State v. Cherry, No. 3406.

• Court: Court of Appeals of South Carolina
• Writing for the Court: STILWELL, J.
• Docket Number: No. 3406.
• Parties: The STATE, Respondent, v. Yukoto Eugene CHERRY, Appellant.
• Decision Date: 13 November 2001

348 S.C. 281
559 S.E.2d 297

The STATE, Respondent,
v.
Yukoto Eugene CHERRY, Appellant

No. 3406.

Court of Appeals of South Carolina.

Heard June 5, 2001.

Decided November 13, 2001.

Rehearing Denied February 22, 2002.

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Jeanne A. Pearson, of Kennedy, Covington, Lobdell & Hickman; Thomas F. McDow, both of Rock Hill; and Chief Attorney Daniel T. Stacey, of SC Office of Appellate Defense, of Columbia, for appellant

348 S.C. 283

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Toyya Brawley Gray, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent

STILWELL, J.

Yukoto Eugene Cherry appeals his conviction for possession of crack cocaine with intent to distribute. Cherry raises six issues on appeal. A three judge panel of this court was unanimous in rejecting four of the six issues raised by Cherry, but was divided on the remaining two. One judge voted to affirm the conviction, one voted to reverse based on Cherry's entitlement to a directed verdict, and the third voted to reverse and grant a new trial based on the inadequacy of the jury charge. See State v. Cherry, Op. No. 3296, 2001 WL 125167 (S.C. Ct.App. filed Feb. 12, 2001) (Shearouse Adv. Sh. No. 6 at 72). Because at least two judges of the panel voted to affirm with respect to each issue, this division effectively resulted in an affirmance of Cherry's conviction.

This court granted en banc review, limited to reconsideration of whether the State presented any direct or substantial circumstantial evidence to establish Cherry's intent to distribute crack cocaine and whether the trial court erred by failing to give a complete jury charge on circumstantial evidence. As to the four issues about which there was no dispute on the three judge panel, that initial panel decision remains unmodified. The opinions of the three judge panel on the directed verdict and jury charge issues are hereby vacated by this en banc disposition. The result of the en banc reconsideration is once again a divided court, with three of our members believing the conviction should be affirmed on both issues, four believing that Cherry was entitled to a directed verdict of not guilty, and two convinced that the circumstantial evidence charge was insufficient. Thus, pursuant to S.C.Code Ann. § 14-8-90 (Supp.2000), this division results in an affirmance of Cherry's conviction. § 14-8-90 (When the Court of Appeals sits en banc, "a concurrence of six of the judges is necessary for a reversal of the judgment below.").

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This author's original opinion on the two issues upon which en banc reconsideration was granted remains unchanged and, with minor modifications, is repeated herein

FACTS/PROCEDURAL BACKGROUND

Just before midnight on July 31, 1998, Officer Steven Parker of the Rock Hill Police Department stopped a car driven by Cherry's sister for two traffic violations. Cherry was a passenger in the back seat. While Officer Parker sat in his patrol car writing citations, a backup officer arrived and saw Cherry's sister stuff a pistol into a diaper bag. After arresting her, the officers ordered the passengers out of the car to check for additional weapons. Cherry had no weapons, but Officer Parker discovered a small bag containing approximately eight rocks of crack cocaine in his watch pocket. He also seized $322 in cash from Cherry.

Cherry was indicted for possession of crack cocaine with intent to distribute and possession of crack cocaine within proximity of a public park. At the conclusion of the State's case, the trial court granted Cherry's motion for a directed verdict on the charge of possession within proximity of a public park. The court denied his motion for a directed verdict on the charge of possession with intent to distribute and the jury found him guilty.

DISCUSSION

Directed Verdict

Cherry argues the trial court improperly refused his motion for a directed verdict on the charge of possession with intent to distribute because there was no evidence he intended to distribute the crack cocaine. We disagree.

When considering a motion for a directed verdict in a criminal case, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999); State v. Morgan, 282 S.C. 409, 411, 319 S.E.2d 335, 336 (1984). It has been recently held that this remains true even when the State relies exclusively on circumstantial evidence. State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000). Some cases have

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held that if the State presents any evidence which reasonably tends to prove the defendant's guilt, or from which the defendant's guilt could be fairly and logically deduced, the case must go to the jury. Burdette, 335 S.C. at 46, 515 S.E.2d at 531; State v. Poindexter, 314 S.C. 490, 493, 431 S.E.2d 254, 255-56 (1993). Other cases indicate that where the evidence is circumstantial, there must be substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which his guilt may be fairly and logically deduced. State v. Martin, 340 S.C. 597, 602, 533 S.E.2d 572, 574 (2000) (citing State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996)). Still other cases indicate some distinction between direct evidence and circumstantial evidence in considering whether a directed verdict should be granted. State v. Patterson, 337 S.C. 215, 232, 522 S.E.2d 845, 853 (Ct.App.1999) ("If there is any direct evidence or any substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced, an appellate court must find the case was properly submitted to the jury." (emphasis added)) (citing State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999)). If the trial court must make a determination that the circumstantial evidence is substantial, that would seem to require a weighing of the evidence which, of course, all cases agree, is forbidden.

Clearly, the trial judge should grant a directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. Martin, 340 S.C. at 602, 533 S.E.2d at 574 (citing State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978)). It is equally clear, however, that on appeal from the denial of a motion for directed verdict, this court must view the evidence in the light most favorable to the State. Burdette, 335 S.C. at 46, 515 S.E.2d at 531.

The State submitted testimony that Cherry's arrest occurred in a high crime area known for violence and drug activity. Cherry had a small bag containing approximately eight rocks of crack cocaine on his person. He had no crack pipe or other drug paraphernalia with him indicating the crack cocaine was for his personal consumption. He did, however, have $322 cash on his person in mostly twenty dollar bills. Officer Parker testified a single rock of crack cocaine is

348 S.C. 286

typically sold for twenty dollars. Viewing this evidence in the light most favorable to the State, as we must, and without passing on the weight of the evidence, the combination of these factors constitute evidence which would reasonably tend to prove Cherry intended to distribute the crack cocaine and, thus, justifies the trial court's decision to submit the case to the jury for its determination.¹

Circumstantial Evidence Instruction

During its jury charge, the trial court issued the circumstantial evidence instruction recently approved and recommended by our supreme court in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997). After the jury was charged, defense counsel requested the court issue Judge Ervin's charge on the difference between direct and circumstantial evidence. Tom J. Ervin, Ervin's South Carolina Requests to Charge-Criminal § 3-4 (1994). The court refused to re-charge the jury as requested.

We note that Judge Ervin's model charge on circumstantial evidence is similar to the traditional language our supreme court approved in State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989). The traditional charge distinguishes between direct and circumstantial evidence, whereas the new charge adopted in Grippon specifically states there is no legal distinction between the two types of evidence. Compare Edwards, 298 S.C. at 275, 379 S.E.2d at 889 ("`[E]very circumstance relied upon by the State [must] be proven beyond a reasonable doubt; and ... all of the circumstances so proven be consistent with each other and taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.'") (quoting State v. Littlejohn, 228 S.C. 324, 328, 89 S.E.2d 924, 926 (1955)), with Grippon, 327 S.C. at 83-84, 489 S.E.2d at 464 ("The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence

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than of direct evidence."). Although the supreme court noted in Grippon, 327 S.C. at 82, 489 S.E.2d at 463, and reiterated in State v. Needs, 333 S.C. 134,156 n. 13, 508 S.E.2d 857, 868 n. 13 (1998) and State v. Graddick, 345 S.C. 383, 388, 548 S.E.2d 210, 212 (2001), that the traditional Edwards charge is still a legally correct and appropriate jury instruction, we cannot fault the trial court for utilizing a charge recently specifically approved by the supreme court. It obviously is a correct statement of the law of circumstantial evidence. "The judge properly instructs the jury if he adequately states the applicable law. A jury charge which is substantially correct and covers the law does not require reversal." State v. Ezell, 321 S.C. 421, 425, 468 S.E.2d 679, 681 (Ct.App.1996) (citation omitted). We find no error.

CONCLUSION

We conclude the trial court properly submitted Cherry's charge to the jury and committed no error in instructing the...