State v. Simpson, 21322

• Decision Date: 10 November 1980
• Docket Number: No. 21322,21322
• Citation: 272 S.E.2d 431,275 S.C. 426
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Carey Eugene SIMPSON, Appellant.

Page 431

272 S.E.2d 431

275 S.C. 426

The STATE, Respondent, v. Carey Eugene SIMPSON, Appellant.

No. 21322.

Supreme Court of South Carolina.

Nov. 10, 1980.

George W. Speedy, of Furman & Speedy, Camden, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Kay G. Crowe and Lindy Pike Funkhouser, and Sol. James C. Anders, Columbia, for respondent.

LITTLEJOHN, Justice:

Carey Eugene Simpson was found guilty of possession of marijuana with intent to distribute, and he appeals. We affirm.

On March 17, 1979 appellant landed a twin-engine Cessna 421 aircraft at the Camden airport in Kershaw County, left the plane in the hands of the airport manager and checked into a local motel to spend the night. SLED agents who had been monitoring the plane's activity ¹ peered through an exposed window and observed marijuana residue on the floor and seats of the airplane.

A search warrant was obtained and a small quantity of substance ² vacuumed from the interior of the craft. Appellant was subsequently arrested at the motel. A search incident to the arrest turned up no contraband, but aeronautical maps, a passport, notebook, credit cards and other items were recovered and later introduced at trial.

The State's case consisted of direct evidence that appellant maintained dominion and control over the aircraft and thus constructive possession of the marijuana recovered, State v. Brown, 267 S.C. 311, 227 S.E.2d 674 (1976); see, also, State v. Halyard, S.C., 264 S.E.2d 841 (1980), and circumstantial evidence that the plane had been used in a drug-smuggling operation ³. A law enforcement expert in the field of smuggling operations opined a large quantity of marijuana had been transported by and unloaded from the craft with only the telltale residue remaining.

Appellant moved for a directed verdict of acquittal on the ground no substantial evidence was presented he intended to distribute the small quantity recovered from the plane.

Conviction of possession with intent to distribute does not hinge upon the amount involved. The amount involved in this case merely meant that the State could not rely upon the statutory presumption. Inasmuch as the defendant offered no evidence, the ruling of the trial judge and of this court must depend upon evidence submitted by the State. While the evidence is susceptible of more than one reasonable inference, we cannot say that it is insufficient to warrant a conviction.

It is elementary that in determining whether the lower court should have granted a motion for a directed verdict of acquittal, the evidence must be viewed in the light most favorable to the State. In State v. Chandler, 267 S.C. 138, 226 S.E.2d 553 (1976), we said:

"When a motion for a directed verdict is made, the trial judge is concerned with the existence or nonexistence of evidence, not with its weight, and although he should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty, it is his duty to submit the case to the jury if there is evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Wheeler, 259 S.C. 571, 193 S.E.2d 515 (1972); State v. Jordan, 255 S.C. 86, 177 S.E.2d 464 (1970)."

On this appeal the burden of showing that the lower court erred is upon the appellant. He has failed to carry the burden, and we hold that the facts made issues for determination by the jury and should not have been ended as a matter of law by the judge.

Accordingly, the conviction is sustained and the lower court is

AFFIRMED.

LEWIS, C. J., and NESS and HARWELL, JJ., concur.

GREGORY, J., dissents.

GREGORY, Justice: (dissenting).

I respectfully dissent.

The only issue is whether there exists any competent evidence, direct or circumstantial, which reasonably tends to establish appellant's intent to distribute marijuana in Kershaw County. I find none whether our traditional "any evidence" standard of review is applied, see State v. Halyard, S.C., 264 S.E.2d 841 (1980), or the recently enunciated federal standard of review is used, i. e., whether any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime present beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979). Accordingly, I would reverse the trial judge for his failure to direct a verdict of acquittal.

It can be inferred from the circumstances appellant at one time had in his possession, aboard the aircraft, a large quantity of marijuana. And I have no quarrel with the further logical inference he intended to distribute the contraband. But when appellant off-loaded the marijuana his intent to distribute came to fruition and vanished with the contraband. Where that occurred we...