State v. Cherry2/12/2001
Furthermore, twenty dollar bills are not unusual denominations to carry. They are the predominant bills used at banks and automatic teller machines for cash withdrawals of hundred dollar multiples. To be sure, the money Cherry possessed is consistent with a guilty intent to distribute. But it is no less consistent with possession for personal use. To base a conclusion on it, then, is to rest on pure speculation.
None of these circumstances provides a basis for reasonably inferring an intent to distribute. Furthermore, they are not substantial in combination. As Judge Shuler points out in his concurring and dissenting opinion:
he use of circumstantial evidence calls on the jury to employ analytical tools in a complex reasoning process not otherwise needed when reviewing direct evidence alone. In so doing, it invites the danger of 'logical gaps' legitimately associated with circumstantial evidence - that the jury may surmise guilt from 'subjective inferential links based on probabilities' and thereby elevate coincidence or suspicion into permissible inference. (citing People v. Cleague, 239 N.E.2d 617, 619 (N.Y. 1968)).
I conclude the evidence required the jury to employ this impermissible method of arriving at its determination of guilt. Each of the predicate facts is completely consistent with simple possession of crack cocaine, and they remain consistent with simple possession in combination. When added together, it might be said that they more completely tend to prove possession of crack cocaine, but they do not provide a reasonable basis for concluding that the crack cocaine was possessed with the intent to distribute it.
Where the amount of drugs is less than the threshold amount giving rise to the permissible statutory inference of intent to distribute, our courts have required more than mere possession and the general circumstances found here as a basis for concluding guilt. "Possession of any amount of controlled substance when coupled with sufficient indica of intent to distribute will support a conviction for possession with intent to distribute." State v. Goldsmith, 301 S.C. 463, 466, 392 S.E.2d 787, 788 (1990); see Matthews v. State, 300 S.C. 238, 239, 387 S.E.2d 258, 259 (1990); State v. Adams, 291 S.C. 132, 134, 352 S.E.2d 483, 485 (1987). However, I find no cases in South Carolina which have upheld a conviction for possession with intent to distribute without some specific indicia of the required intent. See State v. Brown, 317 S.C. 55, 57, 451 S.E.2d 888, 890 (1994) ($2,320 in cash); Fernandez v. State, 306 S.C. 264, 266, 411 S.E.2d 426, 427 (1991) ($13,000 in cash); Goldsmith, 301 S.C. at 465-66, 392 S.E.2d at 788 (search revealing drugs, portable scales for weighing grams, five grams of cocaine in foil-wrapped packages in freezer); Adams, 291 S.C. at 133, 352 S.E.2d at 485 (agents seized large inventory of drug paraphernalia, residue, thirty guns, and $134,000 in cash); State v. Simpson, 275 S.C. 426, 427-28, 272 S.E.2d 431, 431 (1980) (pilot's possession of aircraft containing drug residue and maps, coupled with police officer's testimony opining that the residue indicated large shipment of marijuana had been transported in airplane); State v. Durham, 266 S.C. 263, 267-68, 222 S.E.2d 768, 769-70 (1976) (police seized fifty pounds of marijuana and delicate scales used to weigh small amounts of chemicals and police testified at trial as to significance of the scales); State v. Muhammed, 338 S.C. 22, 25, 524 S.E.2d 637, 638-39 (Ct. App. 1999) (police found $1085 in cash in a large roll, forty-two bullets, three pagers, a cell phone, and a razor blade with traces of cocaine on it in a car and two pistols and 19.7 grams of crack cocaine in the house); State
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