION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.
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]
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:
(emphasis added). The trial judge then replied:
The trial judge then charged as he indicated, stating as follows:
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."
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.
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