A. Possession and Its Elements

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

A. POSSESSION AND ITS ELEMENTS

The South Carolina Code proscribes possessing a controlled substance without a valid prescription.¹ In addition, most drug-related crimes involve the key element of possession.² Possession prosecutions pursuant to the drug code³ only involve substances outlined in Schedules I through V;⁴ ephedrine, pseudoephedrine, and phenylpropanolamine;⁵ aromatic hydrocarbons,⁶ and anabolic steroids.⁷ Unless the State proves beyond a reasonable doubt that the defendant possessed one of these substances, the defendant cannot be convicted of possession. Thus, the State must prove the defendant knowingly possessed a controlled substance.⁸ Regarding the elements of possession, the South Carolina Supreme Court has stated:

The elements necessary for conviction of possession of marijuana are set out in the case of State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974), which states that the accused has such possession as is necessary for conviction "when he has both the power (actual or constructive control) and intent to control its disposition or use," 263 S.C. at 22, 207 S.E.2d at 413. As we read the [Brown] case, all that was intended by the term "knowledge" in the quotation upon which the appellant relies is that the accused must have an "intent to control its (the drug's) disposition or use." It is true that actual knowledge of presence is such strong evidence of intent to control disposition or use that "knowledge" can often be equated with and substituted for the intent element. However, actual knowledge of physical presence is not the only circumstance from which the intent to control the disposition or use of an illegal substance can be inferred.⁹

To break it down, possession requires a power element, which may be actual or constructive.¹⁰ "Actual possession occurs when the drugs are found in the actual physical custody of the person charged with possession."¹¹ In contrast, constructive possession occurs when the circumstances establish that, while the defendant did not physically possess the drugs, he did have "dominion and control, or the right to exercise dominion and control, over the drugs or the premises on which the drugs are found."¹² The power element is then combined with knowledge of or intent to possess a controlled substance.¹³ The State is not required to prove that the defendant knew the specific drug he possessed, only that he knew he possessed a controlled substance.¹⁴

1. The Power Element: Constructive and Actual Possession

a. Constructive Possession

(1) Elements of Constructive Possession

To establish a defendant constructively possessed a controlled substance, the State must prove a defendant had both:

(1) Power over the controlled substance and

(2) Intent to control the disposition or use of the controlled substance.¹⁵

Being fact-sensitive, "[c]onstructive possession can be established by circumstantial as well as direct evidence" or a combination of the two.¹⁶

Control of the premises where drugs are found gives rise to the permissive inference that the person in control of the premises constructively possesses any drugs found thereon.¹⁷ However, the trial judge must instruct the jury that it is "free to accept or reject [such a] permissive inference of knowledge and possession depending upon its view of the evidence."¹⁸ Failure to so instruct the jury is reversible error.¹⁹

The issue of constructive possession often arises where another person, in addition to the defendant, has the right to maintain control over the premises. State v. Hudson²⁰ addressed the constructive possession permissive inference regarding husband and wife defendants. In Hudson, an officer went to the defendants' home pursuant to a search warrant. The wife answered the officer's knock and told the officer her husband was at work. She then shut the door and telephoned her husband. The officer went to the back door and knocked. He heard people running, so he kicked in the door and ran upstairs. After the officer discovered the wife in the bathroom, he retrieved three cellophane bags of heroin from the toilet and a fourth bag from beside the toilet. Officers also found drug paraphernalia in the home. The police arrested the wife. After the wife was arrested, defendants' daughter telephoned the husband in his van, informing him of the day's events. The husband did not go home nor did he go to the police station to see his wife. Approximately three hours later he was arrested after being stopped on the highway. He stated he was "just driving around." At trial, the wife denied knowing anything about the drugs found in her home.

In upholding the denial of a directed verdict, the South Carolina Supreme Court recognized the principle that "[w]here contraband materials are found on premises under the control of the accused, this fact in and of itself gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury."²¹ Therefore, because both defendants shared control of their home, the State presented sufficient evidence to submit the case to the jury.²²

A landlord-tenant case involving the constructive possession permissive inference is State v. Ellis.²³ Here, an owner owned a two-story residence in which she occupied the downstairs portion. A renter and her foster son occupied the upstairs of the residence. An undercover officer went to the upstairs apartment and purchased a quantity of heroin from the foster son while the owner was present. In subsequent days, the officer purchased heroin eight more times from the foster son. On several occasions, the foster son went downstairs to obtain the heroin.

Pursuant to a search warrant, officers searched the residence, both upstairs and downstairs. At the time, the foster son and the renter were in the upstairs apartment, where no drugs were found. Downstairs, no one was home. In the small bedroom downstairs, officers retrieved 100 bags of heroin, and in the master bedroom officers retrieved $743.15.

At trial, the foster son stated he purchased 75 bags of heroin two months earlier, and he admitted to selling heroin to the undercover officer. The foster son also admitted he purchased heroin one month earlier and stored it in the small bedroom downstairs. It was from this bedroom that he obtained the heroin when making sales from the upstairs apartment. The foster son testified the owner did not know he was storing heroin in the small bedroom. He further testified he gained entry to the downstairs with a key, and the owner did not know he had the key.

Because the drugs were found in the owner's residence and because she had been present at a drug transaction in the upstairs apartment, the State presented sufficient evidence to show at least constructive possession by the owner. The S.C. Supreme Court affirmed the trial judge's denial of a directed verdict in regard to the owner. However, the court found the evidence against the renter insufficient to submit the case to the jury. Although testimony was given that the renter resided with the foster son in the upstairs apartment where the foster son sold heroin, the court found that "[e]ven though [the renter] may have been present at the time of these sales, there is no evidence that she participated therein or at any time had any actual or constructive possession of heroin."²⁴ Therefore, the S.C. Supreme Court held that the trial judge erred in failing to grant the renter's directed verdict motion.

A final constructive possession case is State v. Heath,²⁵ which involved a mother and her adult son who resided together in the home the mother owned. Police officers obtained a search warrant to search the premises for crack cocaine. In addition to evidence that the defendant appeared to have just finished washing his car in front of the house, officers also found a car washing mitt that contained a large quantity of crack cocaine in a recycling bin outside near the backdoor of the house. The jury convicted the defendant of trafficking crack cocaine. The S.C. Supreme Court reversed the defendant's conviction for trafficking. The court held the State failed to present sufficient evidence that the defendant had dominion and control over the property where the crack cocaine was found. The fact that the mother owned the home created the argument "that [the defendant] merely had a right to access the area where the crack was found, not actual dominion and control over the property."²⁶

(2) Circumstantial Evidence of Constructive Possession

State v. Bultron²⁷ demonstrates facts where circumstantial evidence establishes the defendants' constructive possession of cocaine. Based on information from a confidential informant that he had seen a quantity of cocaine at a local motel, officers set up surveillance outside the motel room. After approximately five hours passed, two men exited the room. One went to a van and got in the driver's seat, and the other walked down the corridor and waved. Three more men exited the corridor, two of whom entered the van. The third man opened the back door of the van and then entered the van. The one man who was not in the van yet looked up and down the parking lot, went back up to the catwalk by the room and looked left and right, adjusted a weapon under his shirt, and waved. Thereafter, two more men, who were carrying luggage, exited the corridor, went to the van, placed the luggage in the back of the van, closed the van's back door, and entered the van. Finally, the defendant closed the van's side door and got into the front passenger seat. The van pulled out of the parking lot, and the police stopped the van a short distance from the motel. The driver and the passengers were arrested, and the police found about nine pounds of cocaine and several thousand dollars in cash in the bags in the back of the van. All the occupants of the van were convicted of trafficking in cocaine and of transportation of cocaine.

The defendants appealed the denial...