C. Pwid and Distribution: Merger

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

C. PWID AND DISTRIBUTION: MERGER

PWID is not a lesser-included offense of distribution. However, in one particular factual scenario, PWID merges into distribution, and the defendant cannot be convicted of both crimes. State v. Brown²⁷¹ illustrates the circumstances in which the two offenses merge.

In Brown, the defendant Brown pre-arranged with an undercover officer to sell a quantity of crack cocaine to the officer. At the meeting, the officer asked Brown for four ounces of crack cocaine. Brown left the meeting and returned with the four ounces of crack cocaine. At that point, the officer indicated that he only wanted two ounces. Brown indicated the crack cocaine would have to be reweighed for two ounces, and Brown and the officer went to an apartment where the sale of two ounces was completed. Brown was arrested, and a search of the apartment recovered two ounces of crack cocaine in a red sports bag.

Brown was charged with distribution of the two ounces sold to the officer and with PWID crack cocaine for the two ounces found in the sports bag. The State argued the crack cocaine in the sports bag was the remainder from the four ounces the officer originally requested; therefore, the defendant intended to distribute this amount. Brown argued he could not be convicted of both PWID and distribution because under these facts PWID was a lesser-included offense of distribution, thus, convicting him of both offenses would be unconstitutional.

The court of appeals agreed with Brown. In this factual context, where the two offenses arise from a single act, the PWID drug did not exist separately from the distributed drug at the moment the sale was completed with the undercover officer.²⁷² When the State relies upon evidence of a sale to prove intent to distribute the remaining drugs not sold...