State v. Cherry, No. 25902.

CourtUnited States State Supreme Court of South Carolina
Citation606 S.E.2d 475,361 S.C. 588
Decision Date29 November 2004
Docket NumberNo. 25902.
PartiesThe STATE, Respondent, v. Yukoto Eugene CHERRY, Petitioner.

361 S.C. 588
606 S.E.2d 475

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

No. 25902.

Supreme Court of South Carolina.

Heard December 2, 2003.

Decided November 29, 2004.

Rehearing Denied January 6, 2005.


361 S.C. 590
Chief Attorney Daniel T. Stacey, of S.C. Office of Appellate Defense, of Columbia; and Jeanne Allison Pearson, of Kennedy Covington Lobdell & Hickman, LLP, and Thomas F. McDow, both of Rock Hill, for Petitioner

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General Deborah R.J. Shupe, all of Columbia, and Solicitor Thomas E. Pope, of York, for Respondent.

Justice WALLER:

We granted a writ of certiorari to review the Court of Appeals' opinion in State v. Cherry, 348 S.C. 281, 559 S.E.2d 297 (Ct.App.2001). We affirm in result.

FACTS

Cherry was convicted of possession of crack cocaine with intent to distribute (PWID crack) and sentenced to five years and a twenty-five thousand dollar fine.1 The state's evidence

361 S.C. 591
at trial showed that Cherry was a passenger in the back seat of a vehicle which was stopped for going straight from a left turn lane and for failing to use a signal. Officer Parker, who stopped the car, testified that while he was writing out a citation, his backup, Officer Lubben, observed the driver of the vehicle place a pistol in a diaper bag; the driver was arrested. Officer Parker then asked the passengers to exit the vehicle. A pat-down search of Cherry revealed 8 rocks of crack cocaine in the watch pocket of his jeans.2 The officer testified that he found $322.00, mostly in twenty-dollar bills, in Cherry's left front pocket, and that crack cocaine is usually sold in twenty dollar rocks. Officer Parker also testified he did not find any drug paraphernalia or crack pipes in the car which would typically be associated with smoking rock cocaine. Lastly, Officer Parker testified that the stop was made in a high crime area known for drugs

At the close of the state's evidence, Cherry's motion for a directed verdict on PWID crack was denied. Thereafter, the court instructed the jury on "circumstantial evidence," essentially giving the charge recommended by this Court in State v. Grippon, 327 S.C. 79, 83-84, 489 S.E.2d 462, 464 (1997) to wit:

There are two types of evidence which are generally presented during a trial — direct evidence and circumstantial evidence. Direct evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact. 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 than of direct evidence. You should weigh all the evidence in the case. After weighing all the
361 S.C. 592
evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find [the defendant] not guilty.3

After the judge finished instructing the jury, Cherry requested an instruction on the difference between direct and circumstantial evidence, essentially to the effect that in considering circumstantial evidence, all of the circumstances proven must be consistent with each other and taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.4 The court declined the charge; the jury convicted Cherry of PWID crack.

On appeal, Cherry contended he was entitled to a directed verdict on the charge of PWID crack, and that the trial judge erred in refusing to give a traditional circumstantial evidence charge, pursuant to State v. Edwards supra. The case was initially decided by a three-judge panel of the Court of Appeals, which affirmed Cherry's conviction.5 An en banc rehearing yielded six separate opinions. Three judges (Stilwell, Huff and Goolsby) voted to affirm, believing that the PWID charge was properly submitted to the jury and that the circumstantial evidence charge was proper under Grippon. Four judges (Howard, Hearn, Cureton and Connor)6 believed Cherry was entitled to a directed verdict on the PWID crack charge, and three (Anderson, Shuler, and Connor7) believed Cherry should have been given a fuller circumstantial evidence charge. Cherry's conviction was affirmed. State v. Cherry, 348 S.C. 281, 559 S.E.2d 297 (Ct.App.2001).

361 S.C. 593
ISSUES
1. Was Cherry entitled to a directed verdict on the PWID crack charge?
2. Should the trial court have given a fuller circumstantial evidence charge pursuant to State v. Edwards?

1. DIRECTED VERDICT

Cherry contends there was insufficient evidence of his intent to distribute crack cocaine, such that he was entitled to a directed verdict on the PWID crack charge. We disagree.

In his majority opinion, Judge Stilwell cited the following evidence warranting submission of the case to the jury: the arrest occurred in a high crime area known for violence and drug activity; Cherry had a small bag containing eight rocks of crack cocaine on his person; he had no crack pipe or other drug paraphernalia indicating the crack cocaine was for his personal consumption; he had $322.00 cash on his person, mostly in twenty dollar bills; and Officer Parker testified a single rock of crack cocaine is typically sold for twenty dollars. Viewing this evidence in the light most favorable to the state, the Court of Appeals majority found the combination of these factors constitute evidence which would reasonably tend to prove Cherry intended to distribute crack such that the matter was properly submitted to the jury. We agree.

When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Gaster, 349 S.C. 545, 555, 564 S.E.2d 87, 92 (2002). A defendant is entitled to a directed verdict when the state fails to produce evidence of the offense charged. State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171, cert. denied, 540 U.S. 819, 124 S.Ct. 101, 157 L.Ed.2d 36 (2003); State v. Rothschild, 351 S.C. 238, 243, 569 S.E.2d 346, 348 (2002). When reviewing a denial of a directed verdict, this Court must view the evidence and all reasonable inferences in the light most favorable to the state. State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an

361 S.C. 594
appellate court must find the case was properly submitted to the jury. State v. Harris, 351 S.C. 643, 653, 572 S.E.2d 267, 273 (2002); State v. Venters, 300 S.C. 260, 264, 387 S.E.2d 270, 272-73 (1990). See also State v. Gaster, supra (on an appeal from trial court's denial of a motion for a directed verdict, appellate court may only reverse the trial court if there is no evidence to support the trial court's ruling)

When the state relies exclusively on circumstantial evidence and a motion for directed verdict is made, the circuit court is concerned with the existence or nonexistence of evidence, not with its weight. State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000). The circuit court should not refuse to grant the directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. Id. at 409, 535 S.E.2d at 127. "Suspicion" implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof. State v. Lollis, 343 S.C. 580, 541 S.E.2d 254 (2001). However, a trial judge is not required to find that the evidence infers guilt to the exclusion of any other reasonable hypothesis. State v. Ballenger, 322 S.C. 196, 470 S.E.2d 851 (1996); State v. Edwards, supra.

In Edwards, supra, we rejected the contention that in ruling on a directed verdict motion, the trial judge must grant a directed verdict unless the circumstantial evidence pointed conclusively to the defendant's guilt, to the exclusion of every other reasonable hypothesis. Instead, we held it is the trial judge's "duty to submit the case to the jury if there be any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced." 298 S.C. at 275, 379 S.E.2d at 889, citing State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924 (1955) (emphasis in original).

Here, there was evidence at trial which reasonably tended to prove Cherry's guilt of PWID, and from which a jury could fairly and logically deduce his guilt of that offense. As noted previously, the evidence relied upon to prove PWID crack was as follows: the arrest occurred in a high crime area known for violence and drug activity; Cherry had a small bag containing eight rocks of crack cocaine on his person; he had no crack pipe or other drug paraphernalia indicating the crack cocaine

361 S.C. 595
was for his personal consumption; he had $322.00 cash on his person, mostly in twenty dollar bills; and Officer Parker testified a single rock of crack cocaine is typically sold for twenty dollars.8 We find this combination of factors is sufficient for the jury to infer an intent to distribute. Accordingly, the Court of Appeals' opinion is affirmed on this issue.

2. CIRCUMSTANTIAL EVIDENCE CHARGE

Cherry asserts the trial court erred in refusing to instruct the jury the law of circumstantial evidence, as set forth by this Court in State v. Littlejohn, supra, and State v. Edwards, supra. We disagree.

Traditionally, when charging the jury in a circumstantial evidence case, the following was the recommended instruction:

every 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
...

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185 practice notes
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • May 18, 2007
    ...its weight. State v. Weston, 367 S.C. 279, 625 S.E.2d 641 (2006); Sellers v. State, 362 S.C. 182, 607 S.E.2d 82 (2005); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. Rosemond, 356 S.C. 426, 430, 589 S.E.2d 757, 758-59 (2003); State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (20......
  • State v. Brannon, No. 4428.
    • United States
    • Court of Appeals of South Carolina
    • July 18, 2008
    ...A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004) (citing State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171 (2003)); State v. Crawford, 362 S.C. 627, 633, 608 ......
  • State v. Lee-Grigg, No. 4237.
    • United States
    • Court of Appeals of South Carolina
    • April 16, 2007
    ...A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004) (citing State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171 (2003)); State v. Crawford, 362 S.C. 627, 633, 608 ......
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • June 27, 2005
    ...for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 If there is any direct evidence or substantial circumstantial evidence r......
  • Request a trial to view additional results
184 cases
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • May 18, 2007
    ...its weight. State v. Weston, 367 S.C. 279, 625 S.E.2d 641 (2006); Sellers v. State, 362 S.C. 182, 607 S.E.2d 82 (2005); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. Rosemond, 356 S.C. 426, 430, 589 S.E.2d 757, 758-59 (2003); State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (20......
  • State v. Brannon, No. 4428.
    • United States
    • Court of Appeals of South Carolina
    • July 18, 2008
    ...A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004) (citing State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171 (2003)); State v. Crawford, 362 S.C. 627, 633, 608 ......
  • State v. Lee-Grigg, No. 4237.
    • United States
    • Court of Appeals of South Carolina
    • April 16, 2007
    ...A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004) (citing State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171 (2003)); State v. Crawford, 362 S.C. 627, 633, 608 ......
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • June 27, 2005
    ...for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 If there is any direct evidence or substantial circumstantial evidence r......
  • Request a trial to view additional results

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