Chapter 21 Narcotics

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 21 Narcotics

A. The Statutes

The statutes are simply too long and too detailed to reprint here in any useful manner. In addition, for the purposes of this work, the focus will not be on the regulatory aspect of the narcotics laws as they pertain to the pharmaceutical, or medical industry. The focus will be on the more typical crimes referenced below, i.e., possession, distribution, and trafficking of illegal narcotics. The following is a list of the most relevant drug statutes:

1. Definitions

§ 44-53-310: Narcotics and Controlled Substances

2. Drug Schedules

§ 44-53-160: Manner in which changes in schedule of controlled substances shall be made
§ 44-53-170: Nomenclature of controlled substances in schedules
§ 44-53-180: Tests for inclusion of substance in Schedule I
§ 44-53-190: Schedule I
§ 44-53-200: Tests for inclusion of substance in Schedule II
§ 44-53-210: Schedule II
§ 44-53-220: Tests for inclusion of substance in Schedule III
§ 44-53-230: Schedule III
§ 44-53-240: Tests for inclusion of substance in Schedule IV
§ 44-53-250: Schedule IV
§ 44-53-260: Tests for inclusion of substance in Schedule V
§ 44-53-270: Schedule V

3. Penalty Statutes

§ 44-53-370: Prohibited acts A; penalties
§ 44-53-375: Possession, distribution, and manufacture of ice, crank, crack cocaine prohibited; penalties
§ 44-53-376: Disposal of waste from production of methamphetamine
§ 44-53-378: Exposing child to methamphetamine
§ 44-53-380: Prohibited acts B; penalties
§ 44-53-390: Prohibited acts C; penalties
§ 44-53-391: Unlawful to advertise for sale, manufacture, possess, sell or deliver, or to possess with intent to sell or deliver, paraphernalia
§ 44-53-392: Weight of controlled substance
§ 44-53-398: Sale of products containing ephedrine or pseudoephedrine
§ 44-53-400: Penalties in article in addition to those under other laws
§ 44-53-410: Prosecution in another jurisdiction shall be bar to prosecution
§ 44-53-420: Attempt, conspiracy, and penalties
§ 44-53-440: Distribution to persons under eighteen
§ 44-53-445: Distribution of controlled substances within proximity of school
§ 44-53-450: Conditional discharge; eligibility for expungement
§ 44-53-460: Reduced sentence for accommodation offenses
§ 44-53-470: "Second or subsequent offense" defined
§ 44-53-475: Money laundering - Financial transactions, monetary instruments, or financial institutions, involving property or proceeds of unlawful activities in narcotic drugs or controlled substances

It is beyond the scope of the present work to summarize all of the preceding code sections. The focus will be on the major aspects of typical drug crimes: possession, distribution, and trafficking, etc. In addition, the practitioner should always check and recheck the statutes themselves, especially the penalty sections. The drug laws, more than most, are the constant object of changes large and small by the legislature.

B. Elements

1. Possession

"Possession" of illegal narcotics is not a crime. "Possession" is always "knowing possession." State v. Davis, 812 S.E.2d 423 (S.C. Ct. App. 2018); McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 481-90 (6^th ed. 2013); State v. Freeland, 91 S.E. 3 (S.C. 1916); State v. Ham, 180 S.E.2d 628 (S.C. 1971); State v. Tindall, 665 S.E.2d 188, (S.C. Ct. App. 2008), and especially the recent case of State v. Hernandez, 677 S.E.2d 603 (S.C. 2009) (defense motion for directed verdict should have been granted, facts not sufficient to show "knowledge," vehicles driving in tandem and federal agent's testimony that conduct was consistent with drug transaction is not sufficient to show "knowledge."). See generally S.C. Code Ann. § 44-53-370(c). In addition, possession may be actual or constructive. State v. Stanley, 615 S.E.2d 455 (S.C. 2005).

Actual possession occurs when the drugs are found to be in the actual physical custody of the person charged with possession. State v. Ballenger, 470 S.E.2d 851 (S.C. 1996); State v. Hudson, 284 S.E.2d 773 (S.C. 1981). In order to prove constructive possession, the State must show the defendant had dominion and control, over either the drugs or the premises upon which the drugs were found. Ballenger, 470 S.E.2d 851, 854 (S.C. 1996). Such possession can be established by circumstantial or direct evidence or a combination of the two. State v. Brown, 227 S.E.2d 674 (S.C. 1976). Possession requires more than mere presence. State v. Muhammed, 524 S.E.2d 637 (S.C. Ct. App. 1999). State v. Wise, 252 S.E.2d 294 (S.C. 1979) (Defendant's presence in vehicle containing drugs is insufficient standing alone to convict of possession.); State v. Kimbrell, 362 S.E.2d 630 (S.C. 1987); State v. Robinson, 412 S.E.2d 411 (S.C. 1991); and State v. Brownlee, 455 S.E.2d 704 (S.C. Ct. App. 1995).The State must show the defendant had dominion or control over it. Id., and Stanley, 615 S.E.2d at 464-465; State v. Ellis, 207 S.E.2d 408, 413 (S.C. 1974); State v. Bowers, 392 S.E.2d 482 (S.C. Ct. App. 1990); State v. Mollison, 459 S.E.2d 88 (S.C. Ct. App. 1995); State v. Gore, 456 S.E.2d 419 (S.C. Ct. App. 1995); State v. Peay, 468 S.E.2d 669 (S.C. Ct. App. 1996); State v. Jennings, 515 S.E.2d 107 (S.C. Ct. App. 1999); and State v. Williams, 552 S.E.2d 54 (S.C. Ct. App. 2001). In addition, "intent" to exercise control over drugs may satisfy the "control" element for "constructive possession." State v. Tabory, 196 S.E.2d 111 (S.C. 1973); State v. Lane, 245 S.E.2d 114 (S.C. 1978); State v. Kimbrell, 362 S.E.2d 630 (S.C. 1987); Solomon v. State, 443 S.E.2d 540 (s.C. 1994); State v. Brownlee, 455 S.E.2d 704 (S.C. Ct. App. 1995); and State v. Cude, 218 S.E.2d 240, 241 (S.C. 1975). An interesting constructive possession case in the context of trafficking is State v. Perry, 595 S.E.2d 883 (S.C. Ct. App. 2004). In Perry the court upheld Perry's conviction for 100-1000 marijuana plants even though 456 plants were actually on property adjacent to the defendant's residence. Among other things, the Perry court relied on the fact that water hoses from a pump house behind the defendant's residence ran to marijuana plots on the adjacent property. In State v. Heath, 635 S.E.2d 18 (S.C. 2006), the court found insufficient evidence of constructive possession where crack was found in a car-washing mitt in a recycling bin outside the back door of the defendant's mother's home. No evidence linked Heath to the crack.

In the context of drug cases, an issue arises as to whether the defendant knows the exact nature and quantity of the drugs. State v. Miles, 805 S.E.2d 204 (S.C. Ct. App. 2017) (trial judge's instructions, including his initial charge that criminal intent consisted of "conscious wrongdoing," conveyed the pertinent legal standards to the jury, and trial judge further correctly charged that the State still bore the burden of proving the drug quantity and identity).

2. Intent to Distribute and Distribution

Possession with intent...