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2008-UP-709 - State v. Brewster

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Brian Brewster, Appellant.


Appeal From Horry County
 Edward B. Cottingham, Circuit Court Judge


Unpublished Opinion No. 2008-UP-709
Heard November 19, 2008 – Filed December 16, 2008   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor J. Gregory Hembree, of Conway, for Respondent.

PER CURIAM: Brian Brewster was tried for and convicted of possession of marijuana with the intent to distribute (PWID).  He was sentenced to twelve years imprisonment and fined ten thousand dollars.  Brewster appeals his conviction and sentence, arguing the circuit court erred in (1) refusing to suppress evidence of the marijuana he asserts was discovered as the result of an unconstitutional roadblock, and (2) refusing to charge the jury they could find Brewster guilty of possession of more than one ounce of marijuana.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities. 

1. As to whether the circuit court erred in refusing to suppress evidence of the marijuana:  Rule 220(c), SCACR (stating the appellate court may affirm upon any ground appearing in the record); State v. Dupree, 319 S.C. 454, 457, 462 S.E.2d 279, 281 (1995) (“Abandoned property has no protection from either the search or seizure provisions of the Fourth Amendment.”).[1] 

2. As to whether the circuit court erred in refusing to charge the jury on possession of more than one ounce of marijuana: Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472-73 (2004) (holding a trial judge is required to charge only the current and correct law of South Carolina and a jury charge is correct if it contains the correct definition of the law when read as a whole); State v. Elliott, 346 S.C. 603, 606, 552 S.E.2d 727, 728 (2001), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005) (“The test for determining when an offense is a lesser included offense of another is whether the greater of the two offenses includes all the elements of the lesser offense.”); Matthews v. State, 300 S.C. 238, 239, 387 S.E.2d 258, 259 (1990) (“Possession of any amount of marijuana, coupled with sufficient indicia of intent to distribute, will support a conviction for possession with intent to distribute.”); State v. Adams, 291 S.C. 132, 135, 352 S.E.2d 483, 485 (1987) (stating simple possession of marijuana is a lesser included offense of possession with intent to distribute marijuana); see also State v. Gooch, 297 S.E.2d 599, 602 (N.C. 1982) (finding possession of more than one ounce is not a lesser included offense of possession with intent to distribute).

AFFIRMED.

SHORT, THOMAS, and PIEPER, JJ., concur.


[1] Based on our finding of abandonment, we need not address the constitutionality of the roadblock.