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2012-UP-069 - State v. Ontiverous

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.

Miguel Angel Ontiverous, Appellant.


Appeal From Spartanburg County
J. Mark Hayes, II, Circuit Court Judge


Unpublished Opinion No. 2012-UP-069
Submitted January 3, 2012 – Filed February 8, 2012   


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 J. Barnette, of Spartanburg, for Respondent.

PER CURIAM: Miguel Angel Ontiverous appeals his convictions for trafficking in marijuana and possession of a weapon during the commission of or attempt to commit a violent crime, arguing the trial court erroneously denied his motion for a directed verdict because the State failed to prove the knowledge element of the crime.  We affirm.[1]

"When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight."  State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  "When reviewing a denial of a directed verdict, [an appellate court] views the evidence and all reasonable inferences in the light most favorable to the [S]tate."  Id.  An appellate court must find the case was properly submitted to the jury if any direct or substantial circumstantial evidence reasonably tends to prove the guilt of the accused.  Id. at 292-93, 625 S.E.2d at 648. 

"Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of . . . ten pounds or more of marijuana is guilty of     . . . 'trafficking in marijuana.'"  S.C. Code Ann. § 44-53-370(e)(1) (Supp. 2010).  "In drug cases, the element of knowledge is seldom established through direct evidence, but may be proven circumstantially."  State v. Hernandez, 382 S.C. 620, 624, 677 S.E.2d 603, 605 (2009).  "Knowledge can be proven by the evidence of acts, declarations, or conduct of the accused from which the inference may be drawn that the accused knew of the existence of the prohibited substances."  Id.  "[E]vidence of weapons may be relevant to show intent in a drug prosecution."  State v. Wilson, 315 S.C. 289, 295, 433 S.E.2d 864, 868 (1993).

Here, the State presented substantial circumstantial evidence tending to prove Ontiverous's guilt when viewed, together with all reasonable inferences, in the light most favorable to the State.  Testimony established Ontiverous's connection with the person who organized the delivery of a marijuana package.  Ontiverous drove his truck from Greenville to a meeting with a person (Witness) who knew the delivery address in Duncan for a package containing marijuana.  Ontiverous's passenger was someone connected with the organizer.  Moreover, the officers found a gun in the cocked position, ready to fire, in Ontiverous's waistband and a cooler containing a set of digital scales and plastic baggies in his truck.  Officers testified that most of the "trafficking level offenders in the narcotics business" are armed and digital scales and plastic baggies are used to separate a large quantity of drugs into individual bags. 

Furthermore, Ontiverous's acts and conduct permit an inference he knew of the existence of marijuana in the package.  Specifically, Ontiverous backed his truck into the driveway of the house where the package was located instead of pulling forward.  An officer testified this maneuver is known for allowing a fast departure.  Additionally, Ontiverous did not remain in his truck but followed his passenger and Witness behind the house where Witness had placed the marijuana package.  Therefore, the trial court properly submitted the case to the jury.

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


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