State v. Rothschild, 25518.
Citation | 351 S.C. 238,569 S.E.2d 346 |
Decision Date | 26 August 2002 |
Docket Number | No. 25518.,25518. |
Court | United States State Supreme Court of South Carolina |
Parties | The STATE, Respondent, v. Edward ROTHSCHILD III, Appellant. |
H. Louis Sirkin and Jennifer M. Kinsley, both of Sirkin, Pinales, Mezibov & Schwartz, LLP, of Cincinnati, OH; and Thomas R. Goldstein, of Belk, Cobb, Infinger & Goldstein, PA, of Charleston, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Melody J. Brown; and Solicitor Warren B. Giese, all of Columbia, for respondent.
Appellant was convicted of violating S.C.Code Ann. § 16-13-470(A)(4) (Supp.2001) which prohibits the possession of adulterants intended to defraud a urine drug screening test. We affirm.
Appellant owns two stores in Richland County: Nicki's Novelty Store and Michael's Lingerie and Leather Shop. An ad for Nicki's appeared in an issue of the Free Times Magazine which read: On October 18, 1999, in response to the ad, undercover SLED agent Joseph West was dispatched to Nicki's to purchase one of these products. Agent West purchased a product called Zydot from Nicki's1 after the store clerk assured him this product would allow him to successfully pass a drug test for marijuana. Zydot, which contains no illegal ingredients, is an adulterant used to defeat drug testing of a urine sample.
SLED subsequently seized this product and others like it from Nicki's. Invoices for these products billed to appellant were seized from appellant's other shop.
After a bench trial, appellant was found guilty of violating § 16-13-470(A)(4) which provides:
(emphasis added). The trial judge found appellant knowingly possessed the prohibited adulterants and found him guilty under subsection (4).
Appellant contends because the product he was convicted of possessing is not otherwise unlawful, its possession becomes illegal under § 16-13-470 only when one speaks of its use as an adulterant in a commercial setting.3 He argues § 16-13-470(A)(4) is therefore an "indirect ban" on commercial speech that violates the First Amendment. We disagree.
First, the conduct punishable under subsection (4) is possession of an illegal adulterant; commercial speech is not an integral part of the prohibited activity. Commercial speech may be implicated, however, when, as here, it is used as evidence to prove an element of the offense, i.e. that the adulterant was intended to defeat a drug test.
"[T]he First Amendment does not protect commercial speech about unlawful activities." 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 n. 7, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (citing Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973)
). Adulterating a urine sample to defeat a drug or alcohol test is an illegal activity under subsection (3) of § 16-13-470(A). Commercial speech promoting this illegal activity is therefore not protected. Evidence of such speech may be used to prove intent under § 16-13-470(A)(4) without violating the First Amendment.
Mens rea element
Appellant contends § 16-3-470(A)(4) is impermissibly vague because it contains no mens rea element.4 We construe § 16-13-470(A)(4) to require that the person possessing the product intended it be used as an adulterant. The statute thus contains a mens rea element. See State v. Ferguson, 302 S.C. 269, 395 S.E.2d 182 (1990)
(. ) Appellant's complaint is without merit.
Irrelevant evidence
Appellant contends the trial judge erroneously allowed evidence of the ad, the search warrant, and the other adulterants seized from his store. He claims this evidence is irrelevant because it goes to show mental culpability which is not an element of § 16-13-470(A)(4). Under our reading of the statute, the evidence evincing appellant's mental culpability is relevant and was properly admitted.
Directed verdict
Appellant contends the trial judge should have granted his motion for directed verdict. We disagree.
A defendant is entitled to a directed verdict when the State fails to produce any direct or substantial circumstantial evidence of the offense charged. State v....
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