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State v. James12/20/2004
ected verdict without referencing the Fourteenth Amendment. Even if James's post-verdict motion could be construed to encompass a Fourteenth Amendment challenge regarding the sufficiency of the evidence, such an argument was untimely and did not preserve the argument for our review. SeeHumbert v. State, 345 S.C. 332, 338, 548 S.E.2d 862, 865, 866 (2001) (stating issues not raised and ruled upon in the trial court will not be considered on appeal); State v. Byram, 326 S.C. 107, 113, 485 S.E.2d 360, 363 (1997) (recognizing party may not argue one ground at trial and another on appeal); State v. Kennerly, 331 S.C. 442, 455, 503 S.E.2d 214, 221 (Ct. App. 1998), aff'd, 337 S.C. 617, 524 S.E.2d 837 (1999) (" ssues not raised to the trial court in support of the directed verdict motion are not preserved for appellate review.").
Despite the failure to preserve the Fourteenth Amendment issue, we find James properly raised the sufficiency of the evidence argument to the trial court. Although James did not use the term "substantial circumstantial evidence" in his motion for a directed verdict, he argued there was insufficient evidence to support the elements of the charge of possession with intent to distribute. Moreover, it is apparent from the trial court's ruling that this ground was the basis for the motion. Significantly, the court informed the parties that it would instruct the jury "that they have to find the intent to distribute has been proven by the State beyond a reasonable doubt, and there would be a lesser included offense of possession of crack cocaine." Thus, we find the argument is properly before this court. Cf. State v. Russell, 345 S.C. 128, 132, 546 S.E.2d 202, 204 (Ct. App. 2001) (holding argument that defendant was entitled to a directed verdict on the ground the State failed to establish the corpus deliciti of DUI was preserved even though the defendant did not use the exact words where the ground for the motion was apparent from a review of the record).
We now analyze the merits of James's appeal. Clearly, the evidence was sufficient to prove James possessed crack cocaine. The State contends it proved the intent to distribute element based on Officer Taylor's testimony. James was observed in an area known for "high crime" and "high-narcotics trafficking." He had in his possession one "zip-lock" bag bulging with what appeared to be eight to ten crack cocaine rocks and one empty "zip-lock" bag that tested positive for crack cocaine residue. Officer Taylor testified dealers normally carry a large number of crack cocaine rocks and sell from one "zip-lock" bag before selling from other bags. In contrast, a crack cocaine addict usually carries only one rock of crack. Furthermore, unlike an addict, James appeared healthy. Based on these characteristics, Officer Taylor believed James intended to sell the crack cocaine because he fit the profile of a drug dealer as opposed to a drug user or addict.
Viewing the evidence in the light most favorable to the State, as we are required to do, we find this evidence was insufficient to submit to the jury the possession with intent to distribute charges. In doing so, we must distinguish the instant case from two recent decisions of this court, Cherry and Robinson, which at least facially appear to be dispositive. State v. Cherry, 348 S.C. 281, 559 S.E.2d 297 (Ct. App. 2001) (en banc), aff'd in result, Op. No. 25902 (S.C. Sup. Ct. filed Nov. 29, 2004) (Shearouse Adv. Sh. No. 46 at 24), and State v. Robinson, 344 S.C. 220, 543 S.E.2d 249 (Ct. App. 2001).
In Cherry, the defendant was a passenger in a vehicle stopped for a traffic violation. When an officer searched Cherry for weapons, he discovered a small bag containing approxima
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