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2011-UP-183 - State v. Jenkins

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.

Frederick J. Jenkins, Appellant.


Appeal From Spartanburg County
E. C. Burnett, III, Circuit Court Judge


Unpublished Opinion No. 2011-UP-183
Submitted April 1, 2011 – Filed April 19, 2011   


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Alan Wilson, 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 Barry Barnette, of Spartanburg, for Respondent.

PER CURIAM: Frederick J. Jenkins appeals his conviction for possession with intent to distribute crack cocaine.  He argues the trial court erred in (1) denying his motions for a directed verdict on the offense; (2) permitting the use of a statutory inference of intent to distribute based upon the amount of crack seized; and (3) commenting on the facts of the case while instructing the jury.  We affirm.[1]

Jenkins argues the trial court erred in denying his motion for a directed verdict because the State failed to introduce sufficient evidence he had constructive possession of or intended to distribute crack cocaine found in a car he was driving.  We disagree.

"When reviewing a denial of a directed verdict, this [c]ourt views the evidence and all reasonable inferences in the light most favorable to the nonmoving party."  State v. Brannon, 388 S.C. 498, 501, 697 S.E.2d 593, 595 (2010) (citation omitted).  "To survive a motion for directed verdict, the [S]tate must present any direct evidence or substantial circumstantial evidence . . . from which the defendant's guilt can be fairly and logically deduced."  State v. Muhammed, 338 S.C. 22, 26, 524 S.E.2d 637, 639 (Ct. App. 1999) (citations omitted).

"A person who . . . possesses with intent to distribute . . . cocaine base . . . is guilty of a felony . . . ."  S.C. Code Ann. § 44-53-375(B) (Supp. 2010).  The South Carolina Code "creates a permissive inference that possession of more than one gram of crack cocaine constitutes possession with intent to distribute."  State v. James, 362 S.C. 557, 561, 608 S.E.2d 455, 457 (Ct. App. 2004) (discussing § 44-53-375(B)).

"Possession may be actual or constructive," and "constructive possession occurs when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs are found."   State v. Ballenger, 322 S.C. 196, 199, 470 S.E.2d 851, 854 (1996) (citations and internal quotation marks omitted).  Moreover, "[f]light has been held to constitute evidence of guilty knowledge and intent."  State v. Ezell, 321 S.C. 421, 424, 468 S.E.2d 679, 681 (Ct. App. 1996). 

We hold the State introduced sufficient evidence to create a jury question on constructive possession.  The record included evidence Jenkins had dominion and control over the crack cocaine in question because he was driving the car in which the crack cocaine was found, and the crack cocaine was in a sandwich bag on the driver's-side floorboard. 

Moreover, the State provided sufficient evidence to create a jury question of whether Jenkins knew the crack cocaine was in the car and intended to distribute the drugs.  In addition to the crack cocaine's location in the bag on the floorboard, the record established that the amount of crack recovered was nearly seven times greater than the minimum amount sufficient to allow the jury to infer intent to distribute.  Jenkins also continued to flee the police even after an acquaintance who was allegedly forcing Jenkins to flee jumped from the car.  See Ballenger, 322 S.C. at 200, 470 S.E.2d at 854 (noting that "flight . . . is at least some evidence of guilt" for the charge of possession with intent to distribute crack cocaine).  Accordingly, the trial court properly denied the motions for a directed verdict.

Jenkins's remaining arguments are not preserved.  See State v. Bryant, 383 S.C. 410, 418, 680 S.E.2d 11, 15 (Ct. App. 2009) ("An issue must be raised and ruled upon in the [trial] court in order to be preserved for appellate review.").

AFFIRMED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.


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