State v. Stewart

• Decision Date: 19 May 2021
• Docket Number: Opinion No. 28029,Appellate Case No. 2019-001584
• Citation: 858 S.E.2d 808
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Terrance Edward STEWART, Petitioner.

858 S.E.2d 808

The STATE, Respondent,

v.Terrance Edward STEWART, Petitioner.

Appellate Case No. 2019-001584

Opinion No. 28029

Supreme Court of South Carolina.

Heard November 18, 2020

Filed May 19, 2021

Clarence Rauch Wise, of Greenwood, for Petitioner.

Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch Jr., both of Columbia; Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

JUSTICE FEW :

A jury convicted Terrance Edward Stewart of distribution of heroin and two crimes based on his knowing possession of illegal drugs: trafficking in heroin and what we commonly refer to as "simple possession" of oxycodone. We issued a writ of certiorari to review two aspects of the jury instructions: (1) the trial court's definition of constructive possession, and (2) the trial court's explanation of an inference of "knowledge and possession" that the court told the jury it may draw when illegal drugs are found on the defendant's property. We find the trial court erred by instructing the jury on the inference of knowledge and possession. We reverse the trafficking and simple possession convictions and remand those charges for a new trial. However, because the erroneous jury instruction did not prejudice Stewart on the distribution charge, we affirm the distribution conviction.

I. Facts and Procedural History

A confidential informant with the Laurens County Sheriff's Office purchased five small bags of heroin from Stewart with five marked $20 bills. The following day, the Sheriff's Office obtained a search warrant for Stewart's home, where he lived with his girlfriend and where the heroin sale occurred. The officers who searched the home found 23.83 grams of heroin in a large bag in a plastic basket on top of the refrigerator, fifty-six oxycodone tablets in a tinfoil wrapper in the same plastic basket, a digital scale with a powdery residue on it, and $2,730 in cash. Stewart was asleep on the couch when the officers entered. When he awoke, he asked for permission to put on his pants. An officer picked up Stewart's pants and found an additional $1,173—including the five marked $20 bills—in one of the pockets.

During trial, the trial court provided the parties a copy of its proposed jury instructions. Stewart objected to the trial court's definition of constructive possession and to the trial court's explanation of the inference of knowledge and possession. The trial court overruled the objections and gave the instructions as proposed. The jury convicted Stewart of trafficking in heroin, distribution of heroin, and simple possession of oxycodone. The trial court sentenced Stewart to concurrent prison terms of twenty-five years for trafficking, ten years for distribution, and five years for possession. The court of appeals affirmed in an unpublished opinion. State v. Stewart , Op. No. 2019-UP-209, 2019 WL 2372976 (S.C. Ct. App. filed June 5, 2019). We granted Stewart's petition for a writ of certiorari.

II. The Possession Crimes

Trafficking and simple possession are statutory crimes. Simple possession was defined in the original Controlled Substances Act of 1971. Act No. 445, 1971 S.C. Acts 800, 822. The definition is now found in subsection 44-53-370(c) of the South Carolina Code (2018), which provides, "It shall be unlawful for any person knowingly or intentionally to possess a controlled substance ...." Trafficking was added to the Act in 1981. Act No. 33, 1981 S.C. Acts 42, 44-46. It is defined in subsection 44-53-370(e) of the South Carolina Code (2018), which provides in part,¹ "Any person ... who is knowingly in actual or constructive possession ... of ... (3) four grams or more of ... heroin ... is guilty of ... trafficking ...."

Beginning in 1974, this Court decided a series of four cases— Ellis , Brown , Lane , and Hudson —in which we discussed what facts the State must prove to establish a violation of the simple possession statute and related crimes based on possession. See State v. Ellis , 263 S.C. 12, 22, 207 S.E.2d 408, 413 (1974) ("An accused[ ] ... has possession of ... contraband ... within the meaning of the law when he has both the power and intent to control its disposition or use."). These opinions became the foundation for our law defining constructive possession in drug cases. They later became applicable to trafficking when the charge is based on possession. See State v. Bultron , 318 S.C. 323, 330 n.3, 333-34, 457 S.E.2d 616, 620 n.3, 622 (Ct. App. 1995) (discussing what the State must prove on a trafficking charge based on possession, citing Ellis ).

From those four decisions, it is now clear that to prove trafficking (when based on possession) or simple possession, the State must prove two elements. First—as we originally stated—the State must prove the defendant had either actual physical custody of the drugs, or the right or power to exercise control over the drugs. See State v. Hudson , 277 S.C. 200, 202, 284 S.E.2d 773, 774-75 (1981) ("Actual possession" requires "actual physical custody" of the drugs and "constructive possession" requires "the right to exercise dominion and control" of the drugs); Ellis , 263 S.C. at 22, 207 S.E.2d at 413 (similar, but stating the first element as "the power ... to control its disposition or use"). Second—as we originally stated—the State must prove the defendant had "knowledge of [the] presence" of the drugs. State v. Brown , 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976) ; see also Hudson , 277 S.C. at 202, 284 S.E.2d at 774 (requiring proof of knowledge). In State v. Lane , 271 S.C. 68, 245 S.E.2d 114 (1978), discussing Ellis and Brown , we explained "knowledge" means "the accused must have an ‘intent to control [the] disposition or use’ " of the drugs. 271 S.C. at 73, 245 S.E.2d at 116. Under Lane , the second element is now stated as the defendant must have knowledge of the drugs and the intent to control their disposition or use.

III. Constructive Possession Jury Charge

In these four decisions— Ellis , Brown , Lane , and Hudson —the Court addressed only the sufficiency of the evidence necessary for the State to prove a violation of subsection 44-53-370(c)² and to survive a motion for directed verdict.³ While these decisions accurately defined constructive possession in the context of the sufficiency of the evidence presented in those cases, none of them dealt directly with fashioning a jury instruction defining a violation of the statute. Understandably, however, trial courts and commentators began drafting jury instructions under the guidance of these cases.⁴ Later, as we will discuss in Section IV, this Court relied on these cases to direct circuit judges on how to fashion jury instructions regarding simple possession and related crimes based on possession. State v. Adams , 291 S.C. 132, 135, 352 S.E.2d 483, 486 (1987).

In this case, the trial court began its jury instruction correctly, informing the jury the State must prove both required elements to convict Stewart of trafficking or simple possession. The trial court stated, "To prove possession, ... the State must prove beyond a reasonable doubt the defendant had knowledge of, power over, and the intent to control the disposition or use of the drugs involved." As the court continued, however, it informed the jury, "Constructive possession means that the defendant had dominion and control or the right to exercise dominion and control over either the drugs itself or the property upon which the drugs were found."

This is the statement to which Stewart objected. If we considered the statement only in isolation as a complete definition of constructive possession, the statement would be problematic. The primary problem would be that the statement ignores the second element we described above. We are particularly concerned with the language "the property upon which the drugs were found." Under the four cases, if the State presents evidence the defendant had control over the property on which the drugs were located, then the trial court should deny a directed verdict motion. But, the mere existence of evidence the defendant had control over the property does not equate to a finding of constructive possession. It remains the burden of the State to convince the jury the defendant had the requisite knowledge and intent.

The legal principle of possession requires trial courts to instruct juries on both elements from Ellis , Brown , Lane , and Hudson when defining possession in cases in which the State is required to prove a violation of the statutes on trafficking (when based on possession), simple possession, and related crimes based on possession. First, the State must prove the defendant had the right and power to control the disposition or use of the drugs. For actual possession cases, the State may meet this burden by proving the defendant had actual physical custody of the drugs. For constructive possession cases, the State must prove by other evidence the defendant had the right and power to exercise control over the drugs. Second, the State must prove the defendant had knowledge of the drugs and the intent to control the disposition or use of the drugs. In slightly different terms, these are the same two elements we set forth in Ellis ,⁵ Brown , Lane , and Hudson . See Lane , 271 S.C. at 73, 245 S.E.2d at 116 (holding "the accused has such possession as is necessary for conviction ‘when he has both the power (actual or constructive control) and intent to control its disposition or use’ " (quoting Ellis , 263 S.C. at 22, 207 S.E.2d at 413 )). In this case, the trial court instructed the jury on both elements. In addition, immediately after the potentially problematic statement, the trial court instructed the jury "mere presence at the scene where the drugs were found is not enough to prove possession." This likely had the effect of focusing the jury's attention on the second element.

If we consider the statement to which Stewart now objects only in...