§ 4-4(a) Trafficking in Marijuana

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

§ 4-4(a) Trafficking in Marijuana

The defendant is charged with trafficking in marijuana.

Section 44-53-370(e)(1) of the South Carolina Code of Laws states:

(e) 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, cultivate, 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:

(1)ten pounds or more of marijuana is guilty of a felony which is known as 'trafficking in marijuana.'

There are three elements to this offense that the State must prove beyond a reasonable doubt:

(1) that the substance involved was in fact marijuana;
(2) that the defendant had possession of that marijuana, either actual possession or constructive possession; and
(3) that there were in fact ten (10) pounds or more of marijuana involved.

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.

The substance must be marijuana, the defendant must have actual or constructive possession of the marijuana, and the amount involved must be ten (10) pounds or more of marijuana.

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.

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...