§ 4-14(b) Possession of Opium with Intent to Distribute

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

§ 4-14(b) Possession of Opium with Intent to Distribute

The defendant is charged with possession of opium 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 opium with intent to distribute that the State must prove beyond a reasonable doubt:

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

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

(3) that the defendant possessed the opium with intent to distribute.

The South Carolina Code of Laws provides that opium in any form is a controlled substance under the law of this State.

The substance must be opium, the defendant must have actual or constructive possession of the opium, and the defendant must possess the opium with intent to distribute.

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

The State must further prove the defendant had actual or constructive possession of the opium. What does possession of opium mean under the law? The law says opium 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 opium by the defendant and the further fact that the defendant knew he had the opium 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 opium, 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 opium. 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 opium and that the defendant knew he had the opium 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 opium was found or merely associated with persons who possessed opium 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 opium, then the defendant would not be guilty.

Finally, the State must prove the defendant possessed the opium 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.

Section 44-53-110 of the South Carolina Code of Laws provides: "'Distribute' means to deliver (other than by administering or dispensing) a controlled substance." It means the actual or constructive transfer of the controlled substance with or without payment. Section 44-53-110 further states: "'Deliver' or 'delivery' means the actual, constructive, or attempted transfer of a controlled drug or paraphernalia whether or not there exists an agency relationship." Sale is defined in the law as the act of selling, the exchange of property of any kind for an agreed sum of money or other valuable consideration.

In summary, before you can find the defendant guilty of possession of opium with intent to distribute, the State must prove the following elements beyond a reasonable doubt:

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

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

(3) the defendant possessed the opium with intent to distribute.

There is a further provision in the law in regard to possession with intent to distribute opium. Section 44-53-370(d)(4) of the South Carolina Code of Laws creates a permissive inference that possession of more than four grains of opium constitutes possession of opium with intent to distribute. Thus, section 44-53-370(d)(4) provides that possession of...