§ 4-17 Possession of Cocaine

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

§ 4-17 Possession of Cocaine

The defendant is charged with possession of cocaine.

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

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice . . . .

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.

There are two elements to the offense of possession of cocaine that the State must prove beyond a reasonable doubt:

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

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

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 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...