§ 4-1 Trafficking in Cocaine

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2023 Ed.)

§ 4-1 Trafficking in Cocaine

The defendant is charged with trafficking in cocaine.

Section 44-53-370(e)(2) of the South Carolina Code of Laws states:

(e) 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:

(2) ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4), is guilty of a felony which is known as 'trafficking in cocaine.'

There are three elements to this offense that the State must prove beyond a reasonable doubt:

(1) that the substance involved was in fact cocaine;

(2) that the defendant had possession of that cocaine, either actual possession or constructive possession; and

(3) that there were in fact ten (10) grams or more of cocaine involved.

Section 44-53-210(b)(4) of the South Carolina Code of Laws provides that cocaine in any form is a controlled substance under the law of this State.

The substance must be cocaine, the defendant must have actual or constructive possession of the cocaine, and the amount involved must be ten (10) grams or more of cocaine.

The State must prove that the substance involved is in fact cocaine.

The State must further prove the defendant had actual or constructive possession of the cocaine. What does possession of cocaine mean under the law? The law says cocaine in any form is a controlled substance. Possession means more than simply having a controlled substance in one's possession. There must be knowing possession. The State must prove possession of the cocaine by the defendant and the further fact that the defendant knew he had the cocaine in his possession.

By way of illustration, something may be found in the possession of a person and if that person did not know that he had possession of the item and had not exercised any affirmative act to get possession of the item, but by some accident it came into his possession without his knowledge, there would be no violation of the law. However, if one knowingly has in his possession a controlled substance, then he is unlawfully in possession of that item. The State must demonstrate beyond a reasonable doubt that the defendant was in possession of the cocaine, that he knew he had it in his possession, and that he knew the item was a controlled substance under the law of this State.

The State is not required to show the purpose for which the defendant may have had possession of the cocaine. That is not a part of the State's required degree of proof. The State must show beyond a reasonable doubt that there was possession of the cocaine and that the defendant knew he had the cocaine in his possession.

There are two kinds of possession recognized in the law of this State:

(1) actual possession; and

(2) constructive possession.

Actual possession occurs when the controlled substance is found to be in the actual physical custody of the person charged with possession.

Constructive possession is when a person has dominion or control, or the right to exercise dominion or control, over either the object or the premises upon which the object is located.

Mere presence of a person in an area where the object is found is not enough in and of itself to prove possession. Proof of possession requires more than proof of mere presence at the place where the controlled substance is found. The State must prove the defendant had both (1) the power—that is, actual or constructive control; and (2) the intent to control its disposition or use.

Actual control occurs when the controlled substance is found to be in the actual physical custody of the person charged. Constructive control occurs when the person charged with possession has dominion and control over either the controlled substance or the premises upon which the controlled substance is found.

Constructive control may be established by circumstantial evidence as well as by direct evidence and constructive control may be jointly shared by two or more individuals.

The mere presence of a defendant where the controlled substance is found or the mere association by a defendant with people who possess the controlled substance is insufficient proof that the defendant himself possessed the controlled substance. Possession requires more than mere presence.

Evidence that an individual is present at the time a controlled substance is found or located is not in and of itself sufficient proof that the individual had actual or constructive possession of the controlled substance. Proof of constructive possession by the defendant requires that the State show beyond a reasonable doubt that the defendant had dominion and control over the controlled substance or had the right to exercise dominion and control over the controlled substance. Stated in other terms, the State must prove beyond a reasonable doubt that the defendant had both the power and intent to control the disposition or use of the controlled substance.

If you find from the evidence or the lack of evidence that the defendant was merely present at a scene where the cocaine was found or merely associated with persons who possessed cocaine and do not find beyond a reasonable doubt that the defendant had dominion or control or the right to exercise dominion and control over the cocaine, then the defendant would not be guilty.

In summary, before you can find the defendant guilty of trafficking in cocaine, the State must prove the following elements beyond a reasonable doubt:

(1) the substance was in fact cocaine, a controlled substance under the law of this State;

(2) the defendant had possession of the controlled substance; and

(3) the amount of the controlled substance was ten (10) grams or more of cocaine.

NOTE: The offense of trafficking in cocaine is divided into five sections for punishment purposes under section 44-53-370(e)(2)(a) (b) (Supp. 2010):

(a) ten grams or more, but less than twenty-eight grams:

1. for a first offense, a term of imprisonment of not less than three years nor more than ten years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;

2. for a second offense, a term of imprisonment of not less than five years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

3. for a third or subsequent offense, a mandatory minimum

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