State v. Jenkins

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.

Frederick J. Jenkins, Appellant.

Appeal From Spartanburg County

E. C. Burnett, III, Circuit Court Judge

Unpublished Opinion No. 2011-UP-183

Submitted April 1, 2011 – Filed April 19,
2011   

AFFIRMED

Appellate Defender Elizabeth A.
Franklin-Best, of Columbia, for Appellant.

Attorney General Alan Wilson, 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
Barry Barnette, of Spartanburg, for Respondent.

PER CURIAM: Frederick
J. Jenkins appeals his conviction for possession with intent to distribute
crack cocaine.  He argues the trial court erred in (1) denying his motions for
a directed verdict on the offense; (2) permitting the use of a statutory
inference of intent to distribute based upon the amount of crack seized; and (3)
commenting on the facts of the case while instructing the jury.  We affirm.[1]

Jenkins argues the trial
court erred in denying his motion for a directed verdict because the State
failed to introduce sufficient evidence he had constructive possession of or
intended to distribute crack cocaine found in a car he was driving.  We disagree.

"When reviewing a denial
of a directed verdict, this [c]ourt views the evidence and all reasonable
inferences in the light most favorable to the nonmoving party."  State
v. Brannon, 388 S.C. 498, 501, 697 S.E.2d 593, 595 (2010) (citation
omitted).  "To survive a motion for directed verdict, the [S]tate must
present any direct evidence or substantial circumstantial evidence
. . . from which the defendant's guilt can be fairly and logically
deduced."  State v. Muhammed, 338 S.C. 22, 26, 524 S.E.2d 637, 639
(Ct. App. 1999) (citations omitted).

"A person who
. . . possesses with intent to distribute . . . cocaine
base . . . is guilty of a felony
. . . ."  S.C. Code Ann. § 44-53-375(B) (Supp. 2010).  The
South Carolina Code "creates a permissive inference that possession of
more than one gram of crack cocaine constitutes possession with intent to
distribute."  State v. James, 362 S.C. 557, 561, 608 S.E.2d 455,
457 (Ct. App. 2004) (discussing § 44-53-375(B)).

"Possession may be
actual or constructive," and "constructive possession occurs when the
person charged with possession has dominion and control over either the drugs
or the premises upon which the drugs are found."   State v. Ballenger,
322 S.C. 196, 199, 470 S.E.2d 851, 854 (1996) (citations and internal quotation
marks omitted).  Moreover, "[f]light has been held to constitute evidence
of guilty knowledge and intent."  State v. Ezell, 321 S.C. 421,
424, 468 S.E.2d 679, 681 (Ct. App. 1996). 

We hold the State introduced
sufficient evidence to create a jury question on constructive possession.  The
record included evidence Jenkins had dominion and control over the crack cocaine
in question because he was driving the car in which the crack cocaine was found,
and the crack cocaine was in a sandwich bag on the driver's-side floorboard. 

Moreover, the State provided
sufficient evidence to create a jury question of whether Jenkins knew the crack
cocaine was in the car and intended to distribute the drugs.  In addition to
the crack cocaine's location in the bag on the floorboard, the record
established that the amount of crack recovered was nearly seven times greater
than the minimum amount sufficient to allow the jury to infer intent to
distribute.  Jenkins also continued to flee the police even after an
acquaintance who was allegedly forcing Jenkins to flee jumped from the car.  See Ballenger, 322 S.C. at 200, 470 S.E.2d at 854 (noting that "flight
. . . is at least some evidence of guilt" for the charge of
possession with intent to distribute crack cocaine).  Accordingly, the trial
court properly denied the motions for a directed verdict.

Jenkins's remaining arguments
are not preserved.  See State v. Bryant, 383
S.C. 410, 418, 680 S.E.2d 11, 15 (Ct. App. 2009) ("An
issue must be raised and ruled upon in the [trial] court in order to be
preserved for appellate review.").

AFFIRMED.

FEW, C.J., and
THOMAS and KONDUROS, JJ., concur.

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