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State v. James12/20/2004
tely eight rocks of crack cocaine in his watch pocket. He also seized $322 in cash from Cherry. Cherry was convicted of possession with intent to distribute crack cocaine. As one of the issues raised on appeal, Cherry challenged the trial court's failure to grant his motion for a directed verdict. Because there was no evidence that he intended to distribute the crack cocaine, Cherry asserted the charge should not have been submitted to the jury. This court, in a divided en banc decision, affirmed Cherry's conviction. Viewing the evidence in the light most favorable to the State without weighing it, the majority opinion found the following evidence justified the trial court's decision to deny Cherry's motion for a directed verdict: (1) Cherry was arrested in high crime area known for violence and drug activity; (2) Cherry had in his possession a small bag containing eight rocks of crack cocaine; (3) he had no drug paraphernalia with him indicating the crack cocaine was for his personal consumption; (4) he had $322 in cash, in mostly twenty dollar bills; and (5) a single rock of crack cocaine typically sold for twenty dollars. Cherry, 348 S.C. at 285, 559 S.E.2d at 299.
In Robinson, law enforcement observed Robinson enter a business that was the focal point of a six-month drug investigation. When Robinson left the establishment, an officer approached him. Robinson charged the officer and threw his hand up in the air. The officer saw a black plastic bag fly from Robinson's hand. The bag contained seven rocks of crack cocaine with an assigned weight of 0.9 grams. As a result, Robinson was charged with possession with intent to distribute crack cocaine and a related proximity charge. Because the amount of crack cocaine was less than the statutory amount triggering the permissible inference of intent to distribute, the State relied solely on expert testimony from officers regarding the distinction between a drug dealer and a user of crack cocaine. The officers testified that a user would normally not have more than one or two rocks in his possession. Additionally, one officer testified that he would expect that a dealer would have crack cocaine packaged as it was by Robinson. Based on this testimony, we found there was sufficient evidence of Robinson's intent to distribute to withstand a motion for a directed verdict. Robinson, 344 S.C. at 224, 543 S.E.2d at 250.
Analyzing the facts of this case, we conclude the indicia of intent relied upon by the State is considerably weaker than that presented in either Cherry or Robinson and, thus, insufficient to support the charged offenses. Although James was observed in a "high-narcotics trafficking" area, he was initially detained for an open container violation in an area near his home. In contrast to Robinson, there was no testimony that James was engaged in a drug transaction or that he was under surveillance for dealing drugs. There was, however, testimony that James was employed and supported his family. Furthermore, unlike the defendant in Cherry, James did not have large amounts of cash, but instead, only had $37 on his person. As to the amount of crack cocaine possessed by James, the evidence was speculative. The "bulging" bag of crack cocaine, which the State primarily relied on to establish the intent element, was never recovered for evidentiary testing as in Robinson and Cherry. Officer Taylor also was not entirely clear as to how many rocks, of what he believed to be crack cocaine, were contained in the bag. He admitted that he only saw the bag briefly on the ground before the struggle ensued with James.
Finally, James's healthy appearance was not conclusive as to whether he was a drug dealer. Instead, it could also have raised the infere
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