Important Case on Jury Instructions for Constructive Possession of Illicit Drugs, State v. Terrance Edward Stewart, S.C. Supreme Court, filed May 19, 2021.

This is a great case that clarifies precisely what the State is obligated to prove in these drug possession cases (and not what the defendant has to prove himself so as to be found not guilty). Per a line of South Carolina cases that the Court discusses,[1] to prove trafficking (when based on weight) or simple possession, the State has to prove two things—that the defendant had either actual possession of the drugs or the right or power to exercise control over the drugs.  Then, the State also has to prove that the defendant had knowledge of the presence of the drugs.  Knowledge means that the accused must have an ‘intent to control [the] disposition or use” of the drugs.  In other words, drugs could be in your house, but you’re not guilty of possession or trafficking based on weight unless you *knew* they were in your house. 

The jury instruction to which trial counsel objected to in this case was this: “To prove possession, …the State must prove beyond a reasonable doubt the defendant had knowledge of, power over, and the intent to control the disposition or use of the drugs involved.”  (so far so good).  The court continued, “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” (emphasis added.  Also, the problematic part).  The problem with this instruction is it would have diluted the State’s burden to show that you actually had to know the drugs were in your house.  Under this inaccurate jury instruction, you could be found guilty if drugs were in your house, even if you didn’t know it, simply by virtue of your having control of the property. 

Trial counsel also objected when the court instructed the jury that the defendant’s knowledge and possession may be inferred when a substance is found on the property under the defendant’s control.  Again, the Court found this problematic.  It’s true that finding drugs on say, your property, means that the court isn’t going to direct a verdict of not guilty at the close of the state’s case, but it’s not enough to sustain a conviction.  Again, the State has to prove more than just that it’s on your property; it also has to show you know it’s on your property.  It appears this whole mess came about because state judges were conflating the standards for a directed verdict (inference that you know about drugs on your property is acceptable) with the instructions provided to a jury to prove guilt beyond a reasonable doubt (inference that you know about drugs on your property is not sufficient to relieve the state of its obligation to prove you knew the drugs were on your property).   Great lawyering by Rauch Wise!

[1]                State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974), State v. Brown, 267 S.C. 311, 227 S.E.2d 674 (1976); State v. Lane, 271 S.C. 68, 245 S.E.2d 114 (1978), and State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981).