B. Distribution

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

B. DISTRIBUTION

1. Elements

To convict a defendant of distribution, a jury must find beyond a reasonable doubt that the defendant distributed or delivered the drugs to another person. This means the State must prove the defendant actually or constructively transferred or attempted to transfer the drugs to another person.⁶⁹ At the time of the delivery, the defendant must have had actual control or the right to exercise control over the drugs.⁷⁰ In other words, the defendant must have had actual or constructive possession of the controlled substance at the time of the delivery. Possession is a lesser-included offense of distribution.⁷¹

Accordingly, the elements of distribution are:

1. The defendant

2. had actual control or the right to exercise control over a controlled substance,

3. distributed or delivered a controlled substance, and

4. the substance was a controlled substance.

2. The Saga of the Distribution Mental State

The language of the distribution statute is silent as to the mental state required for distribution.⁷² The General Assembly did not include the word "knowledge" or "knowingly" in either section 44-53-370(a) or 44-53-375(B), which sets forth the crime of distribution, or in section 44-53-110, which defines the terms distribute and delivery. However, the General Assembly did use the term "knowledge" in relation to possession in section 44-53-370(c) and 44-53-375(A) and in relation to trafficking in section 44-53-370(e) and 44-53-375(C). Therefore, looking at the plain language of the statute, the General Assembly apparently intended to exclude the knowledge element from distribution.⁷³ The South Carolina Supreme Court held in State v. Ferguson,⁷⁴ the State must prove the defendant was at least criminally negligent when he distributed drugs.⁷⁵ A defendant "acts negligently when [he] 'inadvertently creates a substantial and unjustifiable risk of which [the defendant] ought to be aware.'"⁷⁶ "Thus, a defendant's subjective knowledge of the risk is irrelevant for criminal negligence."⁷⁷ Thus, according to Ferguson, the State does not have to prove the defendant acted knowingly or with the intent to distribute drugs to another person; the State must only show the defendant negligently delivered the drugs.

However, subsequent to Ferguson the South Carolina appellate courts have decided several cases indicating the State must prove the defendant acted knowingly in the distribution. While the drug code does not include the word "knowingly" in the distribution provisions,⁷⁸ it does in the trafficking provisions.⁷⁹ In holding that the defendant was not entitled to a lesser-included offense instruction for conspiracy to distribute cocaine, the S.C. Supreme Court in State v. Raffaldt,⁸⁰ stated: "It is the amount of cocaine, rather than the criminal act, which triggers the trafficking statute and distinguishes trafficking from distribution and simple possession."⁸¹

The next year, the court of appeals decided State v. Watts,⁸² an indictment variance case, wherein the court of appeals cited to the trial court's instruction that an essential element of distribution was that the defendant "knowingly distributed or delivered the [drugs]." The court did not indicate an error in the charge by including the knowingly mental state.

In State v. Gill,⁸³ the court of appeals addressed the issue of the mental state for distribution of crack cocaine. Unlike the indictment and charge in Watts, the Gill indictment did not include "knowingly" or any other mental state. The defendant challenged the sufficiency of the indictment. The court stated:

With regard to Gill's allegations that the indictments must allege that he "knowingly" distributed the drugs, we note neither Section 44-53-375 nor Section 44-53-445 includes "knowingly" as an element of the crime. Although Ferguson, Watts, and Brown⁸⁴ list "knowingly" as an element the State must prove for the crime of distribution, none of these cases addressed whether the "knowingly" element must be alleged in the indictment in order to convey subject matter jurisdiction. Upon closer scrutiny, we find they can be read to mean that "knowingly" is merely an element the State must prove to obtain a conviction. If the General Assembly intended a mens rea element in the crimes of distribution and distribution within proximity of a school to be necessary to convey jurisdiction, the requirement would have been listed in the statute. Accordingly, reading the indictments and statutes as a whole, we find the indictments contained the elements necessary to convey jurisdiction, and Gill was sufficiently apprised of the crimes against him.⁸⁵

As a side note, Gill was decided prior to State v. Gentry,⁸⁶ which held that an indictment is a notice document and does not confer subject matter jurisdiction. However, for the purposes of understanding the mental state required for distribution, the Gill opinion is instructive.

The cardinal rule of statutory construction is to ascertain and effectuate the intention of the legislature. However, statutes must be read as whole, and sections which are part of the same statutory scheme must be construed together and each one given effect, if reasonable. Penal statutes are to be construed strictly against the State and in favor of the defendant.⁸⁷ Which brings the discussion to State v. Miles.⁸⁸

The issue in Miles was whether the State had to prove that the defendant knew which controlled substance he was trafficking or if he only had to know that he was trafficking a controlled substance. The underlying crime was distribution. After noting that the text "must be construed in context and in light of the intended purpose of the statute in a manner which harmonizes with its subject matter and accords with its general purpose" and that "a court should not look beyond the statutory text to discern its meaning,"⁸⁹ the court of appeals inspected section 44-53-370 as whole to find its "special context." In doing so, the court again reiterated the only difference between distribution and trafficking is the amount of controlled substance involved, which would indicate that the mental state of subsection (e), which proscribes trafficking by knowingly distributing, is applied back to the no mental state distributing subsection (a), which proscribes distribution in lesser amounts. The court concluded that a defendant does not need to know the specific controlled substance he is trafficking (or distributing with an amount not meeting the trafficking threshold), only that he is trafficking a controlled substance.

So, where does that leave the practitioner? The appellate courts have upheld distribution indictments that have included a knowingly element and those that have not included a mental state element. The courts appear to have tacitly agreed that the act of distribution requires knowledge despite the specific statutory sections remaining silent on mental state. A higher proof requirement benefits the defendant and would make sense if the courts were construing statutory scheme as a whole strictly against the State. This is but one example of the murky waters of the current state of the drug code, and the citizens of South Carolina would be well served if the General Assembly would enact a new, clean, and well-written drug code.

3. Identification

a. Admissibility

Generally, distribution cases are made with the use of confidential informants or undercover law enforcement officers. In a typical distribution scenario, law enforcement will conduct a controlled buy whereby the confidential informant or undercover officer knows the defendant by an alias only and either arranges a buy or goes to a location where the defendant is known to sell drugs. The confidential informant or undercover officer, who may be equipped with audio and/or video equipment to record the transaction while law enforcement officers listen to and/or watch the transaction, then purchases a quantity of drugs from the defendant using documented funds of law enforcement. After the buy is completed, along with giving the drugs to law enforcement officers for testing and evidence storage, the confidential informant or undercover officer will also give a statement, either written or oral, to law enforcement officers describing the buy and describing the person selling the drugs.

Subsequently, based either upon the statement of the confidential informant or undercover officer or based upon their personal knowledge of the defendant's identity, law enforcement officers will identify a person they believe to be the defendant as the person who sold the drugs to the confidential informant or undercover officer. If necessary, the officers will verify the identification via a pre-trial identification, such as a line-up or photo array, by the confidential informant or undercover officer. The defendant is then arrested for distribution, or the alleged distribution is used as the basis for a search warrant to search the defendant and his property for drugs. At trial, to prove the defendant distributed the drugs, the confidential informant or officer must identify the defendant as the person who distributed drugs to the informant or officer.

To convict the defendant of distribution, the State must prove the identity of the defendant beyond a reasonable doubt.⁹⁰ This means the State must prove the defendant was the person who distributed the drugs, and the defendant is entitled to a charge instructing the jury regarding the State's identity burden.⁹¹ When the State fails to present evidence of identity reasonably tending to prove the defendant was the distributor of the drugs, the trial judge must grant the defendant's motion for a directed verdict of not guilty.⁹² Thus, defense counsel would be well-served by moving to suppress any pre-trial or in-court identifications on the grounds that the circumstances surrounding the identification of the defendant were unduly suggestive. However, failure to make a...