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2010-UP-500 - State v. Barno

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

The State, Respondent,

v.

Reginald Barno, Appellant.


Appeal From Sumter County
R. Ferrell Cothran, Jr., Circuit Court Judge


Unpublished Opinion No. 2010-UP-500   
Submitted October 1, 2010 – Filed November 10, 2010


AFFIRMED


Appellate Defender Robert M. 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 Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor C. Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:  Reginald Barno was convicted of possession of crack cocaine and possession of marijuana.  Barno appeals, asserting the trial judge erred in giving a jury charge on inference that was burden shifting.  We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

On September 30, 2008, investigators with the Sumter County Sheriff's Office were observing the residence of Wayne Barkley, who had previously been arrested on a drug charge, when appellant pulled up in a black Nissan. Barkley approached the vehicle, and it appeared something was exchanged between the men.    When the officers ran the tag on the Nissan, it came back as belonging to a Volvo.  After Barno pulled away, the officers followed behind and initiated a traffic stop.  When asked for his driver's license, appellant indicated he did not have one.  Barno was then detained and read his Miranda[2] rights.  The officers then noticed a white rock substance in plain view in the front seat of the car that tested positive for crack cocaine.  When one of the officers asked whose crack it was, appellant stated it was his.  Later, while being booked into the detention center, a small baggy of marijuana was found in Barno's pants pocket.

At the close of the evidence, the trial judge indicated his intent to charge that possession may be inferred when a substance is found on property under the control of the defendant, and that such inference is simply an evidentiary fact to be considered by the jury.  Barno objected to the proposed charge, arguing an instruction including the word "inferred or inference" would be burden shifting, would create a comment on the facts, and would deny him due process.  Specifically, trial counsel argued as follows:

- - if it's the court's intention to use the word inferred or inference at any place in your charge, I'm going to respectfully object and ask that you do not do that feeling that any time the Court gives the jury an instruction as to inference, that that we would argue is respectfully  - - I know it's often done generally done in some cases, but we would respectfully urge the Court to find that that is burden shifting, that that is creating a comment on the facts by the bench which is not permitted under the rules, and that ultimately it's a denial of due process and that it's violative of the constitutional right to a fundamentally fair trial.

In that, Your Honor, if they're told that they may infer something by anything, then why is that not a comment on the facts?  I mean, the general nature of the violation of the contraband statute, they have got that.

Why is it we're telling them that they can find something if they find something else or that - - that we feel - - any time the word inference is used but may be inferred, that phrase, we feel that that's burden shifting and improper comment on the facts and denial of due process. 

And we urge the Court not to do that and let you know that it would be our intention to respectfully except should the Court choose to do that.

(emphasis added).  The trial judge then replied:

And it's under State v. Adams, 291 SC 130, it is exactly where that language comes from.  It is in every charge book in every Judge in the State of South Carolina dealing with possession of crack cocaine as well as possession of marijuana.

But it - - it does not comment on the facts in my opinion.  It simply it is the law in this State.  And it simply says that a knowledge - - and possession may be inferred when the substance is found on the property under the defendant's control.  However, this inference is simply an evidentiary fact to be taken by you.

I think that is the law.  And I'm going to charge it formally, but I note your objection.

The trial judge then charged as he indicated, stating as follows:

The defendant's knowledge and possession may be inferred when . . . a substance is found on the property under the defendant's control.

However, this inference is simply an evidentiary fact to be taken into consideration by you along with the other evidence in this case and to give the weight you decide it should have.

Trail counsel excepted to this instruction as follows:

The third exception, Your Honor, would be inferenceYou did use the word.  I think it was in the context of something to be inferred from control of the premises on which the drugs were found.  So I respectfully except to that as being burden shifting for those reasons I told you before the break.

(emphasis added).  The trial judge declined to recharge on the matter, determining the inference instruction was the law of this state.  After deliberations began, the jury sent a note asking whether the defendant had "to know that the drugs were in the car to be guilty" and what the court meant "by possession."  The trial judge recharged the jury that the State was required to prove beyond a reasonable doubt that defendant knowingly and intelligently possessed the drugs, that to prove possession, the State was required to prove beyond a reasonable doubt that the defendant had the power and intent to control the disposition of the drugs, and that "defendant's knowledge and possession may be inferred when a substance is found on the property under the defendant's control" but this inference was simply an evidentiary fact to be considered along with the other evidence and "to be given whatever weight [the jury] decide[d] it should have."

LAW/ANALYSIS

On appeal, Barno contends that the law provides, in order for an inference to be considered permissive, the jury must be instructed they are free to accept or reject the inference.  Barno asserts, because the trial court failed to specifically instruct the jury they could reject the inference, the charge was burden shifting, in violation of his due process rights.

We find the issue as argued on appeal is not preserved for our review.  Although defense counsel objected to the proposed charge and took exception to the instruction given by the court, the basis for this objection was not the trial court's failure to specifically include language that the jury was free to accept or reject this permissive inference of knowledge and possession.  Rather, counsel's sole argument was that any instruction including the word "inferred" or "inference" would be burden shifting, would be a comment on the facts, and would deny him due process.  Counsel never requested the trial judge include language that the jury was free to accept or reject the permissive inference.  Further, appellant does not challenge on appeal the language of the charge as being improper because of the inclusion of the word "inferred" or the word "inference" as he argued at trial.On appeal, Barno appears to agree that a charge including the word "inference" may be proper.  He never argued at trial, as he does on appeal, that the charge was burden shifting because it failed to instruct the jury that they could reject the inference.  Further, Barno never asked the trial judge to include an instruction that the jury could accept or reject the inference.  In essence, Barno argued to the trial judge that the charge was improper based upon the use of the word "inference," thus contending it was an incorrect statement of the law.  However, the law as charged by the trial judge, in and of itself, was not an incorrect statement of the law and Barno does not, on appeal, challenge the law as charged by the trial judge as an incorrect statement.  See  State v. Adams, 291 S.C. 132, 135, 352 S.E.2d 483, 486 (1987) (stating the proper charge on constructive possession is to instruct the jury that the defendant's knowledge and possession may be inferred if the substance was found on premises under his control); see also State v. Tindall, 379 S.C. 304, 313-14, 665 S.E.2d 188, 193-94 (Ct. App. 2008), rev'd on other grounds, 388 S.C. 518, 698 S.E.2d 203 (2010) (quoting with approval a charge substantially identical to the case at hand which stated, "The defendants knowledge and possession may be inferred when a substance is found on the property under the defendants control.  However, the inference is simply an evidentiary fact to be taken into consideration by you along with other evidence in the case and to be given the weight you decide it should have," finding the language adequately charged the law as determined from the evidence and provided the proper law for the jury to consider).  Rather, Barno essentially asserts that the charge was incomplete in that it did not include an instruction that the jury could accept or reject the inference.  Barno never requested the trial judge include such an instruction with his charge.  Because he is attempting to raise an argument on appeal not brought to the trial court's attention, and additionally failed to ask the court to include the portion of the charge he is now maintaining should have been included, the issue argued on appeal is not properly preserved.  See Madison v. Babcock Ctr., Inc., 371 S.C. 123, 144, 638 S.E.2d 650, 661 (2006) (holding arguments not presented to nor ruled upon by trial court are not preserved for appellate review); State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (finding argument advanced on appeal was not raised and ruled on below and therefore was not preserved for review); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) (noting "[a] party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground") (emphasis added); State v. Haselden, 353 S.C. 190, 196, 577 S.E.2d 445, 448 (2003) (holding a party may not argue one ground at trial and another on appeal); State v. McKnight, 352 S.C. 635, 646-47, 576 S.E.2d 168, 174 (2003) (issue must be raised to and ruled upon by trial court to be preserved for review); Morris v. Anderson County, 349 S.C. 607, 611 n.4,  564 S.E.2d 649, 651 n.4 (2002) (noting "[i]t is well-settled that appellants cannot raise new arguments or change their grounds between trial and appeal."); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (stating imposing preservation requirements on the appellant is meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments, and noting that the "purpose of an appeal is to determine whether the trial judge erroneously acted or failed to act and when appellant's contentions are not presented or passed on by the trial judge, such contentions will not be considered on appeal."); State v. Whitten, 375 S.C. 43, 47, 649 S.E.2d 505, 507 (Ct. App. 2007) (finding an appellate court is limited by appellate rules that allow the court to consider only the precise question that was before the trial judge and ruled upon by him or her); Queen's Grant II Horizontal Prop.  Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct. App. 2006) (noting "[i]ssue preservation rules are designed to give the trial court a fair opportunity to rule on the issues, and thus provide us with a platform for meaningful appellate review," and until the trial court considers the matter and makes a ruling, an appellate court is unable to find error); see also State v. Stanko, 376 S.C. 571, 578, 658 S.E.2d 94, 97 (2008) (holding, absent request by counsel to charge a matter at trial, the issue of whether the matter should have been charged is not preserved for review).  Accordingly, Barno's convictions are

AFFIRMED.

FEW, C.J., and HUFF and GEATHERS, JJ., concur.


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

[2] Miranda v. Arizona, 384 U.S. 436 (1966).