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State v. James12/20/2004
or each of the drug charges. The sentences were to be served concurrently. James appeals.
DISCUSSION
James argues the trial court erred in denying his motion for a directed verdict as to the drug charges. He contends the State failed to produce substantial circumstantial evidence that he possessed crack cocaine with intent to distribute. In conjunction with this contention, James asserts the court's failure to direct a verdict violated his Fourteenth Amendment right to due process because the evidence was not sufficient to convince a rational trier of fact that he was guilty beyond a reasonable doubt.
At trial, James moved for a directed verdict after the State rested and at the close of the evidence. In each of these motions, James argued there was insufficient evidence to support the elements of the possession with intent to distribute charges. The court denied these motions. Although the court acknowledged there was no evidence as to the weight of the crack cocaine, it found the State had presented circumstantial evidence to support the charges.
In ruling on a motion for directed verdict in a criminal case, a trial court must view the evidence in the light most favorable to the State. State v. Buckmon, 347 S.C. 316, 321, 555 S.E.2d 402, 404 (2001). The trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Gaster, 349 S.C. 545, 555, 564 S.E.2d 87, 92 (2002). "A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged." State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001). Furthermore, the court should not refuse to grant the directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000).
When reviewing a denial of a directed verdict, this court must view the evidence and all reasonable inferences in the light most favorable to the State. State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999). If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury. State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000).
Section 44-53-375(B) of the South Carolina Code "creates a permissive inference that possession of more than one gram of crack cocaine constitutes possession with intent to distribute. However, a conviction of possession with intent to distribute does not hinge upon the amount involved. Furthermore, the statute does not mandate a reverse inference or presumption for amounts less than one gram." State v. Robinson, 344 S.C. 220, 223, 543 S.E.2d 249, 250 (Ct. App. 2001) (citations omitted); S.C. Code Ann. § 44-53-375(B) (2002). 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. Matthews v. State, 300 S.C. 238, 239, 387 S.E.2d 258, 259 (1990).
As a threshold matter, the State asserts James did not properly preserve this issue for appellate review. Specifically, the State contends James did not explicitly argue the State failed to produce "substantial circumstantial evidence that he possessed cocaine with intent to distribute."
We agree with the State's assertion with respect to James's Fourteenth Amendment argument. At trial, James moved to exclude the crack cocaine evidence on the ground the weapons pat down and subsequent seizure of the drugs violated his Fourteenth Amendment right to due process. In a separate and subsequent argument, James moved for a dir
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