State v. Robinson, 1726
| Decision Date | 15 October 1991 |
| Docket Number | No. 1726,1726 |
| Citation | 306 S.C. 323,411 S.E.2d 678 |
| Parties | The STATE, Respondent, v. Roland Rod ROBINSON, Appellant. . Heard |
| Court | South Carolina Court of Appeals |
Asst. Appellate Defender Tara Dawn Shurling, of South Carolina Office of Appellate Defense, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Attys. Gen., Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol., Ralph J. Wilson, Conway, for respondent.
The issue in this appeal is whether a quantifiable or measurable amount of cocaine must be found in the possession of the appellant in order to sustain a conviction against him for possession of cocaine. We hold a measurable amount must be possessed to support such a conviction. The appellant's conviction is affirmed.
At trial, the State produced testimony that on April 15, 1989, officers went to Winyah Grill, a place known for drug activity, and found Robinson standing next to a man by the name of Evans. Evans was rolling a marijuana cigarette. When Robinson saw the officers, he yelled "the heat is in the house." Thereafter, the officers searched Evans and found several vials of cocaine. They arrested Evans for possession of cocaine. Meantime, Robinson was observed by an officer throwing something into a trashcan. The trashcan was searched and drug paraphernalia consisting of a makeshift cocaine smoking pipe and a plastic vial were found. 1 A chemical analysis of the pipe and vial revealed a residue of cocaine in an amount that was neither weighable nor otherwise measurable as to quantity.
Robinson contends on appeal the trial judge committed reversible error in not granting his motion for directed verdict of acquittal because the State did not present sufficient proof he possessed cocaine in a measurable amount as contemplated by S.C.Code Ann. § 44-53-370(c) (1976). Thus, he argues the trial court should have decided as a matter of law the crime of possession of cocaine had not been proved and should have directed a verdict in his favor.
In ruling on a criminal defendant's motion for a directed verdict, a trial court must view the evidence in the light most favorable to the State. Any evidence, direct or circumstantial, tending to prove the guilt of the accused creates a jury issue. State v. Owens, 291 S.C. 116, 352 S.E.2d 474 (1987); State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986).
Where the State relies exclusively on circumstantial evidence to prove its case, the judge is required to submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced. State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989); State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989), cert. denied, 493 U.S. 895, 110 S.Ct. 246, 107 L.Ed.2d 196 (1989).
A review of the law from other jurisdictions reveals a majority of jurisdictions hold possession of the residue of a contraband drug, so long as the residue is capable of being identified, is sufficient to support a conviction for possession. See Robbs v. Commonwealth, 211 Va. 153, 176 S.E.2d 429 (1970); State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965); Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976), aff'd, 238 Ga. 207, 232 S.E.2d 46 (1977); State v. Thomas, 20 N.C.App. 255, 201 S.E.2d 201 (1973), cert. denied, 284 N.C. 622, 202 S.E.2d 277 (1974).
While our Supreme Court has never considered the precise question presented here, it has held several times that possession of any amount of a controlled substance when coupled with sufficient indicia of intent to distribute will support a conviction for possession with intent to distribute. State v. Goldsmith, 301 S.C. 463, 392 S.E.2d 787 (1990); Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990); State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987). On the other hand, our Supreme Court has said that in order for an accused to possess contraband he must have both the power and intent to control its disposition or use. State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987); State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974). Actual knowledge of the presence of contraband is strong evidence of intent to control its disposition or use. Goldsmith, 301 S.C. 463, 392 S.E.2d 787; Kimbrell, 294 S.C. 51, 362 S.E.2d 630; State v. Lane, 271 S.C. 68, 245 S.E.2d 114 (1978).
Our statute makes it illegal for a person to "knowingly or intentionally" possess cocaine. § 44-53-370(c). The statute specifies no minimum amount. Thus, at least on the face of the statute there is no impediment to an application of the majority rule. However, we agree with Robinson's argument that under our Supreme Court's formulation of the criteria for possession, it cannot be gainsaid that one could have the power and intent to control the disposition or use of an amount of a drug if the amount is incapable of measure or as is the case here, the amount is invisible to the naked eye. 2
While we hold the amount required to support a conviction need not be a usable amount, we also hold the evidence, whether...
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State v. Robinson
...Roland Rod Robinson's (Robinson) application for writ of certiorari to review the Court of Appeal's decision in State v. Robinson, 306 S.C. 323, 411 S.E.2d 678 (Ct.App.1991). Robinson contends that the Court of Appeals erred in holding that he was not entitled to a directed verdict of acqui......