State v. Senn

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

James O. Senn, Appellant.

Appeal From Lexington County

William P. Keesley, Circuit Court Judge

Unpublished Opinion No. 2009-UP-084

Submitted January 2, 2009 – Filed February
12, 2009

AFFIRMED

Appellate Defender Kathrine H. Hudgins, South Carolina Commission
on Indigent Defense, Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Julie M. Thames, all of Columbia; and Solicitor Donald V.
Myers, of Lexington, for Respondent.

PER CURIAM: James
O. Senn appeals his conviction for trafficking 400 or more grams of
methamphetamine, alleging the trial court erred in denying his motion for a
directed verdict and denying his request to charge lesser-included offenses. 

1. As to the directed
verdict motion, Agent Nathan McCoy testified the methamphetamine-containing
solution found in just one of the two containers in Senn’s possession weighed
well over 400 grams.  Accordingly, the trial court properly denied Senn’s
directed verdict motion.  State v.
Weston, 367 S.C. 279, 292-93, 625
S.E.2d 641, 648 (2006) (“When ruling on a motion for a directed verdict, the
trial court is concerned with the existence or nonexistence of evidence, not
its weight.  A defendant is entitled to a directed verdict when the state fails
to produce evidence of the offense charged.”).

2. As to charging
lesser-included offenses, we initially note Senn never requested a “simple
possession” charge at trial.  Furthermore, with regard to the lesser-included
offense of trafficking less than 400 grams, we find no evidence in the record
supporting such a charge.  See S.C. Code Ann. § 44-53-375(C)(5) (Supp. 2008)
(establishing the crime of trafficking 400 or more grams of methamphetamine,
and referencing § 44-53-210(d) to supply the definition of methamphetamine);
S.C. Code Ann § 44-53-210(d) (2002) (defining methamphetamine to include any
material, compound, mixture, or preparation which contains any quantity of
methamphetamine, its salts, and salts of isomers);  see also State v.
Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001) (internal citation
omitted) (“The law to be charged
must be determined from the evidence presented at trial.”); State v. Geiger,
370 S.C. 600, 608, 635 S.E.2d 669, 674 (Ct. App. 2006) (“The mere contention
that the jury might accept the State’s evidence in part and reject it in part
is insufficient to satisfy the requirement that some evidence tend to show the
defendant was guilty only of the lesser offense.”).

AFFIRMED.[1]

WILLIAMS,
PIEPER, and GEATHERS, JJ., concur.

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