D. Pwid and Distribution Within Proximity of a School

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

D. PWID AND DISTRIBUTION WITHIN PROXIMITY OF A SCHOOL

1. Elements

South Carolina Code section 44-53-445 provides that a defendant commits a separate offense for PWID or distribution within a half-mile when:

1. the defendant had knowledge he was in, on, or within a half-mile radius of a elementary, middle, or secondary school; a public playground or park; a public vocational or trade school or technical educational center; or private college or university.²⁸⁰

2. the defendant had actual control, or the right to exercise control over the [controlled substance];

3. he knowingly distributed, sold, purchased, manufactured or intended to distribute the [controlled substance];

4. the substance upon analysis was, in fact, a [controlled substance]; and

5. the distribution occurred within a one-half mile radius of the grounds of an elementary, middle, secondary, or vocational school; public playground or park; or college or university.²⁸¹

A person guilty of this section is guilty of a felony and fined not more than $10,000 or ten years' imprisonment, or both. For purchases of a controlled substance, a person is guilty of a misdemeanor and fined not more than $1,000 or one-year imprisonment, or both.

To prove the first element, the State must prove that the defendant had knowledge that he was within the half-mile radius. Knowledge means awareness "that [a certain] result is practically certain to follow from . . . conduct."²⁸²

To prove the second element, PWID or distribution, the State must prove the same elements as required for PWID or distribution. In regard to PWID, the statutory amounts giving rise to inferences of intent to distribute set forth in sections 44-53-370 and 44-53-375 apply equally to the half-mile charge.²⁸³ Section 44-53-445 prohibits only possession with the intent to distribute, not the intent to purchase or manufacture. Controlled substances include all substances listed in Schedules I through V.²⁸⁴

To prove the distance element, the State must prove the PWID or distribution occurred within one-half mile radius of the grounds of a school, public park or public playground.²⁸⁵ "Grounds" means "all school-owned property contiguous to or surrounding the school's physical plant."²⁸⁶ "Radius" means "a straight line drawn from the center of a circle or sphere to any point on its periphery."²⁸⁷ Thus, proximity of the defendant to the school, public playground or public park is measured in a straight line or "as the crow flies."²⁸⁸ Any witness who is aware of the facts upon which his opinion is made may give an estimate of distance.²⁸⁹ In addition, whether a witness's odometer has been calibrated for accuracy prior to measuring the distance of the defendant to the school, public park or playground, goes to the weight of the witness's testimony not to its admissibility.²⁹⁰ "A person must not be convicted of an offense pursuant to subsection (A) if the person is stopped by a law enforcement officer for the controlled substance offense within a one-half mile radius."²⁹¹ Thus, the defendant must have actually sold or intended to distribute while on the property, not that he was merely on the property when he was apprehended by officers.

Finally, to prove the place element, the State must prove the PWID or distribution occurred within a one-half mile radius of any school, public playground, or public park. School includes any public or private elementary, middle, or secondary school; public vocational school, trade school, or technical educational center; and public or private college or university.²⁹² Whether the institution at issue is one of the types of schools enumerated in section 44-53-445 is a question for the jury.²⁹³ In addition, if the indictment clearly alleges that the violation occurred within proximity of a public school, it sufficiently gives the defendant notice that the violation occurred at a public school as provided in section 44-53-445.²⁹⁴

However, the South Carolina Supreme Court has held that certain institutions are excluded from section 44-53-445. A daycare center does not qualify as a school or as a public playground or public park under section 44-53-445.²⁹⁵ Similarly, the statute does not include churches, and amending an indictment to name a school instead of a church is not a scrivener's error.²⁹⁶ Such an amendment changed the nature of the offense because PWID within close proximity to a church is not a crime under section 44-53-445.²⁹⁷ Therefore, in such a case, if the defendant challenges the sufficiency of the indictment before the jury is sworn, the trial court must quash the indictment unless the defendant waives presentment or pleads guilty.²⁹⁸ Thereafter, the solicitor may submit a properly drafted indictment to the grand jury for its consideration.²⁹⁹

2. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment provides: "No person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . ."³⁰⁰ This constitutional protection prevents the State from prosecuting a person twice for the same crime once jeopardy attaches.³⁰¹ "The Double Jeopardy Clause protects against a second prosecution for the same offense ... and protects against multiple punishments for the same offense."³⁰²

When the defendant is charged with violating two distinct statutory provisions arising from the same act or transaction, the rule of double jeopardy, which is known as the Blockburger same-elements test, states:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires an additional fact which the other does not.³⁰³

The Blockburger same-elements test is the only remaining test for determining a double jeopardy violation in both multiple punishment and successive prosecution cases.³⁰⁴ This rule applies equally to the Double Jeopardy Clauses of both the United States and the South Carolina Constitutions.³⁰⁵

To determine if a defendant is in double jeopardy peril, the question is whether the two offenses each have an additional element that the other does not. "The test for determining whether a crime is a lesser included offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. If the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater."³⁰⁶ Thus, if only one has an additional element, the other offense is naturally a lesser-included offense of the first. Conversely, "[i]f the lesser offense requires no proof beyond that required for the greater offense, the two are the same offense for purposes of the Double Jeopardy Clause."³⁰⁷ "The lesser-included offense is included in the greater offense only if each of its elements is always a necessary element of the greater offense."³⁰⁸ If the lesser-included offense meets this test, the greater and lesser offenses are considered the same offense for double jeopardy purposes,³⁰⁹ and the defendant cannot be convicted and punished for both offenses.³¹⁰ However, "[a] claim of double jeopardy is not a question of subject matter jurisdiction and, thus, may not be raised for the first time on appeal."³¹¹ Additionally, a guilty plea waives a defendant's double jeopardy claim.³¹²

To prove the defendant guilty of PWID/distribution within one-half mile, the State must always prove the elements of PWID/distribution. In...