STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Daniel Alexander Walker, Petitioner.
WRIT OF CERTIORARI TO
THE COURT OF APPEALS
From Union County
John C. Hayes, III, Circuit Court Judge
Heard March 6, 2002 - Filed April 8, 2002
Melvin L. Roberts, of Roberts & D'Agostino, of York, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General Melody J. Brown, all of Columbia, and Solicitor Thomas E. Pope, of York, for respondent.
We granted certiorari to consider the Court of Appeals' opinion affirming
Petitioner's conviction for cultivating marijuana on the land of another.
State v. Walker, Op. No. 2000-UP-608 (S.C. Ct. App. filed October 10,
2000). We find Petitioner was entitled to a directed verdict and
In September 1997, Dr. George
Stretcher ("Stretcher") discovered a number of marijuana plants growing on his
property and alerted the authorities. Police searched the area and found
five marijuana fields, three on Stretcher's property and two on adjacent
property owned by Mary Taylor. William Bennett ("Bennett"), an
investigator with the South Carolina Forestry Commission, installed a video
surveillance camera aimed at one of the fields. Bennett also visually
inspected all five fields. He found evidence that the plants in all the
fields except one had been fertilized. Soil had been piled up around the
bases of the plants, and a number of plants had been thinned out; Bennett
found culled marijuana plants discarded at the edge of the fields.
Additionally, Bennett noticed that tree limbs and other vegetation had been
cleared out around the fields allowing more light to penetrate.
About a month after Stretcher's discovery, Charles Yates
("Yates") was deer hunting in the area
when Petitioner approached him in the woods. Petitioner was carrying a
black plastic bag. The bag appeared to Yates to be quite heavy.
Petitioner said he was lost and asked Yates for directions to the dirt road
that traversed the property. Yates gave Petitioner directions.
When Yates asked Petitioner to reveal the contents of the black bag,
Petitioner ran into the woods.
Suspicious of Petitioner's
activity, Yates called the police and reported the incident. Police
responded to the scene and Yates helped them search for Petitioner. The
police eventually discontinued the search and left the area. Later, as
Yates was driving home, he saw Petitioner standing in the dirt road.
Petitioner motioned for Yates to stop, and Yates complied. Yates agreed
to give Petitioner a ride. Later that evening, Yates again contacted the
Very early the next day
Bennett checked the surveillance equipment he had previously installed, and
viewed the video tape. The tape depicted a man resembling Petitioner,
carrying a black bag, harvesting marijuana. The time code on the tape
indicated this activity occurred less than an hour before Yates reported
seeing Petitioner in the woods.
Later that morning, police
officers returned to the area, and encountered Petitioner on the dirt road.
They placed him under arrest.
Petitioner was indicted and
tried for trafficking marijuana, manufacturing marijuana, and two counts of
cultivating marijuana on the land of another.
 Following presentation of the State's evidence Petitioner moved
for a directed verdict on all charges. The trial court denied the
motion. The jury found Petitioner guilty on three counts, acquitting him
on the count charging cultivation of marijuana on the Taylor property.
The Court of Appeals reversed
the trafficking conviction and affirmed the two remaining convictions.
We granted certiorari to consider the conviction for cultivating marijuana on
the land of another.
Did the Court of Appeals err in determining Petitioner was not entitled to a directed verdict on the charge of cultivating marijuana on the land of another?
A defendant is entitled to a
directed verdict when the State fails to produce evidence of the offense
charged. State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36
(2001). In reviewing a motion for directed verdict, the trial judge is
concerned with the existence of the evidence, not with its weight. State
v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000). On
appeal from the denial of a directed verdict, an appellate court must view the
evidence in the light most favorable to the State. State v. Burdette,
335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999). "When a motion for a
directed verdict is made in a criminal case where the State relies exclusively
on circumstantial evidence, the trial 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. Lollis, 343 S.C. 580, 584, 541 S.E.2d 254, 256
South Carolina Code Ann. ' 16-11-617 (Supp. 2001) provides that
It is unlawful for a person to enter on the land of another for the purpose of cultivating or attempting to cultivate marijuana. The provisions of this section are cumulative to other provisions of law. To constitute a violation of this section, a minimum of twenty-five marijuana plants must be cultivated. . . .
The code does not define
"cultivating" or "cultivate." Since it is a criminal statute, we must
construe ' 16-11-617 strictly against the State and in favor of the defendant.
Stardancer Casino, Inc. v. Stewart, __ S.C. __, 556 S.E.2d 357 (2001).
Webster defines "cultivate" as
to prepare and use (soil or land) for growing crops; till 2. to
break up the surface soil (around plants) in order to destroy weeds, prevent
crusting, and preserve moisture 3. to grow (plants, crops, fish,
etc.) from seeds, bulbs, shoots, etc. 4. to improve or develop
(plants) by various horticultural techniques 5. to improve by
care, training, or study; refine . . . 6. to promote the
development or growth of; acquire and develop . . . 7. to seek to
develop familiarity with; give one's attention to; pursue
Webster's New World College
Dictionary 352 (4th ed. 1999).
We do not agree with the
Court of Appeals that the videotape depicts "a person cultivating the
The videotape shows a man matching Petitioner's description in a field of
marijuana, picking, or harvesting, the plants. The man in the video is
not tilling or breaking up the soil; he is not planting seeds, or
transplanting young marijuana plants; he is not applying fertilizer, or
otherwise preparing or improving the soil. Nothing in the video depicts
the cultivation of marijuana as that word is commonly defined.
Bennett's testimony that the fields were cultivated does not establish
Petitioner cultivated them. Yates' description of his encounter with
Petitioner, while it does suggest that Petitioner is the man shown in the
video harvesting marijuana, is not evidence that Petitioner cultivated
the crop. In fact, apart from his presence in the area, there is no
evidence connecting Petitioner with the cultivation of the marijuana. See
State v. Johnson, 291 S.C. 127, 352 S.E.2d 480 (1987) (where evidence
merely places defendant at scene of crime, but fails to show defendant
committed the crime charged, defendant is entitled to directed verdict).
Construing the evidence in
the light most favorable to the State, we find it merely raises a suspicion of
Petitioner's guilt. See State v. Mitchell, 341 S.C. 406,
409, 535 S.E.2d 126, 127 (2000) (lower court should grant motion for directed
verdict where evidence merely raises the suspicion accused is guilty).
We therefore REVERSE the decision of the Court of Appeals.
TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.
One count of cultivating was based on the marijuana plants found on
Stretcher's property, the other count on the marijuana plants found on the
Evidence sufficient to sustain a conviction for manufacturing marijuana
may not always be sufficient to sustain a conviction for cultivating
marijuana on the lands of another, even where there is no dispute the
property belonged to someone other than the defendant. The
manufacturing statute, S.C. Code Ann. ' 44-53-370 (a)(1) (2002), when read
in conjunction with the definitional statute, S.C. Code Ann. ' 44-53-110
(2002), and State v. Austin, 276 S.C. 441, 442, 279 S.E.2d 374, 375
(1981), equates the act of "harvesting" with the offense of
The code, however, does not equate "harvesting" with