State v. Peay, 2473

• Decision Date: 11 January 1996
• Docket Number: No. 2473,2473
• Citation: 321 S.C. 405,468 S.E.2d 669
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Bryant F. PEAY, Appellant. . Heard

Page 669

468 S.E.2d 669

321 S.C. 405

The STATE, Respondent, v. Bryant F. PEAY, Appellant.

No. 2473.

Court of Appeals of South Carolina.

Heard Jan. 11, 1996.

Decided March 4, 1996.

Rehearing Denied April 18, 1996.

Jonathan Harvey, of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General G. Robert DeLoach, III; and Solicitor Warren B. Giese, all of Columbia, for respondent.

CONNOR, Judge:

Bryant F. Peay appeals his conviction for trafficking in cocaine. We affirm.

I.

Peay first argues the trial court erred in refusing to charge the jury possession with intent to distribute as a lesser included offense to trafficking based upon possession.

S.C.Code Ann. § 44-53-370 (Supp.1995), provides:

(a) Except as authorized by this article it shall be unlawful for any person:

(1) to manufacture, distribute, dispense, deliver, purchase, or aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance;

(2) to create, distribute, dispense, deliver, or purchase, or aid, attempt, or conspire to create, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, deliver, or purchase a counterfeit substance.

(Emphasis added.) S.C.Code Ann. § 44-53-370(e) (Supp.1995) defines several crimes involving trafficking in various controlled substances, and provides, in part:

The offense of possession with intent to distribute described inSection 44-53-370(a) is a lesser included offense to the offenses of trafficking based upon possession described in this subsection.

(Emphasis added.)

State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995), held it is the amount of cocaine, rather than the criminal act, which triggers the trafficking statute, and distinguishes trafficking from distribution and simple possession. If the amount of cocaine, or any mixture containing cocaine, is ten grams or more, the trafficking statute is applied. Id. That is, where all the evidence indicates the defendant was dealing in quantities of cocaine over ten grams, the defendant is only entitled to charges on trafficking, not distribution or possession. Id. See also Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990) (where there is conflicting evidence as to whether the amount of the contraband is sufficient to invoke the trafficking statute, the court should submit charges to the jury on both trafficking and possession with intent to distribute; where, however, the undisputed evidence is that the amount involved exceeds the minimum trafficking amount, only the trafficking charge should be submitted to the jury); accord State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991) (citing the rule from Matthews ).

It is undisputed officers recovered 515 grams of cocaine when Peay was arrested. Because the amount of the cocaine involved in this case indisputably exceeded the minimum amount necessary to sustain a conviction for trafficking (ten grams), the trial court correctly refused Peay's request to charge possession with intent to distribute as a lesser included offense.

II.

Peay next argues the trial judge erred in refusing to require the state to enter the audio portion of the videotape taken of Peay into evidence, rather than playing the videotape without the sound. Peay claims this negated any opportunity he had for meaningful cross-examination "concerning exculpatory matter, or impeaching matter, omitted by the State." We find no reversible error.

Prior to trial, the prosecutor advised the trial judge that she intended to introduce the videotape with no volume, and then play an audiotape made from a wiretap in the car during the transaction. Peay's counsel argued he was entitled to have the jury hear the audio portion of the videotape because it "would be regarded by the court as exculpatory for the defendant." The prosecutor responded that if defense counsel "wants to put in the sound from the video, that's fine." The judge ruled defense counsel could put the audio portion into evidence in Peay's case, but the judge was not going to require the state to do so. Counsel asked the judge to reconsider because "if I've got to bring it in then, of course, I can't cross-examine it. I've got to present it in direct testimony." Counsel claimed statements were made on the audio portion which would be to the advantage of the defense. The judge declined to change his ruling.

The state introduced the videotape during its direct examination of Officer Steve Pearson. The prosecutor played the videotape to the jury and asked Pearson several questions designed to explain the tape's contents. On cross-examination, Peay's counsel asked several questions related to the videotape, but did not ask that the tape be replayed or that the audio portion be presented so that he could cross-examine Pearson. The prosecutor also asked Officer Ricky Crosby if he had seen the videotape, and again Peay did not use this opportunity to have the tape, with the audio portion, replayed for the jury during his cross-examination of Crosby.

On appeal, Peay claims the judge should have required the state to present the full context of the videotape, including the audio portion, so that Peay could have meaningful cross-examination concerning the tape. To begin with, the judge's ruling was made in limine, and was not final. Peay should have renewed his request when the tape was offered, as the judge may have changed his mind. See State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993) (although counsel raised an issue at an in limine hearing to determine the admissibility of evidence, he did not object when the witnesses actually testified; a ruling in limine is not a final ruling on the admissibility of evidence and unless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for review).

Furthermore, the judge acted within his discretion in admitting the evidence as he did. Cf. State v. Jackson, 265 S.C. 278, 217 S.E.2d 794 (1975) (when part of a conversation is put into evidence, an adverse party is entitled to prove the remainder of the conversation, so long as it is relevant, particularly when it explains or gives new meaning to the part initially recited). ¹

III.

Peay argues the trial judge erred in refusing his request to charge the jury on actual possession, constructive possession, and mere presence.

The state produced evidence Peay was a passenger in a car owned and operated by Ray Lever, Peay's employer. The car pulled into the 76 Truck Stop where Lever left the vehicle and entered a vehicle occupied by Officer Pearson, who was acting undercover. Lever and Pearson talked a while, then Lever returned to his car. Peay came over and got into Pearson's car. When Peay displayed $10,500 in cash, Pearson produced the cocaine. Pearson then handed the cocaine to Peay, who put the bag down in his pants. Pearson thereafter alerted other agents the transaction was complete. Agents arrested Lever and Peay as they attempted to drive away from the truck stop. The bag of cocaine was on the front seat.

The law to be charged to the jury is to be determined by the evidence presented at trial. State v. Lee, 298 S.C. 362, 380 S.E.2d 834 (1989). The trial judge commits reversible error when he fails to give a requested charge on an issue raised by the indictment and the evidence presented. Id. The trial judge should charge only the law applicable to the case, as the purpose of jury instructions is to enlighten the jury. Id. Providing instructions to the jury which do not fit the facts of the case may tend to confuse the jury. Id.

Possession of contraband may be either actual or constructive. State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981). Actual possession occurs when the drugs are found to be in the actual physical custody of the person charged with possession. Id. To prove constructive possession, the state must show a defendant had dominion and control, or the right to exercise dominion and control, over the drugs. Id. Because the evidence the state produced tended to show Peay had actual control over the cocaine, a charge distinguishing actual and constructive possession was unnecessary.

Likewise, a charge on mere presence is necessary only when the state attempts to establish constructive possession of contraband. State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974). Where the state alleges and proves actual possession, the court need not give a constructive possession or "mere presence" charge. See State v. Lee (the evidence produced by the state tended to show Lee exercised actual possession and control over the cocaine; thus, "mere presence" was not an instruction supported by the evidence presented by the state at trial).

Accordingly,...