§ 4-3 Trafficking in Illegal Drugs

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

§ 4-3 Trafficking in Illegal Drugs

The defendant is charged with trafficking in illegal drugs.

Section 44-53-370(e)(3) of the South Carolina Code of Laws reads:

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, 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

(3) four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four grams or more of any mixture containing any of these substances, is guilty of a felony which is known as 'trafficking in illegal drugs.'

There are three elements to the offense of trafficking in illegal drugs, that the State must prove beyond a reasonable doubt:

(1) that the substance involved was in fact four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances.

(2) that the defendant had possession of that four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances, either actual or constructive possession, and

(3) that there were in fact four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances involved.

The substance must be four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances, the defendant must have actual or constructive possession of the four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances, and the amount involved must be four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances.

The State must prove that the substance involved is in fact four (4) grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four (4) grams or more of any mixture containing any of these substances.

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