State v. Elmore, No. 4082.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Kittredge
• Citation: 628 S.E.2d 271
• Parties: The STATE, Respondent, v. David Bernard ELMORE, Appellant.
• Docket Number: No. 4082.
• Decision Date: 21 February 2006

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628 S.E.2d 271 The STATE, Respondent,
v.
David Bernard ELMORE, Appellant. No. 4082. Court of Appeals of South Carolina. Submitted January 1, 2006. Decided February 21, 2006. Rehearing Denied April 20, 2006.

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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

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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

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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...