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2009-UP-084 - State v. Senn

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.

James O. Senn, Appellant.


Appeal From Lexington County
William P. Keesley, Circuit Court Judge


Unpublished Opinion No. 2009-UP-084
Submitted January 2, 2009 – Filed February 12, 2009


AFFIRMED


Appellate Defender Kathrine H. Hudgins, South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM: James O. Senn appeals his conviction for trafficking 400 or more grams of methamphetamine, alleging the trial court erred in denying his motion for a directed verdict and denying his request to charge lesser-included offenses. 

1. As to the directed verdict motion, Agent Nathan McCoy testified the methamphetamine-containing solution found in just one of the two containers in Senn’s possession weighed well over 400 grams.  Accordingly, the trial court properly denied Senn’s directed verdict motion.  State v. Weston, 367 S.C. 279, 292-93, 625 S.E.2d 641, 648 (2006) (“When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight.  A defendant is entitled to a directed verdict when the state fails to produce evidence of the offense charged.”).

2. As to charging lesser-included offenses, we initially note Senn never requested a “simple possession” charge at trial.  Furthermore, with regard to the lesser-included offense of trafficking less than 400 grams, we find no evidence in the record supporting such a charge.  See S.C. Code Ann. § 44-53-375(C)(5) (Supp. 2008) (establishing the crime of trafficking 400 or more grams of methamphetamine, and referencing § 44-53-210(d) to supply the definition of methamphetamine); S.C. Code Ann § 44-53-210(d) (2002) (defining methamphetamine to include any material, compound, mixture, or preparation which contains any quantity of methamphetamine, its salts, and salts of isomers);  see also State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001) (internal citation omitted) (“The law to be charged must be determined from the evidence presented at trial.”); State v. Geiger, 370 S.C. 600, 608, 635 S.E.2d 669, 674 (Ct. App. 2006) (“The mere contention that the jury might accept the State’s evidence in part and reject it in part is insufficient to satisfy the requirement that some evidence tend to show the defendant was guilty only of the lesser offense.”).

AFFIRMED.[1]

WILLIAMS, PIEPER, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.