State v. Perry

• Decision Date: 26 April 2004
• Docket Number: No. 3783.,3783.
• Citation: 358 S.C. 633,595 S.E.2d 883
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Ernest Dwight PERRY, Appellant.

358 S.C. 633

595 S.E.2d 883

The STATE, Respondent, v. Ernest Dwight PERRY, Appellant.

No. 3783.

Court of Appeals of South Carolina.

Submitted December 8, 2003.

Decided April 26, 2004.

Senior Assistant Appellate Defender Wanda P. Hagler, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor William Townes Jones, of Greenwood, for Respondent.

CURETON, A. J.:

A jury convicted Ernest Dwight Perry of trafficking in marijuana, manufacturing marijuana, manufacturing marijuana on the lands of another, and resisting arrest. The trial judge sentenced Perry to concurrent sentences of twenty-five years for trafficking in marijuana, five years for manufacturing marijuana, five years for entry on another's land for the purpose of cultivating marijuana, and a consecutive sentence of one year for resisting arrest. Additionally, he was ordered to pay a fine of $25,000 for trafficking in marijuana. Perry appeals, arguing the trial judge erred: (1) in failing to direct a verdict as to the charges of trafficking in marijuana and manufacturing marijuana; (2) in denying his motion to require the State to elect to prosecute either manufacturing marijuana or entry on another's land for the purpose of cultivating marijuana; and (3) in denying his motion to quash the indictment charging him with assault on a police officer while resisting arrest. We affirm.

FACTS

On July 21, 2000, the Newberry County Sheriff's Office conducted an eradication flight over different areas of the county in an attempt to locate marijuana. During this flight, Investigator Wesley Boland spotted eight to ten plots of what appeared to be marijuana growing near Prosperity. He also saw hoses running through the woods to each of the plots. The hoses ran from a pump house behind Perry's residence. Officers with the Newberry County Sheriff's Department and the Newberry Police Department approached the house and found Perry at the pump house. Based on their investigation, the officers arrested Perry. As Officer Lawson was attempting to get Perry into the police car, Perry became belligerent and kicked Lawson in the right shin.

Subsequently, the officers obtained a search warrant and executed it on Perry's house and property. The water hoses from the pump house led to fourteen different plots on the adjacent property. Officer Robert Dennis testified he recovered several bags of marijuana from inside the house. Wayne Nichols owned the property where all the plants were growing. However, he testified he knew nothing about the marijuana and had not given Perry permission to grow marijuana on his property. While conducting the search of the property, the officers pulled up 456 marijuana plants. During the search, the officers inventoried, tagged, and processed the plants for future testing. Shortly thereafter, the officers transported the plants to a secure location.

At trial, Investigator Max Pickelsimer was qualified as an expert to analyze marijuana. He testified that he received 456 stalks of marijuana and analyzed thirty-four of the stalks. He explained the stalks were wet when they were bundled together and, as a result, they became stuck together as they dried. In attempting to separate them, he was able to get thirty-four plants that were strong enough to analyze, and that all thirty-four plants tested positive for marijuana.

Perry did not testify at trial. The jury convicted him of trafficking in marijuana, manufacturing marijuana, manufacturing marijuana on the lands of another, and resisting arrest. Perry appeals.

DISCUSSION

I. Directed Verdict

Perry contends the trial judge erred in denying his motion for a directed verdict on the charges of trafficking in marijuana and manufacturing marijuana. We disagree. On appeal from the denial of a directed verdict in a criminal case, this Court must view the evidence in the light most favorable to the State. State v. Al-Amin, 353 S.C. 405, 411, 578 S.E.2d 32, 35 (Ct.App.2003); State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct.App.2002). When ruling on a motion for a directed verdict, the trial judge is concerned with the existence or nonexistence of evidence, not its weight. State v. Wilds, 355 S.C. 269, 274, 584 S.E.2d 138, 140 (Ct.App. 2003). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this 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). On the other hand, if the State fails to produce evidence of the offense charged, a defendant is entitled to a directed verdict. State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001); State v. Padgett, 354 S.C. 268, 271, 580 S.E.2d 159, 161 (Ct.App.2003),cert. denied (Sept. 24, 2003).

A. Trafficking in Marijuana

Perry argues he was entitled to a directed verdict on the charge of trafficking in marijuana because the State failed to present evidence that he was in actual or constructive possession of 100 to 1000 marijuana plants, the quantity element of the offense. Specifically, he claims the State failed to establish this element of the offense given it only tested thirty-four of the seized plants.

A person is guilty of trafficking in marijuana if he is in actual or constructive possession of 100 to 1000 marijuana plants. S.C.Code Ann. § 44-53-370(e)(1)(b) (2002)¹; see State v. Muhammed, 338 S.C. 22, 27, 524 S.E.2d 637, 639 (Ct.App. 1999)

("Possession requires more than mere presence. The State must show the defendant had dominion or control over the thing allegedly possessed or had the right to exercise dominion or control over it.").

Viewed in the light most favorable to the State, we find there was evidence that reasonably tended to prove Perry's guilt as to the charge of trafficking in marijuana. Investigator Salazar testified that 456 marijuana plants were seized from property that was adjacent to Perry's residence. The hoses on the plots originated from a pump house behind Perry's residence. Police Chief Swindler testified he recognized all the plants as marijuana based on the appearance and the smell of the plants. Investigator Pickelsimer testified all the plants appeared to be of the same type and that the sample thirty-four plants all tested positive for marijuana. Based on this evidence, it could be fairly and logically deduced that Perry was in actual or constructive possession of 100 to 1000 marijuana plants. See State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000)

(stating in reviewing the refusal to grant a directed verdict in a criminal case, the evidence is viewed in the light most favorable to the State to determine whether there is any direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused, or from which guilt may be fairly and logically deduced).

Our decision is supported by the holdings of several state and federal courts. For example, the Kentucky Court of Appeals upheld a conviction for trafficking in marijuana when the State presented evidence that only six of the ninety-eight plants that had been seized were tested and found to be positive for marijuana. Taylor v. Commonwealth, 984 S.W.2d 482, 484-85 (Ky.Ct.App.1998). Because the weight or amount of the marijuana was an element of the trafficking offense with which he was charged, Taylor argued that each plant used to determine the total weight should have been tested. The Court rejected this argument, finding there was no evidence that the ninety-two plants that were not tested were different from the six plants that were tested. Id. (relying on and discussing state and federal cases which held that the prosecution is not required to test samples from all individual portions of a controlled substance when the charged offense relates to a certain amount of a controlled substance).

Similarly, the Fourth Circuit Court of Appeals has held that the prosecution need not produce the results of any testing to survive a directed verdict motion for growing marijuana. United States v. Fry, 787 F.2d 903, 906 (4th Cir.),cert. denied, 479 U.S. 861, 107 S.Ct. 209, 93 L.Ed.2d 139 (1986). In Fry, the defendant was convicted of growing and conspiring to grow and distribute marijuana. As one of his issues on appeal, Fry argued that the evidence was insufficient to convict because law enforcement destroyed all the plants they seized before performing chemical analysis. The Court affirmed Fry's convictions, holding testimony from two of Fry's co-conspirators and a law enforcement officer established the plants were marijuana plants. The Court ruled that "[s]uch lay testimony is sufficient to support a jury finding that the plants were marijuana plants." Id. at 906.

Based on the foregoing, the trial judge properly denied Perry's motion for a directed verdict as to the charge of trafficking in marijuana.

B. Manufacturing Marijuana

Perry next argues the trial judge erred in declining to direct a verdict on the charge of manufacturing marijuana. Because the marijuana was not grown on his property, he contends there was insufficient proof of guilt on this charge.

Section 44-53-370 of the South Carolina Code makes it unlawful to "manufacture, distribute, dispense, deliver, ... a controlled substance or a controlled substance analogue." S.C.Code Ann. § 44-53-370(a)(1) (2002). As a threshold matter, the plain language of the statute does not require the manufacturing of marijuana to be on one's own property. See State v. Baucom, 340 S.C. 339, 342, 531 S.E.2d 922, 923 (2000)

("The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible."); State v. Morgan, 352 S.C. 359, 366, 574 S.E.2d 203, 206 (Ct.App.2002) ("The legislatur...