A. Possession with the Intent to Distribute (pwid)

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

A. POSSESSION WITH THE INTENT TO DISTRIBUTE (PWID)

1. Elements

As the name suggests, a defendant is guilty of possession with the intent to distribute (PWID) when he illegally possesses a substance with the intent to distribute that substance.¹ Although, section 44-53-370(a) also proscribes possession of a controlled substance with the intent to manufacture, dispense, deliver, or purchase, each offense requires the same proof of possession and proof of intent by circumstantial or direct evidence, and intent for each offense may be inferred from proof of the statutory amount. Therefore, the author will refer only to PWID.

"Distribute" is defined as "to deliver (other than by administering or dispensing) a controlled substance."² "Delivery" means "the actual, constructive, or attempted transfer of a controlled drug or paraphernalia whether or not there exists an agency relationship."³ Therefore, the elements of PWID are:

(1) The defendant knowingly possessed

(2) a controlled substance as set forth in Schedules I through V⁴ or ephedrine, pseudoephedrine, and phenylpropanolamine.⁵

(3) with the intent to transfer the controlled substance

(4) to another party.

As with possession, a defendant must possesses a substance listed in element (2) to be convicted of PWID under the provisions of the drug code.

a. Possession

The evidence required to prove the possession element of PWID is the same as that required to prove the defendant guilty of simple possession.⁶ Thus, the State must prove the defendant knowingly possessed a controlled substance.⁷ If the State proves the defendant possessed the controlled substance without sufficient proof of intent to distribute, the defendant may be found guilty of the lesser-included offense of simple possession.⁸ However, the defendant cannot be convicted of both possession and PWID for the same conduct.⁹

b. Intent to Distribute

(1) Directed Verdicts

"Possession of any amount of [a controlled substance], coupled with sufficient indicia of intent¹⁰ to distribute,¹¹ will support a conviction for [PWID]."¹² Such indicia of intent may be in the form of direct evidence, such as a confession, or in the form of circumstantial evidence,¹³ such as residual amounts of drugs, drug paraphernalia, weapons, or large amounts of cash on the defendant's person¹⁴ or at the place where the defendant is found to be in possession of the drug.¹⁵ The amount of controlled substance found in the defendant's possession is also circumstantial evidence of the defendant's intent to distribute. "Possession of any amount of controlled substance coupled with sufficient indicia of intent to distribute will support a conviction for possession with intent to distribute."¹⁶ Whether the defendant possessed the controlled substance with the intent to distribute is a question for the jury.¹⁷

When the defendant believes the State has not presented sufficient evidence of intent to distribute, he should move for a directed verdict of acquittal on the PWID charge. The trial court must view the evidence in the light most favorable to the State,¹⁸ and the trial court is concerned with the existence or non-existence of the evidence, not its weight.¹⁹ The defendant is entitled to a directed verdict when the State fails to produce evidence of intent to distribute or when the evidence merely raises a suspicion that the accused intended to distribute.²⁰ "'Suspicion' implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof."²¹ However, if any direct evidence or substantial circumstantial evidence exists that reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced, the trial court should submit the case to the jury.²² Furthermore, "[a] trial judge is not required to find the evidence infers guilt to the exclusion of any other reasonable hypothesis."²³

The following appellate court decisions regarding whether the State has presented sufficient evidence to send the question of intent to the jury demonstrate the issue's complexity. In State v. Cherry,²⁴ the State presented evidence that the defendant was the passenger in a vehicle in a high-crime area. During a pat-down search, the police officer found eight rocks of crack cocaine in the defendant's pants along with $322, mostly in $20 bills. The officer testified that crack cocaine is usually sold in $20 rocks. The officer also testified that he did not find a crack pipe or other drug paraphernalia that would indicate the crack cocaine was for the defendant's personal use. The trial court denied the defendant's motion for a directed verdict, finding sufficient evidence to submit the issue of intent to distribute to the jury, which found him guilty of PWID. The court of appeals and the S.C. Supreme Court affirmed the conviction.²⁵

Likewise, in State v. Robinson,²⁶ the court of appeals held that the State presented sufficient evidence of intent to distribute to withstand a directed verdict where the amount of crack cocaine at issue was .9 grams and where the State presented expert testimony from police officers that it was atypical for a simple user to possess seven rocks of crack cocaine at one time and that a dealer would wrap the crack cocaine as it was in this case.

Similarly, in State v. Elmore,²⁷ the court of appeals held the trial court properly denied the defendant's directed verdict motion. In Elmore, the defendant was the sole passenger in a vehicle stopped for suspicion of driving under the influence. Deputies witnessed several bags "fly out of the vehicle's passenger side window." After searching the defendant and the car, deputies found eight small sandwich bags on the side of the road. Each bag contained marijuana, four of which were virtually the same weight. One deputy testified the street value of each bag ranged between $20 and $30. Deputies also recovered $653 in cash from the defendant. Finally, deputies did not find any evidence of personal use or paraphernalia on defendant's person or in his vehicle. The trial court found sufficient evidence to submit the issue of intent to the jury. The court of appeals held that the number of baggies, the method of individual packaging, the amount of cash found on the defendant, and the complete absence of drug paraphernalia created a jury question.

In comparison, the court of appeals held a trial court erred in denying the defendant's motion for a directed verdict on the issue of intent in State v. James.²⁸ In James, the State presented evidence that the defendant was in a high-narcotics trafficking area when he was initially detained for an open container violation in an area near his home. The arresting officer testified that during a pat-down search he felt something in the defendant's pocket. When the defendant pulled a rag out of his pants pocket, the officer testified he saw two small bags fall to the ground. One bag was empty, but later tested positive for crack cocaine residue. The officer testified that the other bag contained what he believed to be eight to ten rocks of crack cocaine. After a struggle for the second bag, the defendant fled with the second bag. The second bag was never found and, thus, was never analyzed for controlled substances. The officer also testified that the defendant appeared healthy, unlike an addict. The defense presented testimony that the defendant was employed and supported his family. Based on these facts, the court of appeals found that "the entirely circumstantial evidence in this case was not substantial and merely raised a suspicion that James intended to distributed crack cocaine."²⁹

(2) Statutory Amount as Evidence of Intent to Distribute

Although "[c]onviction of [PWID] does not hinge upon the amount [of drugs] involved,"³⁰ the General Assembly has provided that the possession of certain amounts of certain prohibited controlled substances is prima facie evidence of intent to distribute.³¹ Weight includes the weight of the controlled substance in pure form or in any compound or mixture.³²

Table 2-1 Statutory Amounts for PWID

Controlled Substance	Inference Amount	Code Section
Cocaine Base (Crack Cocaine)	1 or more grams	44-53-375(B)
Methamphetamine (Ice, Crank)	1 or more grams	44-53-375(B)
Cocaine	10 grains	44-53-370(d)(4)
Alpha- or Beta-eucaine	100 milligrams	44-53-370(d)(4)
Opium	4 grains	44-53-370(d)(4)
Morphine	4 grains	44-53-370(d)(4)
Heroin	2 grains	44-53-370(d)(4)
Isonipecaine	100 milligrams	44-53-370(d)(4)
Marijuana	28 grams	44-53-370(d)(4)
Hashish	10 grams	44-53-370(d)(4)
LSD or its compounds	50 micrograms	44-53-370(d)(4)
MDMA or Ecstasy	15 tablets, capsules, dosage units, or the equivalent quantity	44-53-370(d)(4)
Gamma Hydroxybutyric Acid (GHB) or a controlled substance analogue of GHB	20 milliliters or milligrams	44-53-370(d)(4)

Table 2-2 Weight Conversions

	Grams	Ounces	Grains
1 Gram =	1	.03527	15.43
1 Ounce =	28	1	437.5
1 Grain =	.0648	.00208	1

Prima facie evidence "establish[es] a fact or sustain[s] a judgment unless contradictory evidence is produced."³³ Therefore, according to the actual language of the Code, if the State establishes that the defendant possessed the statutory amount, the jury must presume the defendant intended to distribute the drug unless the defendant presents evidence refuting his intent to distribute. Thus, on its face the statute creates a burden-shifting or mandatory rebuttable presumption,³⁴ which requires the defendant to present some evidence to rebut the presumption that he intended to distribute the drug.

The Due Process Clauses of the Fifth and Fourteenth Amendments protect defendants in criminal cases from conviction unless the State proves beyond a reasonable doubt "every fact necessary to constitute the crime with...