State v. Barno

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Reginald Barno, Appellant.

Appeal From Sumter County

R. Ferrell Cothran, Jr., Circuit Court
Judge

Unpublished Opinion No. 2010-UP-500   

Submitted October 1, 2010 – Filed November
10, 2010

AFFIRMED

Appellate Defender Robert M. Pachak, of
Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley
W. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia; and
Solicitor C. Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:  Reginald Barno was convicted of possession of crack cocaine and possession of
marijuana.  Barno appeals, asserting the trial judge erred in giving a
jury charge on inference that was burden shifting.  We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

On September 30, 2008,
investigators with the Sumter County Sheriff's Office were observing the
residence of Wayne Barkley, who had previously been arrested on a drug charge,
when appellant pulled up in a black Nissan. Barkley approached the vehicle, and
it appeared something was exchanged between the men.    When the officers ran
the tag on the Nissan, it came back as belonging to a Volvo.  After
Barno pulled away, the officers followed behind and initiated a traffic stop. 
When asked for his driver's license, appellant indicated he did not have one.  Barno
was then detained and read his Miranda[2] rights.  The officers then noticed a white rock substance in plain view in the
front seat of the car that tested positive for crack cocaine.  When one of the
officers asked whose crack it was, appellant stated it was his.  Later, while
being booked into the detention center, a small baggy of marijuana was found in
Barno's pants pocket.

At the close of the evidence,
the trial judge indicated his intent to charge that possession may be inferred
when a substance is found on property under the control of the defendant, and
that such inference is simply an evidentiary fact to be considered by the
jury.  Barno objected to the proposed charge, arguing an instruction including
the word "inferred or inference" would be burden shifting, would
create a comment on the facts, and would deny him due process.  Specifically, trial
counsel argued as follows:

- - if it's the court's intention to use the
word inferred or inference at any place in your charge, I'm going to
respectfully object and ask that you do not do that feeling that any time
the Court gives the jury an instruction as to inference, that that we would
argue is respectfully  - - I know it's often done generally done in some cases,
but we would respectfully urge the Court to find that that is burden
shifting, that that is creating a comment on the facts by the bench which
is not permitted under the rules, and that ultimately it's a denial of due
process and that it's violative of the constitutional right to a fundamentally
fair trial.

In that, Your Honor, if they're told that they
may infer something by anything, then why is that not a comment on the facts? 
I mean, the general nature of the violation of the contraband statute, they
have got that.

Why is it we're telling them that they can
find something if they find something else or that - - that we feel - - any
time the word inference is used but may be inferred, that phrase, we feel
that that's burden shifting and improper comment on the facts and denial
of due process. 

And we urge the Court not to do that and let
you know that it would be our intention to respectfully except should the Court
choose to do that.

(emphasis added).  The trial judge then replied:

And it's under State v. Adams, 291 SC
130, it is exactly where that language comes from.  It is in every charge book
in every Judge in the State of South Carolina dealing with possession of crack
cocaine as well as possession of marijuana.

But it - - it does not comment on the facts in
my opinion.  It simply it is the law in this State.  And it simply says that a
knowledge - - and possession may be inferred when the substance is found on the
property under the defendant's control.  However, this inference is simply an
evidentiary fact to be taken by you.

I think that is the law.  And I'm going to
charge it formally, but I note your objection.

The trial judge then charged as he indicated, stating as
follows:

The
defendant's knowledge and possession may be inferred when . . . a substance is
found on the property under the defendant's control.

However,
this inference is simply an evidentiary fact to be taken into consideration by
you along with the other evidence in this case and to give the weight you
decide it should have.

Trail counsel excepted to this instruction as
follows:

The third exception, Your Honor, would be inference.  You did use the word.  I think it was in the context of something to be
inferred from control of the premises on which the drugs were found.  So I
respectfully except to that as being burden shifting for those reasons I told
you before the break.

(emphasis added).  The trial
judge declined to recharge on the matter, determining the inference instruction
was the law of this state.  After deliberations began, the jury sent a note
asking whether the defendant had "to know that the drugs were in the car
to be guilty" and what the court meant "by possession."  The
trial judge recharged the jury that the State was required to prove beyond a
reasonable doubt that defendant knowingly and intelligently possessed the
drugs, that to prove possession, the State was required to prove beyond a
reasonable doubt that the defendant had the power and intent to control the
disposition of the drugs, and that "defendant's knowledge and possession
may be inferred when a substance is found on the property under the defendant's
control" but this inference was simply an evidentiary fact to be
considered along with the other evidence and "to be given whatever weight
[the jury] decide[d] it should have."

LAW/ANALYSIS

On appeal, Barno contends
that the law provides, in order for an inference to be considered permissive,
the jury must be instructed they are free to accept or reject the inference.  Barno
asserts, because the trial court failed to specifically instruct the jury they
could reject the inference, the charge was burden shifting, in violation of his
due process rights.

We find the issue as argued
on appeal is not preserved for our review.  Although defense counsel objected
to the proposed charge and took exception to the instruction given by the
court, the basis for this objection was not the trial court's failure to
specifically include language that the jury was free to accept or reject this
permissive inference of knowledge and possession.  Rather, counsel's sole
argument was that any instruction including the word "inferred" or "inference"
would be burden shifting, would be a comment on the facts, and would deny him
due process.  Counsel never requested the trial judge include language that the
jury was free to accept or reject the permissive inference.  Further, appellant
does not challenge on appeal the language of the charge as being improper
because of the inclusion of the word "inferred" or the word "inference"
as he argued at trial.On appeal, Barno
appears to agree that a charge including the word "inference" may be
proper.  He never argued at trial, as he does on appeal, that the charge was
burden shifting because it failed to instruct the jury that they could reject
the inference.  Further, Barno never asked the trial judge to include an
instruction that the jury could accept or reject the inference.  In essence,
Barno argued to the trial judge that the charge was improper based upon the use
of the word "inference," thus contending it was an incorrect
statement of the law.  However, the law as charged by the trial judge, in and
of itself, was not an incorrect statement of the law and Barno does not, on
appeal, challenge the law as charged by the trial judge as an incorrect
statement.  See  State v. Adams, 291 S.C. 132, 135, 352 S.E.2d
483, 486 (1987) (stating the proper charge on constructive possession is to
instruct the jury that the defendant's knowledge and possession may be inferred
if the substance was found on premises under his control); see also State v. Tindall, 379 S.C. 304, 313-14, 665 S.E.2d 188, 193-94 (Ct. App.
2008), rev'd on other grounds, 388 S.C. 518, 698 S.E.2d 203 (2010)
(quoting with approval a charge substantially identical to the case at hand
which stated, "The defendants knowledge and possession may be inferred
when a substance is found on the property under the defendants control. 
However, the inference is simply an evidentiary fact to be taken into
consideration by you along with other evidence in the case and to be given the
weight you decide it should have," finding the language adequately charged
the law as determined from the evidence and provided the proper law for the
jury to consider).  Rather, Barno essentially asserts that the charge was
incomplete in that it did not include an instruction that the jury could accept
or reject the inference.  Barno never requested the trial judge include such an
instruction with his charge.  Because he is attempting to raise an argument on
appeal not brought to the trial court's attention, and additionally failed to
ask the court to include the portion of the charge he is now maintaining should
have been included, the issue argued on appeal is not properly preserved.  See Madison
v. Babcock Ctr., Inc., 371 S.C. 123, 144,
638 S.E.2d 650, 661 (2006) (holding arguments not presented to nor ruled upon
by trial court are not preserved for appellate review); State v. Freiburger, 366 S.C. 125,
134, 620 S.E.2d 737, 741 (2005) (finding argument advanced on appeal was not
raised and ruled on below and therefore was not preserved for review); State v. Dunbar,
356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) (noting "[a] party need not
use the exact name of a legal doctrine in order to preserve it, but it must be
clear that the argument has been presented on that ground")
(emphasis added); State v. Haselden, 353 S.C. 190, 196, 577 S.E.2d 445,
448 (2003) (holding a party may not argue one ground at trial and another on
appeal); State v. McKnight, 352 S.C. 635, 646-47, 576 S.E.2d 168, 174
(2003) (issue must be raised to and ruled upon by trial court to be preserved
for review); Morris v. Anderson County, 349 S.C. 607, 611 n.4,  564
S.E.2d 649, 651 n.4 (2002) (noting "[i]t is well-settled that appellants
cannot raise new arguments or change their grounds between trial and appeal."); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716,
724 (2000) (stating imposing preservation requirements on the appellant is
meant to enable the lower court to rule properly after it has considered all
relevant facts, law, and arguments, and noting that the "purpose of an
appeal is to determine whether the trial judge erroneously acted or failed to
act and when appellant's contentions are not presented or passed on by the
trial judge, such contentions will not be considered on appeal."); State
v. Whitten, 375 S.C. 43, 47, 649 S.E.2d 505, 507 (Ct. App. 2007) (finding
an appellate court is limited by appellate rules that allow the court to
consider only the precise question that was before the trial judge and ruled
upon by him or her); Queen's Grant II Horizontal Prop.  Regime v. Greenwood
Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct. App. 2006) (noting "[i]ssue
preservation rules are designed to give the trial court a fair opportunity to
rule on the issues, and thus provide us with a platform for meaningful
appellate review," and until the trial court considers the matter and
makes a ruling, an appellate court is unable to find error); see also State v. Stanko, 376 S.C. 571, 578, 658 S.E.2d 94, 97 (2008) (holding,
absent request by counsel to charge a matter at trial, the issue of whether the
matter should have been charged is not preserved for review).  Accordingly,
Barno's convictions are

AFFIRMED.

FEW, C.J., and
HUFF and GEATHERS, JJ., concur.

[1] We decide this case without oral argument
pursuant to Rule 215, SCACR.

[2] Miranda v. Arizona, 384 U.S. 436 (1966).