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2004-UP-088 - State v. Scott

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Kenneth Bernard Scott,        Appellant.


Appeal From Greenville County
Joseph J. Watson , Circuit Court Judge


Unpublished Opinion No. 2004-UP-088
Submitted December 23, 2003 – Filed February 12, 2004


APPEAL DISMISSED


Senior Assistant Appellate Defender Wanda P. Hagler, of Columbia, for Appellant,

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  A jury found Kenneth Bernard Scott guilty of possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within close proximity of a school, trafficking in crack cocaine, and possession of crack cocaine with intent to distribute within close proximity of a school. He was fined $50,000 and received concurrent sentences on the four charges, the longest of which was for 21 years. [1]   On appeal, Scott’s counsel argues that the trial court erred in failing to grant his motion for directed verdict on the charges.  In a response brief, Scott raises eight issues dealing with subject matter jurisdiction, violations of his Constitutional rights, and evidence suppression.  We dismiss Scott’s appeal and grant counsel’s petition to be relieved.

I.       FACTS/PROCEDURAL HISTORY

While conducting a midnight search of Scott’s father’s home pursuant to a valid search warrant based on a confidential informant’s information, Sheriff’s Department investigators found Scott standing fully dressed and alone over a toilet in a bathroom in the home.  Someone had apparently just tried to flush the toilet, because water was swirling in it.  An officer removed Scott from the bathroom and handcuffed him.  Another officer found a bag containing crack cocaine in the toilet and a bag containing cocaine on the floor where Scott had been found.  Investigating officers also found Scott’s father in a bedroom, and another man sitting in the kitchen.  was subsequently indicted for one count each of possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within close proximity of a school, trafficking in crack cocaine, and possession of crack cocaine with intent to distribute within close proximity of a school. 

In a September 2000 trial, the State provided testimony from six law enforcement officials who investigated the crime scene where Scott was arrested.  Their testimony indicated that when law enforcement entered and secured Scott’s father’s house, they found Scott’s father in bedroom, another man in the kitchen, and Scott in the bathroom with the illegal drugs.  At the conclusion of the State’s case, Scott made a motion for directed verdict based on a claim that the evidence was insufficient to support the charges.  Specifically, Scott maintained that the office did not see drugs in the bathroom where Scott was found until Scott had been removed and secured, and that Scott’s “mere presence” alone was not enough to support the pending charges.  The trial court denied the motion, finding sufficient circumstantial evidence existed to submit the case to the jury.  Scott renewed the motion after all evidence was presented. 

Scott later filed a motion to reconsider his sentence, for which the circuit judge held a hearing on April 21, 2001.  The judge issued a written order three days later stating “Motion for Reconsideration of Sentence in this case is respectfully denied.”  This appeal follows.

II.      ANDERS ISSUE

Scott contends that the trial court erred in failing to grant his motion for directed verdict because he never had actual or constructive possession of the drugs.  Specifically, Scott argues that he had no actual possession of the drugs, and the evidence only suggests his “mere presence” where the drugs were found rather than constructive possession of the drugs.  Consequently, he concludes his state and federal due process rights were violated.

“Conviction of possession requires proof of possession, either actual or constructive, coupled with knowledge of the drug's presence.”  State v. Williams, 346 S.C. 424, 430, 552 S.E.2d 54, 57 (2001). “Actual possession occurs when the drugs are found to be in the actual physical custody of the person charged with possession.”  Id.  “In order to prove constructive possession, the State must show the defendant had dominion and control, or the right to exercise dominion and control, over the drug.”  Id.  “Such possession can be established by circumstantial or direct evidence or a combination of the two.”  Id.  “Possession requires more than mere presence. The State must show the defendant had dominion or control over the thing allegedly possessed or had the right to exercise dominion or control over it.”  Id.  “Where contraband materials are found on premises under the control of the accused, this fact in and of itself gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury.”  Id.

In the present case, testimony from law enforcement officers clearly indicated that Scott  was alone in the restroom where the drugs were located, thus giving him dominion over the drugs.  Accordingly, when viewed in the light most favorable to State, the circumstantial evidence in this case at least reasonably tends to prove Scott’s guilt on the possession charges.  Thus, the trial court did not err in denying his motion for directed verdict.  See State v. Cooper, 334 SC 540, 551-52, 514 S.E.2d 584, 590 (1999) (stating that “[i]n reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favorable to the State, and if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury.”)

III.    PRO SE RESPONSE ISSUES

          A.      Subject Matter Jurisdiction

Scott argues that the court of appeals lacks subject matter jurisdiction because he never received written notice or an order granting or denying his Post-Trial motions.  He also argues that the circuit court lacked subject matter jurisdiction because he (1) was never served the charging instruments; (2) the indictments for distributing controlled substances within the proximity of a school were invalid because “Greenville Tech is not a public vocational or trade school or technical education center;” and (3) the indictments were not filed with the Greenville County Clerk of Court.

          1.       Subject Matter Jurisdiction of the Court of Appeals

Scott claims that he was never provided a written order denying his post-trial motion for a new trial, this court lacks subject matter jurisdiction to consider the appeal because the matter is stayed pending his receipt of a written order expressing the trial court’s ruling on his post-trial motion.  We disagree.

Scott bases his claim on Rule 29, SCRCrimP, which partially provides that “[t]he time for appeal for all parties shall be stayed by a timely post trial (sic) motion and shall run from the receipt of written notice of entry of the order granting or denying such motion.”  However, the court in this matter clearly issued a written order denying Scott’s post-trial motion, and filed the Motion in the Office of the Greenville County Clerk of Court.  Moreover, Scott’s counsel filed a notice of intent to appeal on May 3, 2002, which gave the South Carolina Court of Appeals exclusive jurisdiction over the appeal and divested the lower court’s jurisdiction except to entertain petitions for writs of supersedeas.  See Rule 205, SCACR (stating “[u]pon the service of the notice of appeal, the appellate court shall have exclusive jurisdiction over the appeal;  the lower court shall have jurisdiction to entertain petitions for writs of supersedeas as provided by Rule 225.”)   Thus, we find Scott’s contention that this Court lacks subject matter jurisdiction over his appeal is meritless.

          2.       Subject Matter Jurisdiction of the Circuit Court

Scott contends the circuit court lacked subject matter jurisdiction to hear his case because he had never been served with the indictments.  However, in his appearance before the court, he never mentioned that he had not received the indictments.  Additionally, his appearance at the trial, along with the inclusion of the indictments in the record on appeal, suggests he received the indictments contrary to his assertions.

He next argues that the trial court lacked subject matter jurisdiction to hear charges pertaining to distribution with proximity of a school because “Greenville Tech is a private vocational trade school” to which S.C. Code Ann. § 44-53-445 does not apply. [2]   However, we take judicial notice of the fact that Greenville Technical College is a state-supported, and thus public, “technical education center” to which Section 44-53-445 clearly applies. [3]

Finally, Scott contends that the indictments have not been filed with the Greenville County Clerk of Court, so the circuit court there lacked jurisdiction to “entertain his case and sentence him.”  However, the record contains certified copies of the indictments that were provided by the Greenville County Clerk of Court, suggesting that office has filed copies of the indictments.

          B.      Constitutional Violations

Scott maintains that his Constitutional rights were violated (1) by the admission of prejudicial hearsay evidence related to the confidential informant; (2) by the court’s failure to suppress evidence obtained from a search conducted without compliance with “knock and announce” requirements; (3) because he was arrested without probable cause; and (4) by holding him in violation of his Fourteenth Amendment rights where “no rational trial of fact would find [him] guilty of every fact and element of his charges beyond a reasonable doubt.”  However, he never raised the first three issues at trial.  Thus, they are not preserved for our review.  See State v. Adams, 354 S.C. 361, 380, 580 S.E.2d 785, 795 (Ct. App. 2003) (stating “[a]rguments not raised to or ruled upon by the trial court are not preserved for appellate review.”); State v. Varvil, 338 S.C. 335, 339, 526 S.E.2d 248, 250 (Ct. App. 2000) (stating “Constitutional arguments are no exception to the rule, and if not raised to the trial court are deemed waived on appeal.”)  We find the merits of the fourth issue are so closely akin to those of the directed verdict motion, and find no violation of his Fourteenth Amendment rights accordingly.

CONCLUSION

After a review of the record as required by Anders v. California, 386 U.S. 738 (1967), and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991),  and the forgoing reasons, we hold there are no directly appealable issues that are arguable on their merits.  Accordingly, we dismiss Scott’s appeal and grant counsel’s petition to be relieved.

APPEAL DISMISSED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concur.


[1] Scott received credit for time served.

[2] S.C. Code Ann. § 44-53-445(A) provides:

It is a separate criminal offense for a person to distribute, sell, purchase, manufacture, or to unlawfully possess with intent to distribute, a controlled substance while in, on, or within a one-half mile radius of the grounds of a public or private elementary, middle, or secondary school;  a public playground or park;  a public vocational or trade school or technical educational center;  or a public or private college or university.

(emphasis added)

[3] Greenville Technical College’s website states that the school “is an accredited, state-supported institution of higher learning ….”  See http://www.greenvilletech.com/About/index.html.