§ 4-11(a) Possession of Cocaine with Intent to Distribute

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2012 Ed.)

§ 4-11(a) Possession of Cocaine with Intent to Distribute

The defendant is charged with possession of cocaine with intent to distribute.

Section 44-53-370(a)(1) of the South Carolina Code of Laws provides:

(a) Except as authorized by this article it shall be unlawful for any person:
(1) to ...possess with the intent to...distribute ...a controlled substance ....

There are three elements to the offense of possession of cocaine with intent to distribute 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 the defendant possessed the cocaine with intent to distribute.

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 defendant must possess the cocaine with intent to distribute.

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.

Possession may be inferred from the circumstances and may be imputed to anyone who has the power and intent to control the disposition and use of the object. In other words, possession of an object or premises gives rise to an inference that the person charged has both the power and intent to control the use and disposition of the object. Actual knowledge of the presence of the controlled substance is strong evidence of intent to control its disposition or use. Mere presence of a person in an area where the object is found is not enough in and of itself to give rise to the necessary inference. 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 means the defendant's knowledge and possession may be inferred if the controlled substance was found on premises under the defendant's control. This is a permissive inference. The jury is free to accept or reject this permissive inference of knowledge and possession depending upon your view of the evidence.

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. Because actual knowledge of the presence of a controlled substance is such strong evidence of intent to control its disposition or use, that knowledge may be equated with or substituted for the intent element. However, actual knowledge of the presence of a controlled substance is not the only circumstance under which this intent to control the disposition or use of a controlled substance can be inferred.

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.

Finally, the State must prove the defendant possessed the cocaine with the intent to distribute. Under this charge, the State is not required to prove a distribution or sale. The State is only required to show an intent to distribute.

What then is intent in the law? Criminal intent is a state of mind which operates jointly with an act or omission in the commission of a crime. Criminal intent is a mental state of conscious wrongdoing. Criminal intent includes those consequences which: (a) represent the very purpose for which an act is done; or (b) are known to be substantially certain to result, regardless of one's desire. Intent may be shown by acts and conduct of the defendant and other circumstances from which you may naturally and reasonably infer intent.

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