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2010-UP-461 - In the Interest of Kaleem S.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In the Interest of Kaleem S., a juvenile under the age of eighteen, Appellant.


Appeal From Sumter County
 William Jeffrey Young, Family Court Judge


Unpublished Opinion No. 2010-UP-461
Submitted October 1, 2010 – Filed October 25, 2010  


REVERSED


Appellate Defender Robert Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:  Kaleem S. appeals his conviction of possession with intent to distribute marijuana (PWID) and PWID within one-half mile of a school, arguing the family court erred in denying his motion for a directed verdict.  We reverse.[1]

FACTS

Kaleem S. was arrested, along with four co-defendants, while leaving a high school football game.  A police officer stopped the vehicle Kaleem S. and his co-defendants occupied after receiving a tip that the vehicle was involved in suspicious activity.  After searching the vehicle, the officer found two bags of marijuana in the passenger's backdoor armrest and under the driver's side rear seat.   

At trial, the arresting officer testified regarding the incident.  He stated he searched the vehicle after removing all of the subjects and found "on the passenger's side in the backdoor armrest[,] . . . a plastic bag containing twenty small plastic bags of marijuana, and then, also located under the driver's side, the rear seat, . . . a plastic bag containing marijuana."  The officer arrested all of the individuals for PWID and PWID within one-half a mile of a school because "the marijuana was distributed throughout the vehicle and was [not] in one centralized location where we could determine exactly whose marijuana it was.  And . . . nobody was claiming any kind of ownership of the marijuana."  The officer acknowledged he did not know who was driving the vehicle, nor did he remember where the defendants were sitting in the vehicle at the time of the stop.  The arresting officer confirmed that no statements were taken from the individuals at the time of their arrests.

After the State closed its case, Kaleem S. moved for a directed verdict, arguing the State failed to present evidence proving Kaleem S. had constructive possession of the marijuana.  The family court denied the motion, ruling that the State presented sufficient evidence to move forward. The family court explained, "[The State] . . . placed all five of [the defendants] in the vehicle, [and] the drugs are in two different locations."  The family court ultimately found Kaleem S. and his co-defendants guilty of PWID and PWID within one-half mile of a school and sentenced them to ninety days' detention with the Department of Juvenile Justice.  This appeal followed.

LAW/ANALYSIS

Kaleem S. argues the family court erred in denying his motion for a directed verdict because the State failed to prove he had constructive possession of the marijuana.  We agree.  

"A defendant is entitled to a directed verdict when the State fails to present evidence of the offense charged."  State v. Heath, 370 S.C. 326, 329, 635 S.E.2d 18, 19 (2006).  "If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, [the appellate court] must find the case was properly submitted to the jury."  State v. Stanley, 365 S.C. 24, 42, 615 S.E.2d 455, 464 (Ct. App. 2005). 

"Conviction of possession of marijuana requires proof of possession-either actual or constructive, coupled with knowledge of its presence."  State v. Brown, 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976).   A person is guilty of constructive possession of an illegal substance if the State proves "the defendant had dominion and control, or the right to exercise dominion and control over the [illegal substance]."  Heath, 370 S.C. at 329, 635 S.E.2d at 19 (quotation marks and citation omitted).

Here, the State did not present substantial circumstantial evidence proving Kaleem S. had constructive possession of the marijuana.  Kaleem S. was not the owner of the vehicle, and the State failed to present evidence demonstrating Kaleem S. controlled the vehicle and its contents.  See Id. at 329-30, 635 S.E.2d at 19 ("The defendant's knowledge and possession may be inferred if the substance was found on premises under his control.").  In fact, the arresting officer testified he did not know who was driving the vehicle or where the defendants were sitting in the vehicle.  See Brown, 267 S.C. at 315, 227 S.E.2d at 676 (granting a defendant's motion for a directed verdict and finding insufficient evidence to prove defendant's dominion and control of marijuana when the defendant was passenger in vehicle, driver had an undetermined sum of cash, defendant was nervous and had no identification, there was smell of marijuana in vehicle, and large opaque bag containing marijuana was on the rear floorboard).

In addition, the State failed to present evidence that Kaleem S. had knowledge of the marijuana.  The officer testified the marijuana was located in two locations in the back of the vehicle.  However, the officer admitted he did not remember where Kaleem S. was sitting at the time of the stop.  The State's argument that Kaleem S. had knowledge of the marijuana because the bags were in plain view in the passenger's side backdoor armrest is unsupported by the record.  In fact, the officer testified he discovered the bags of marijuana in a backdoor armrest and under a rear seat.  Moreover, even if the bags containing the marijuana were in plain view, the State never established whether the marijuana was visible through the bags.  

Accordingly, we hold the family court erred in denying Kaleem S.'s motion for a directed verdict because the State only presented evidence proving that Kaleem S. was present in the vehicle, not that he had dominion and control of the marijuana.  See State v. Wise, 272 S.C. 384, 387, 252 S.E.2d 294, 296 (1979) ("Mere proof of presence of a defendant in a vehicle containing a controlled substance has been held insufficient in itself to convict him of the crime of possession.").  

For the foregoing reasons, the decision of the family court is 

REVERSED.

WILLIAMS, PIEPER, and KONDUROS, JJ., concur.


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