State v. Stewart

S
                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            The State, Respondent,

            v.

            Terrance Edward Stewart, Petitioner.

            Appellate Case No. 2019-001584



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                          Appeal from Laurens County
                      Frank R. Addy Jr., Circuit Court Judge


                             Opinion No. 28029
                 Heard November 18, 2020 – Filed May 19, 2021


             AFFIRMED IN PART, REVERSED IN PART, AND
                           REMANDED


            Clarence Rauch Wise, of Greenwood, for Petitioner.

            Attorney General Alan McCrory Wilson and Senior
            Assistant Deputy Attorney General William M. Blitch Jr.,
            both of Columbia; Solicitor David Matthew Stumbo, of
            Greenwood, all for Respondent.


JUSTICE FEW: A jury convicted Terrance Edward Stewart of distribution of
heroin and two crimes based on his knowing possession of illegal drugs: trafficking
in heroin and what we commonly refer to as "simple possession" of oxycodone. We
issued a writ of certiorari to review two aspects of the jury instructions: (1) the trial
court's definition of constructive possession, and (2) the trial court's explanation of
an inference of "knowledge and possession" that the court told the jury it may draw
when illegal drugs are found on the defendant's property. We find the trial court
erred by instructing the jury on the inference of knowledge and possession. We
reverse the trafficking and simple possession convictions and remand those charges
for a new trial. However, because the erroneous jury instruction did not prejudice
Stewart on the distribution charge, we affirm the distribution conviction.

      I.     Facts and Procedural History

A confidential informant with the Laurens County Sheriff's Office purchased five
small bags of heroin from Stewart with five marked $20 bills. The following day,
the Sheriff's Office obtained a search warrant for Stewart's home, where he lived
with his girlfriend and where the heroin sale occurred. The officers who searched
the home found 23.83 grams of heroin in a large bag in a plastic basket on top of the
refrigerator, fifty-six oxycodone tablets in a tinfoil wrapper in the same plastic
basket, a digital scale with a powdery residue on it, and $2,730 in cash. Stewart was
asleep on the couch when the officers entered. When he awoke, he asked for
permission to put on his pants. An officer picked up Stewart's pants and found an
additional $1,173—including the five marked $20 bills—in one of the pockets.

During trial, the trial court provided the parties a copy of its proposed jury
instructions. Stewart objected to the trial court's definition of constructive
possession and to the trial court's explanation of the inference of knowledge and
possession. The trial court overruled the objections and gave the instructions as
proposed. The jury convicted Stewart of trafficking in heroin, distribution of heroin,
and simple possession of oxycodone. The trial court sentenced Stewart to concurrent
prison terms of twenty-five years for trafficking, ten years for distribution, and five
years for possession. The court of appeals affirmed in an unpublished opinion. State
v. Stewart, Op. No. 2019-UP-209 (S.C. Ct. App. filed June 5, 2019). We granted
Stewart's petition for a writ of certiorari.

      II.    The Possession Crimes

Trafficking and simple possession are statutory crimes. Simple possession was
defined in the original Controlled Substances Act of 1971. Act No. 445, 1971 S.C.
Acts 800, 822. The definition is now found in subsection 44-53-370(c) of the South
Carolina Code (2018), which provides, "It shall be unlawful for any person
knowingly or intentionally to possess a controlled substance . . . ." Trafficking was
added to the Act in 1981. Act No. 33, 1981 S.C. Acts 42, 44-46. It is defined in
subsection 44-53-370(e) of the South Carolina Code (2018), which provides in part,1
"Any person . . . who is knowingly in actual or constructive possession . . . of . . . (3)
four grams or more of . . . heroin . . . is guilty of . . . trafficking . . . ."

Beginning in 1974, this Court decided a series of four cases—Ellis, Brown, Lane,
and Hudson—in which we discussed what facts the State must prove to establish a
violation of the simple possession statute and related crimes based on possession.
See State v. Ellis, 

263 S.C. 12

, 22, 

207 S.E.2d 408

, 413 (1974) ("An
accused[] . . . has possession of . . . contraband . . . within the meaning of the law
when he has both the power and intent to control its disposition or use."). These
opinions became the foundation for our law defining constructive possession in drug
cases. They later became applicable to trafficking when the charge is based on
possession. See State v. Bultron, 

318 S.C. 323

, 330 n.3, 333-34, 

457 S.E.2d 616

,
620 n.3, 622 (Ct. App. 1995) (discussing what the State must prove on a trafficking
charge based on possession, citing Ellis).

From those four decisions, it is now clear that to prove trafficking (when based on
possession) or simple possession, the State must prove two elements. First—as we
originally stated—the State must prove the defendant had either actual physical
custody of the drugs, or the right or power to exercise control over the drugs. See
State v. Hudson, 

277 S.C. 200

, 202, 

284 S.E.2d 773

, 774-75 (1981) ("Actual
possession" requires "actual physical custody" of the drugs and "constructive
possession" requires "the right to exercise dominion and control" of the drugs); 

Ellis,
263 S.C. at 22

, 207 S.E.2d at 413 (similar, but stating the first element as "the
power . . . to control its disposition or use"). Second—as we originally stated—the
State must prove the defendant had "knowledge of [the] presence" of the drugs. State
v. Brown, 

267 S.C. 311

, 315, 

227 S.E.2d 674

, 676 (1976); see also 

Hudson, 277 S.C.
at 202

, 284 S.E.2d at 774 (requiring proof of knowledge). In State v. Lane, 

271 S.C.
68

, 

245 S.E.2d 114

(1978), discussing Ellis and Brown, we explained "knowledge"
means "the accused must have an 'intent to control [the] disposition or use'" of the

drugs. 271 S.C. at 73

, 245 S.E.2d at 116. Under Lane, the second element is now
stated as the defendant must have knowledge of the drugs and the intent to control
their disposition or use.


1
  Subsection 44-53-370(e) provides other ways the State may prove trafficking—
inapplicable here—that do not require the State to prove knowing possession. In all
trafficking cases, the State must prove the requisite quantity of the drugs.

Id.
III.

  Constructive Possession Jury Charge

In these four decisions—Ellis, Brown, Lane, and Hudson—the Court addressed only
the sufficiency of the evidence necessary for the State to prove a violation of
subsection 44-53-370(c)2 and to survive a motion for directed verdict.3 While these
decisions accurately defined constructive possession in the context of the sufficiency
of the evidence presented in those cases, none of them dealt directly with fashioning
a jury instruction defining a violation of the statute. Understandably, however, trial
courts and commentators began drafting jury instructions under the guidance of
these cases.4 Later, as we will discuss in Section IV, this Court relied on these cases
to direct circuit judges on how to fashion jury instructions regarding simple
possession and related crimes based on possession. State v. Adams, 

291 S.C. 132

,
135, 

352 S.E.2d 483

, 486 (1987).

In this case, the trial court began its jury instruction correctly, informing the jury the
State must prove both required elements to convict Stewart of trafficking or simple
possession. The trial court stated, "To prove possession, . . . the State must prove

2
 In Ellis and Brown, we addressed the same provision but from the previous Code,
subsection 32-1510.49(c) of the 1962 South Carolina Code (Supp. 1975). 

Brown,
267 S.C. at 314

, 227 S.E.2d at 676; 

Ellis, 263 S.C. at 15

, 207 S.E.2d at 409-10.
3
  See 

Hudson, 277 S.C. at 201

, 284 S.E.2d at 774 ("Appellant . . . asserts the trial
judge erred in failing to direct a verdict of acquittal because the evidence was
insufficient to sustain his conviction for possession . . . ."); 

Lane, 271 S.C. at 72

, 245
S.E.2d at 116 (appellant "argues . . . there is no evidence that he had knowledge of
the presence of the marijuana at his shop"); 

Brown, 267 S.C. at 315

, 227 S.E.2d at
676 ("Brown contends . . . the State failed to introduce evidence from which a jury
could reasonably infer that he had possession of the marijuana"); 

Ellis, 263 S.C. at
19

, 207 S.E.2d at 412 (stating the "question presented for decision is whether the
trial judge erred in refusing to grant the motion of the appellants for a directed verdict
on the ground that the evidence was insufficient to sustain a verdict of guilty of
possession of heroin").
4
  See, e.g., Tom J. Ervin, ERVIN'S SOUTH CAROLINA REQUESTS TO CHARGE –
CRIMINAL 161-63 (1st ed. 1994) (defining possession in reliance on Hudson, Brown,
and others); F. Patrick Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH
CAROLINA: DEFENDANTS' REQUESTED INSTRUCTIONS 194-97 (1st ed. 1994) (defining
possession in reliance on Hudson, Ellis, and others).
beyond a reasonable doubt the defendant had knowledge of, power over, and the
intent to control the disposition or use of the drugs involved." As the court
continued, however, it informed the jury, "Constructive possession means that the
defendant had dominion and control or the right to exercise dominion and control
over either the drugs itself or the property upon which the drugs were found."

This is the statement to which Stewart objected. If we considered the statement only
in isolation as a complete definition of constructive possession, the statement would
be problematic. The primary problem would be that the statement ignores the second
element we described above. We are particularly concerned with the language "the
property upon which the drugs were found." Under the four cases, if the State
presents evidence the defendant had control over the property on which the drugs
were located, then the trial court should deny a directed verdict motion. But, the
mere existence of evidence the defendant had control over the property does not
equate to a finding of constructive possession. It remains the burden of the State to
convince the jury the defendant had the requisite knowledge and intent.

The legal principle of possession requires trial courts to instruct juries on both
elements from Ellis, Brown, Lane, and Hudson when defining possession in cases in
which the State is required to prove a violation of the statutes on trafficking (when
based on possession), simple possession, and related crimes based on possession.
First, the State must prove the defendant had the right and power to control the
disposition or use of the drugs. For actual possession cases, the State may meet this
burden by proving the defendant had actual physical custody of the drugs. For
constructive possession cases, the State must prove by other evidence the defendant
had the right and power to exercise control over the drugs. Second, the State must
prove the defendant had knowledge of the drugs and the intent to control the
disposition or use of the drugs. In slightly different terms, these are the same two
elements we set forth in Ellis,5 Brown, Lane, and Hudson. See Lane, 271 S.C. at 

73,
245 S.E.2d at 116

(holding "the accused has such possession as is necessary for

5
  In Adams, we stated "language found in State v. Ellis . . . is no longer 

valid.” 291
S.C. at 135

, 352 S.E.2d at 486. We were not referring to the Ellis definition of
possession, but to this statement, "Ordinarily, when articles are in a dwelling house
they must be deemed to be in the constructive possession of the person controlling
the house in the absence of evidence to the contrary." 

Ellis, 263 S.C. at 22

, 207
S.E.2d at 413. This statement is incorrect because it suggests the defendant bears
the burden of proof. Otherwise, Ellis contains a correct explanation of the law of
possession.
conviction 'when he has both the power (actual or constructive control) and intent to
control its disposition or use'" (quoting 

Ellis, 263 S.C. at 22

, 207 S.E.2d at 413)). In
this case, the trial court instructed the jury on both elements. In addition,
immediately after the potentially problematic statement, the trial court instructed the
jury "mere presence at the scene where the drugs were found is not enough to prove
possession." This likely had the effect of focusing the jury's attention on the second
element.

If we consider the statement to which Stewart now objects only in isolation, it failed
to convey both elements to the jury. However, we do not consider jury instructions
in isolation, but as a whole. State v. Herndon, 

430 S.C. 367

, 371, 

845 S.E.2d 499

,
502 (2020). When considered as a whole, the trial court's definition of constructive
possession adequately conveyed both elements to the jury. Therefore, we find no
error in the trial court's definition of constructive possession.

      IV.    The Inference of Knowledge and Possession

Stewart also contends the trial court erred when it instructed the jury, "The
defendant's knowledge and possession may be inferred when a substance is found
on the property under the defendant's control." We agree.

In Ellis, the Court held the State presented evidence to support an inference of
knowledge and possession sufficient to survive a directed verdict motion. 263 S.C.
at 21-

22, 207 S.E.2d at 413

. Heroin belonging to the defendant's foster son was
found in a guest bedroom in her home, the guest room was adjacent to her own
bedroom, and she entered the guest room at least twice a week. 263 S.C. at 

22, 207
S.E.2d at 413

. In support of our holding, we stated "Where such materials are found
on the premises under the control of an 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 on a charge of unlawful possession." 263 S.C. at 

22, 207 S.E.2d at
413

(citing State v. Harvey, 

187 S.E.2d 706

, 714 (N.C. 1972)). In Lane, we found it
"inferable that the appellant had the requisite intent," and thus, we affirmed the
submission of the case to the 

jury. 271 S.C. at 73

, 245 S.E.2d at 117. Similarly, in
Hudson and Brown, we considered only the sufficiency of the State's evidence to
survive a directed verdict motion. 

Hudson, 277 S.C. at 203

, 284 S.E.2d at 775
(holding there was sufficient evidence of the defendant's knowledge and possession
of the heroin to take the case to the jury); 

Brown, 267 S.C. at 316

, 227 S.E.2d at 677
(holding there was not sufficient evidence of the defendant's dominion and control
over the marijuana). We discussed in each case the inference of knowledge and
possession,6 but we did not suggest in any of the cases the trial court should explain
the inference to the jury.

In Adams, this Court misinterpreted these decisions and directed trial courts to
explain the inference of knowledge and possession to a jury. 291 S.C. at 

135, 352
S.E.2d at 486

. The challenged charge in this case was taken almost verbatim from
Adams, in which we stated, "The proper charge on constructive possession is to
instruct the jury that the defendant's knowledge and possession may be inferred if
the substance was found on premises under his control." Id. (citing Hudson, 

277
S.C. 200

, 

284 S.E.2d 773

; Brown, 

267 S.C. 311

, 

227 S.E.2d 674

). Our reliance on
Hudson and Brown was misplaced because neither case approves of the trial court
explaining the inference of knowledge and possession to the jury. The inference is
a valid one for the jury to draw, and the trial attorneys may argue to the jury whether
the inference should be drawn. State v. Burdette, 

427 S.C. 490

, 503, 

832 S.E.2d 575

,
582 (2019).7 The jury instruction explaining the inference, however, is improper.
We overrule Adams on that point. The jury charge instructing a jury it may infer
knowledge or possession when a substance is found on property under the
defendant's control should no longer be given.

      V.     Prejudice

We decided several cases recently addressing other jury charges "instructing juries
on how to interpret and use evidence." See Pantovich v. State, 

427 S.C. 555

, 562,

832 S.E.2d 596

, 600 (2019) (holding "the 'good character alone' charge . . . is
improper" and listing cases). In one of those cases, Burdette, the trial court informed
the jury it may infer the existence of malice from the defendant's use of a deadly

weapon. 427 S.C. at 494

, 832 S.E.2d at 577. We held the charge is never proper, in
part because "the trial court has directly commented upon facts in evidence, elevated
those facts, and emphasized them to the 

jury.” 427 S.C. at 502-03

, 832 S.E.2d at
582. In another case, Cheeks, we considered a "strong evidence" inference charge

6
  In Brown, we relied on the absence of the inference of knowledge and possession,
finding "the State failed to introduce evidence from which a jury could reasonably
infer that he had possession of the marijuana." 267 S.C. at 

315, 227 S.E.2d at 676

.
7
  In Burdette, we stated "some matters appropriate for jury argument are not proper
for charging. 'Do jurors need the court's permission to infer something? The answer
is, of course 

not.'” 427 S.C. at 503

, 832 S.E.2d at 583 (quoting State v. Belcher, 

385
S.C. 597

, 612 n.9, 

685 S.E.2d 802

, 810 n.9 (2009)).
and stated it "unduly emphasizes that evidence, and deprives the jury of its
prerogative both to draw inferences and to weigh 

evidence.” 401 S.C. at 328-29

,
737 S.E.2d at 484. The inference charge in this case had the same prejudicial effects
we described in Burdette and Cheeks.8

The trial court's definition of constructive possession—including the requirement
the State prove knowledge and intent—was followed almost immediately with the
opposite statement, permitting the jury to infer the defendant's knowledge from the
simple fact the drugs were on his property. To the extent the trial court earlier
explained the knowledge and intent requirement, the inference of knowledge
instruction negated that explanation. The improper explanation of the inference of
knowledge and possession permitted the jury to find Stewart guilty of simple
possession and trafficking without the State proving knowledge and intent, a
scenario not permitted under the legal principle of possession as we explained it in
Ellis, Brown, Lane, and Hudson.

We cannot say the error did not prejudice Stewart as to the trafficking and simple
possession charges. See 

Burdette, 427 S.C. at 496

, 832 S.E.2d at 578 ("[O]ur inquiry
is not what the verdict would have been had the jury been given the correct charge,
but whether the erroneous charge contributed to the verdict rendered." (quoting State
v. Middleton, 

407 S.C. 312

, 317, 

755 S.E.2d 432

, 435 (2014))). As to the distribution
of heroin charge, however, we find the erroneous jury instructions could not have
contributed to the verdict. Proof of distribution does not require separate proof of
possession. See S.C. Code Ann. § 44-53-370(a) (2018) (providing "it shall be
unlawful for any person: . . . (1) to . . . distribute . . . a controlled substance").

      VI.    Conclusion

We reverse Stewart's convictions for trafficking and simple possession of heroin,
and remand those charges to the court of general sessions for a new trial. We affirm
Stewart's conviction for distribution of heroin.


8
  In Cheeks, despite finding error, we did not reverse because "the evidence was that
[the defendant] was actively cooking crack cocaine when the warrant was served,
and that he possessed the 650 grams of crack found on the kitchen 

counter.” 401
S.C. at 329

, 737 S.E.2d at 484. As quoted in the text of this opinion, however, the
Cheeks Court explained the tendency of the erroneous inference charge to prejudice
the defendant.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.

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