State v. Elmore, 4082.

Decision Date21 February 2006
Docket NumberNo. 4082.,4082.
Citation628 S.E.2d 271
PartiesThe STATE, Respondent, v. David Bernard ELMORE, Appellant.
CourtSouth Carolina Court of Appeals

C. Rauch Wise and Robert J. Tinsley, both of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Special Assistant Attorney General Amie L. Clifford, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

KITTREDGE, J.:

David Bernard Elmore appeals his conviction and sentence for possession with intent to distribute marijuana. Elmore argues the trial court erred in failing to grant his motion for a directed verdict and erred in ruling the State could use two prior drug convictions for impeachment if he testified. We affirm.

FACTS

On December 16, 2001, Deputies Mike Rushton and Chuck Padgett of the Saluda County Sheriff's Office were on patrol on Highway 178 in Saluda County. The deputies observed a white Cadillac cross the center line. The deputies suspected the driver of the Cadillac was driving under the influence and pulled the car over.

After the car was pulled over, the deputies noticed several bags fly out of the vehicle's passenger side window. Deputy Rushton approached the car and asked the driver (and sole occupant), David Bernard Elmore, for his driver's license. Elmore did not have a license and was arrested for driving without a license.

The deputies searched Elmore, the car, and the ground around the car. Eight small plastic sandwich bags, each containing a green leafy substance, were found on the side of the road; one larger bag, containing a similar substance, was found in the Cadillac's center console. Elmore was carrying $653 in cash in his pockets. The deputies found no marijuana residue, no evidence of marijuana being smoked in the car, and no drug paraphernalia — "no cigarette lighters, no matches, no marijuana smoking pipes or anything of that nature ..., no rolling papers, [and] no blunts."

Testing confirmed the leafy substance was marijuana, and Deputy Rushton testified that the street value of each bag ranged from ten to thirty dollars. The total weight of the marijuana was 27.55 grams. Investigator Joe Collier testified that four of the bags were virtually identical in weight. Elmore was charged with possession with intent to distribute marijuana.

At the close of the State's case, Elmore argued the State failed to prove the element of intent and moved for a directed verdict. The trial court found the State "submitted evidence that could be viewed by the jury as intent to distribute" and denied the motion.

The trial court then informed Elmore of his right to testify and explained that his prior convictions may be "brought up" if he testified. The Solicitor informed the trial court of the State's desire to question Elmore about two prior drug convictions: a 1995 conviction for possession of crack cocaine; and a 2001 conviction for possession with intent to distribute marijuana. Elmore contended the convictions were prejudicial and objected to their admission. Specifically, Elmore argued the marijuana conviction should not be allowed because it is "unduly similar" and cited Green v. State, 338 S.C. 428, 527 S.E.2d 98 (2000), and State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000). The trial court summarily noted the objection and found the State could ask about both convictions if Elmore testified. Elmore elected not to testify.

Elmore was found guilty of possession with intent to distribute marijuana and sentenced. This appeal followed.

LAW/ANALYSIS
I. Denial of Motion for a Directed Verdict

Elmore argues the trial court erred in not granting a directed verdict because there was insufficient evidence to establish an intent to distribute marijuana. We disagree.

"On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State." State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001). The trial court, in a directed verdict motion, is concerned with the existence or nonexistence of evidence, not with its weight. State v. Cherry, 361 S.C. 588, 594, 606 S.E.2d 475, 478 (2004). This standard remains constant even when the State relies exclusively on circumstantial evidence. Id. "A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged." McHoney, 344 S.C. at 97, 544 S.E.2d at 36. A trial court should grant a directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000). However, "[i]f there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury." McHoney, 344 S.C. at 97, 544 S.E.2d at 36.

Section 44-53-370(d)(3) of the South Carolina Code (Supp.2004) creates a "permissive inference to be considered by the jury" that possession of more than twenty-eight grams or one ounce of marijuana constitutes possession with intent to distribute.1 State v. Andrews, 324 S.C. 516, 522, 479 S.E.2d 808, 812 (Ct.App.1996). However, "conviction of possession with intent to distribute does not hinge upon the amount involved." State v. Adams, 291 S.C. 132, 134, 352 S.E.2d 483, 485 (1987). "Possession of any amount of controlled substance coupled with sufficient indicia of intent to distribute will support a conviction for possession with intent to distribute." State v. James, 362 S.C. 557, 561-62, 608 S.E.2d 455, 457 (Ct.App.2004).

Although we find no South Carolina precedent directly on point, we do find instructive two cases with overlapping features. In State v. Robinson, 344 S.C. 220, 224, 543 S.E.2d 249, 250 (Ct.App.2001), and State v. Cherry, 361 S.C. 588, 594-95, 606 S.E.2d 475, 478 (2004), sufficient evidence of the intent to distribute was found to withstand motions for directed verdicts. In Robinson, the court found sufficient indicia of intent to distribute when the State presented testimony from police officers that a user of cocaine would not typically possess seven rocks of cocaine, that a dealer is not typically found with scales or individual baggies in his possession, and that a dealer typically wraps crack cocaine as Robinson did. Robinson, 344 S.C. at 224, 543 S.E.2d at 250.

In State v. Cherry, 348 S.C. 281, 559 S.E.2d 297 (Ct.App.2001) (en banc), aff'd in result, 361 S.C. 588, 606 S.E.2d 475 (2004), this court found sufficient evidence of the intent to distribute to withstand a motion for a directed verdict where: (1) the arrest occurred in a high crime area; (2) defendant possessed eight rocks of crack cocaine; (3) defendant possessed no drug paraphernalia; (4) defendant possessed $322 in cash, predominantly in twenty dollar bills; and (5) testimony provided that a single rock of crack cocaine is typically sold for twenty dollars. Cherry, 348 S.C. at 285, 559 S.E.2d at 299. Our supreme court granted a writ of certiorari to review this court's opinion in Cherry, and the majority opinion affirmed this issue,2 holding the above combination of factors was sufficient to submit the charge of possession with intent to distribute to the jury. Cherry, 361 S.C. at 594-95, 606 S.E.2d at 478. The majority further held that, when reviewing a directed verdict motion, the trial court is not required to find the evidence infers guilt to the exclusion of any other reasonable hypothesis. Id. at 594, 606 S.E.2d at 478.

Elmore argues the facts of this case more closely mirror those in State v. James, 362 S.C. 557, 608 S.E.2d 455 (Ct.App.2004), where this court found evidence was insufficient to submit to the jury a possession with intent to distribute charge. We disagree.

We believe the facts of the case before us more closely line up with those in Robinson and Cherry. The overlapping features include the number of "baggies" containing drugs, the method of individual packaging, the amount of cash found on Elmore, and the complete absence of drug paraphernalia. Conversely, James is readily distinguishable. In James, two of the reasons this court found insufficient evidence of intent were: (1) James did not have a large amount of cash on his person, he only possessed thirty-seven dollars; and (2) the amount of crack cocaine possessed by James was speculative, because the bag containing the crack cocaine was never recovered for evidentiary testing and was only seen briefly by the arresting police officer. James, 362 S.C. at 565, 608 S.E.2d at 459.

Viewing the evidence in the light most favorable to the State, as we must, we find the trial court properly denied the directed verdict motion, for a jury question was presented on the element of intent. We construe Elmore's final brief as tacitly acknowledging the presence of a jury question. As Elmore puts it: "The fact that marijuana is commonly sold in small packages also means that marijuana is commonly purchased in small packages. With only nine small bags, the evidence is just as susceptible as establishing ... Elmore had purchased the marijuana in small bags." (emphasis added). We agree that the evidence is reasonably susceptible of two inferences—one of which is consistent with the State's theory of possession of marijuana with intent to distribute, especially in view of the commonality of factors shared with Robinson and Cherry.3

II. Admissibility of Prior Convictions

Elmore asserts the trial court committed reversible error in ruling the State could impeach him through the use of two prior drug convictions if he testified. We disagree based on supreme court precedent.

"[W]hen the trial judge chooses to make a preliminary ruling on the admissibility of prior convictions to impeach a defendant and the defendant does not testify at trial, the claim of...

To continue reading

Request your trial
17 cases
  • State v. Moore, Opinion No. 2008-UP-135 (S.C. App. 3/4/2008), Opinion No. 2008-UP-135.
    • United States
    • South Carolina Court of Appeals
    • March 4, 2008
    ...455, 458 (Ct. App. 2004) (emphasis added) (citing Cherry, 348 S.C. at 285, 559 S.E.2d at 299); see also State v. Elmore, 368 S.C. 230, 628 S.E.2d 271 (Ct. App. 2006) cert. denied Apr. 5, 2007 (trial court properly denied directed verdict motion on charge of PWID marijuana where search found......
  • State v. Moore
    • United States
    • South Carolina Court of Appeals
    • March 4, 2008
    ... ... 458 (Ct. App. 2004) (emphasis added) (citing Cherry, ... 348 S.C. at 285, 559 S.E.2d at 299); see also ... State v. Elmore, 368 S.C. 230, 628 S.E.2d 271 (Ct. App ... 2006) cert. denied Apr. 5, 2007 (trial court ... properly denied directed verdict motion on ... ...
  • State v. Gilmore
    • United States
    • South Carolina Court of Appeals
    • November 2, 2011
    ...decline to address them. As to whether the judge erred in excluding evidence of Gilmore's prior conviction: State v. Elmore, 368 S.C. 230, 238, 628 S.E.2d 271, 275 (Ct.App.2006) (adhering to the rule that when a defendant does not testify he fails to preserve pretrial rulings on impeachment......
  • State v. Heller
    • United States
    • South Carolina Court of Appeals
    • June 13, 2012
    ...the probative value of a prior conviction under Rule 609(a)(1), SCRE, against the prejudicial effect. State v. Elmore, 368 S.C. 230, 239, 628 S.E.2d 271, 275 (Ct.App.2006). Here, the trial court simply denied Heller's motion to exclude the prior convictions without performing an on-the-reco......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT