§ 4-20 Possession of Marijuana

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

§ 4-20 Possession of Marijuana

The defendant is charged with possession of marijuana.

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 44-53-190(d) of the South Carolina Code of Laws provides that marijuana is a controlled substance under the law of this State.

Section 44-53-110 of the South Carolina Code of Laws states:

"Marijuana" means:

(1) all species or variety of the marijuana plant and all parts thereof whether growing or not;

(2) the seeds of the marijuana plant;

(3) the resin extracted from any part of the marijuana plant;

(4) every compound, manufacture, salt, derivative, mixture, or preparation of the marijuana plant, marijuana seeds, or marijuana resin.

"Marijuana" does not mean:

(1) the mature stalks of the marijuana plant or fibers produced from these stalks;

(2) oil or cake made from the seeds of the marijuana plant;

(3) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom);

(4) the sterilized seed of the marijuana plant which is incapable of germination.

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

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

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

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

The State must further prove the defendant had actual or constructive possession of the marijuana. What does possession of marijuana mean under the law? The law says marijuana 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 marijuana by the defendant and the further fact that the defendant knew he had the marijuana 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 marijuana, 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 marijuana. 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 marijuana and that the defendant knew he had the marijuana 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...