State v. James, 3906.

• Decision Date: 20 December 2004
• Docket Number: No. 3906.,3906.
• Citation: 362 S.C. 557,608 S.E.2d 455
• Parties: The STATE, Respondent, v. Christopher L. JAMES, Appellant.
• Court: South Carolina Court of Appeals

362 S.C. 557

608 S.E.2d 455

The STATE, Respondent, v. Christopher L. JAMES, Appellant.

No. 3906.

Court of Appeals of South Carolina.

Heard October 13, 2004.

Decided December 20, 2004.

Rehearing Denied February 16, 2005.

Acting Chief Appellate Defender Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

BEATTY, J.:

Christopher James appeals his convictions for possession with intent to distribute crack cocaine and possession with intent to distribute crack cocaine within proximity of a school. He contends the trial court erred in denying his motion for a directed verdict given the State failed to produce substantial circumstantial evidence of the intent element. We reverse.

FACTS

On April 15, 2000, Corporal Tony Taylor, employed with the Johnston Police Department, was patrolling the town when he observed James holding an open container of beer. Because James was in violation of the town's open container ordinance, Taylor stopped his vehicle and approached James. Taylor then instructed James to put his hands on the patrol car so that he could conduct a pat down for weapons. During the pat down, Taylor felt something in James's left front pocket. When questioned about the object, James responded, "Oh, that's my rag." As James pulled the rag out of his pocket, Taylor observed two small "zip-lock" bags fall to the ground. According to Taylor, one bag was empty and the other bag contained what he believed to be eight to ten rocks of crack cocaine. A struggle ensued when both James and Taylor reached for the bags. James then broke free and absconded with the bag containing the substance. Unable to apprehend James at that time, Taylor returned to the scene and retrieved the empty bag. Drug analysis of the bag revealed that it contained crack cocaine; however, there was no weight assigned to the substance because it was essentially residue. The second bag was never recovered.

An Edgefield County grand jury indicted James for resisting arrest, possession with intent to distribute crack cocaine, and possession with intent to distribute crack cocaine within proximity of a school.

At trial, Taylor recounted the incident for the jury. He also testified extensively as to why James was charged with possession with intent to distribute as opposed to simple possession of crack cocaine. For several reasons, Taylor believed James intended to sell the crack cocaine rather than use it for his personal consumption. Taylor testified that dealers normally carry a large number of crack cocaine rocks in a single bag. He also stated that a dealer usually sells an entire bag of crack cocaine before selling from other bags. In contrast, Taylor claimed that a crack cocaine addict normally carries only one rock of crack cocaine. Additionally, he testified an addict has a distinct, unhealthy physical appearance. Because James appeared in good health, had an empty bag containing crack cocaine residue, and a bag full of what appeared to be crack cocaine rocks, Taylor concluded that James intended to sell the crack cocaine.

James did not testify at trial. Two witnesses testified on James's behalf. Naomi Coppinger, the mother of James's children, testified that James was employed and supported his family. Shelby Still, an acquaintance of James, testified she witnessed from her doorway the incident involving James and Taylor. Although Still corroborated most of Taylor's account of the incident, she testified that she did not see any bags of drugs fall out of James's pocket when he pulled out the rag. She also characterized the area as "drug-infested," and acknowledged that bags containing drugs may have been on the ground.

The jury convicted James of resisting arrest, possession with intent to distribute crack cocaine, and possession with intent to distribute crack cocaine within proximity of a school. The trial court sentenced James to time served for the resisting arrest charge and ten years imprisonment for each of the drug charges. The sentences were to be served concurrently. James appeals.

DISCUSSION

James argues the trial court erred in denying his motion for a directed verdict as to the drug charges. He contends the State failed to produce substantial circumstantial evidence that he possessed crack cocaine with intent to distribute. In conjunction with this contention, James asserts the court's failure to direct a verdict violated his Fourteenth Amendment right to due process because the evidence was not sufficient to convince a rational trier of fact that he was guilty beyond a reasonable doubt. At trial, James moved for a directed verdict after the State rested and at the close of the evidence. In each of these motions, James argued there was insufficient evidence to support the elements of the possession with intent to distribute charges. The court denied these motions. Although the court acknowledged there was no evidence as to the weight of the crack cocaine, it found the State had presented circumstantial evidence to support the charges.

In ruling on a motion for directed verdict in a criminal case, a trial court must view the evidence in the light most favorable to the State. State v. Buckmon, 347 S.C. 316, 321, 555 S.E.2d 402, 404 (2001). 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. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001). Furthermore, the court should not refuse to grant the 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).

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 substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury. State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000).

Section 44-53-375(B) of the South Carolina Code "creates a permissive inference that possession of more than one gram of crack cocaine constitutes possession with intent to distribute. However, a conviction of possession with intent to distribute does not hinge upon the amount involved. Furthermore, the statute does not mandate a reverse inference or presumption for amounts less than one gram." State v. Robinson, 344 S.C. 220, 223, 543 S.E.2d 249, 250 (Ct.App.2001) (citations omitted); S.C.Code Ann. § 44-53-375(B) (2002). 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. Matthews v. State, 300 S.C. 238, 239, 387 S.E.2d 258, 259 (1990).

As a threshold matter, the State asserts James did not properly preserve this issue for appellate review. Specifically, the State contends James did not explicitly argue the State failed to produce "substantial circumstantial evidence that he possessed cocaine with intent to distribute."

We agree with the State's assertion with respect to James's Fourteenth Amendment argument. At trial, James moved to exclude the crack cocaine evidence on the ground the weapons pat down and subsequent seizure of the drugs violated his Fourteenth Amendment right to due process. In a separate and subsequent argument, James moved for a directed verdict without referencing the Fourteenth Amendment. Even if James's post-verdict motion could be construed to encompass a Fourteenth Amendment challenge regarding the sufficiency of the evidence, such an argument was untimely and did not preserve the argument for our review. See Humbert v. State, 345 S.C. 332, 338, 548 S.E.2d 862, 865, 866 (2001)

(stating issues not raised and ruled upon in the trial court will not be considered on appeal); State v. Byram, 326 S.C. 107, 113, 485 S.E.2d 360, 363 (1997) (recognizing party may not argue one ground at trial and another on appeal); State v. Kennerly, 331 S.C. 442, 455, 503 S.E.2d 214, 221 (Ct.App.1998),

aff'd,

337 S.C. 617, 524 S.E.2d 837 (1999) ("[I]ssues not raised to the trial court in support of the directed verdict motion are not preserved for appellate review.").

Despite the failure to preserve the Fourteenth Amendment issue, we find James properly raised the sufficiency of the evidence argument to the trial court. Although James did not use the term "substantial circumstantial evidence" in his motion for a directed verdict, he argued there was insufficient evidence to support the elements of the charge of possession with intent to distribute. Moreover, it is apparent from the trial court's ruling that this ground was the basis for the motion. Significantly, the court informed the parties that it would instruct the jury "that they have to find the intent to distribute has been proven by the State beyond a reasonable doubt, and there would be a lesser included offense of possession of crack cocaine." Thus, we find the argument is properly before this court. Cf. State v. Russell, 345 S.C. 128, 132, 546 S.E.2d 202, 204 (Ct.App.2001)

(holding argument that defendant was entitled to a directed verdict on the ground the State failed to establish the corpus deliciti of DUI was preserved even though the defendant did not use the exact words where the ground for the motion was apparent from a review of the record).

We now analyze the merits of James's appeal. Clearly, the evidence was sufficient to prove James possessed crack cocaine. The...