B. Miscellaneous Possession Issues

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

B. MISCELLANEOUS POSSESSION ISSUES

1. Joint Possession

In South Carolina two or more persons may jointly possess the same contraband.¹⁰⁵ The S.C. Supreme Court has upheld the possession with intent to distribute convictions of a husband and wife regarding the same heroin.¹⁰⁶ The appellate courts have also affirmed possession-related convictions regarding jointly shared controlled substances where the defendants had no special relationship but where all the defendants knowingly had the power and the intent to control the drugs.¹⁰⁷ Therefore, drugs may be possessed jointly, but the burden remains on the State to prove each element of possession in relation to each defendant.

2. Amount

Obviously, the State must prove that what the defendant possessed was a controlled substance. However, to convict a defendant of possession, is the State required to prove the defendant possessed a measurable amount of contraband? The S.C. Supreme Court answered that question in State v. Robinson.¹⁰⁸

The evidence presented against the defendant, viewed in a light most favorable to the State, established that officers made a sweep through a bar known for drug use. The defendant, seeing the officers in the bar, threw a makeshift crack pipe into a trash can. An officer observed the defendant's activity and recovered the pipe and a plastic vial from an otherwise empty trash can. Chemical analysis found trace amounts of cocaine in the vial and pipe but insufficient amounts to weigh. Based on the minimal amount of cocaine found, the defendant moved for a directed verdict, which was denied.

The court of appeals first heard the case and held a defendant must possess a "measurable amount" of the drug in order to be convicted of possession.¹⁰⁹ In upholding the conviction, the court found that circumstantial evidence reasonably tended to prove the defendant possessed a measurable amount of cocaine at a time reasonably contemporaneous with his arrest.¹¹⁰

The S.C. Supreme Court also affirmed the defendant's conviction.¹¹¹ However, the court disagreed with the court of appeals and held that a measurable amount of controlled substance is not necessary to convict a defendant of possession. After reviewing the language of section 44-53-370 in an attempt to ascertain legislative intent, the court held the statute does not require a minimum amount for conviction.¹¹² Therefore, evidence establishing the possession of any amount of the controlled substance for which the defendant is being prosecuted will sustain a conviction.

The court then addressed whether having too little contraband to see with the naked eye makes it impossible for the State to prove the defendant knowingly possessed the...