State v. Joseph M. Swaringen

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Joseph Martin Swaringen, Appellant.

Appellate Case No. 2022-000928

Appeal From Greenville County
Perry H. Gravely, Circuit Court Judge

Opinion No. 6109
Heard November 14, 2024 – Filed April 23, 2025

AFFIRMED

Clarence Rauch Wise, of Greenwood, for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Attorney General Mark Reynolds Farthing,
both of Columbia, and Solicitor William Walter Wilkins,
III, of Greenville, all for Respondent.

THOMAS, J.: Joseph Martin Swaringen appeals his conviction of trafficking
methamphetamine more than twenty-eight grams, but less than one hundred grams,
and the corresponding sentence of life in prison without the possibility of parole.
On appeal, he argues the trial court erred in (1) failing to direct a verdict as to the
trafficking charge because the substances in the four individual bags were
commingled before testing; (2) holding the chain of custody was properly
established; (3) failing to charge the lesser-included offense of simple possession
of methamphetamine; (4) admitting the seized items into evidence when the
officers handling the evidence failed to comply with the South Carolina Law
Enforcement Division (SLED) regulations for handling evidence pursuant to
section 44-53-485 of the South Carolina Code (2018); (5) failing to suppress the
evidence found in the motorcycle saddlebag; and (6) failing to give the requested
jury charge. We affirm.
FACTS

Appellant, riding a motorcycle, was involved in a motor vehicle accident and
attempted to flee the scene. The other driver restrained Appellant until emergency
medical personnel arrived. Appellant was taken by ambulance to Prisma Health
Greenville Memorial (Greenville Memorial) for treatment, which led to the
discovery of methamphetamine in his personal belongings and his subsequent
arrest. Appellant was indicted for trafficking methamphetamine. The case
proceeded to trial, but a mistrial was declared on the first day.
Prior to the first trial, the State filed notice of its intent to seek life without parole.
Defense counsel filed a "general suppression motion" seeking the exclusion of the
evidence discovered in Appellant's personal belongings. Defense counsel argued,
inter alia, the inventory search of the motorcycle saddlebag constituted an
improper search because the hospital employee who conducted the initial search
was acting as a government agent under a lease agreement (the Lease).1 Defense
counsel presented the Lease and argued that the GHA is a political subdivision,
therefore its employees are government agents. The State rebutted, arguing there
were no constitutional violations because the drugs were found by a hospital
employee prior to and without intervention from law enforcement. The trial court
conducted an in limine hearing to address the Fourth Amendment issues. 2
Edmonds testified her inventory search of Appellant's belongings was pursuant to
hospital policy, and the procedure was conducted for the benefit and protection of
both the hospital and the patients. Pursuant to that protocol, the belongings of all
patients brought to the emergency room were inventoried, logged, and secured if

1
The Lease is between the Greenville Health Authority (GHA), lessor, a political
subdivision of South Carolina, and Upstate Affiliate Organization, lessee, a South
Carolina nonprofit organization. Greenville Memorial was one of the locations
contained within the Lease.
2
The trial court heard testimony from (1) paramedic and first responder, Alex
Henry; (2) patient liaison at Greenville Memorial, Lisa Edmonds; (3) Officer Chris
Miller from the GHA Police Department; and (4) Prisma Health Investigator Alvin
Harrison.
anything valuable was found. Edmonds believed the inventory procedure policy
was a written one, and she confirmed she prepared an inventory list of Appellant's
belongings but was not personally in possession of the list because she was no
longer employed by the hospital. Edmonds verified she was not instructed by law
enforcement to conduct the search. Defense counsel argued the search was
unreasonable in violation of the Fourth Amendment because there was no written
policy for inventory searches by hospital employees. The trial court found there
was no search in violation of the Fourth Amendment, stating, "Critical help is a
private or profit hospital, not a government actor. . . . It was not for the specific
purpose of incriminating a patient but for the protection of both the hospital and
the patient. . . . It was an inventory by a hospital employee, not a search by law
enforcement."
On the first day of trial, a mistrial was granted due to a late-received chain of
custody form. Prior to jury qualification at the second trial, the parties stipulated
that any motions heard and ruled upon at the first trial would be in effect during
this trial. Because Investigator Harrison would not be testifying at the second trial,
a stipulation of hospital video evidence was filed with the trial court. The
stipulation read, in pertinent part:
There is no video from inside the trauma bay as those
cameras were not operational at the time. Alvin Harrison
did ask for those cameras to be fixed due to their
inoperability. [He] did not save all of the potentially
relevant video. The video of the loading dock stops
before EMT [personnel] retrieve the saddlebag from the
ambulance as well as before Lisa Edmonds physically
transfers the alleged contraband to Officer Miller.
At the second trial, the State called EMT Michael McKnight. He testified that,
upon arriving at the hospital, he transferred Appellant to the trauma team and gave
a verbal report to hospital staff. McKnight then brought the saddlebag to the
outdoor security post in the trauma bay where the on-duty security guard
conducted a brief search of the bag and returned it to McKnight. McKnight then
placed the items on the trauma nurse's pedestal in the trauma room and advised the
staff present in the room that the belongings were Appellant's.
Edmonds reiterated her testimony from the first trial. She was presented with
CCTV footage from the hospital on the night of the incident and testified to seeing
herself on camera and conducting the inventory of Appellant's belongings.
Edmonds stated that while inventorying the belongings, she found several baggies
containing what she suspected were drugs. She immediately contacted campus
security and gave the bag containing the substances to the responding officer,
Officer Miller. Officer Miller testified that on the night of the incident, he was
acting as security for the hospital. He testified he was called to the trauma bay to
retrieve suspected drugs, was handed the bag by Edmonds, and then transported
the bag to his office to conduct a field test on the substance. The field test
positively identified methamphetamine. Officer Miller took photos of the baggies
containing the substances, packaged the substances, placed them into a secure
evidence locker, and filled out a Property and Evidence sheet.
The State then sought to admit a Property and Evidence form prepared by the
officers from the GHA Police Department and defense counsel objected. As
support for the objection, defense counsel asserted the form was missing
information required by SLED's regulations for the handling of controlled
substances. In rebuttal, the solicitor noted Officer Miller and other witnesses
would be testifying about what happened to the drugs, which would permit defense
counsel to cross-examine them about any discrepancies that existed between their
testimony and what was listed on the form. The trial court ultimately admitted the
document. Officer Eric Keiper of the GHA Police Department testified he
removed the items from the evidence locker and transported them to the GHA
Police Department Property and Evidence facility where he requested a laboratory
analysis from the Greenville County Crime Laboratory. Another evidence
custodian, Kara Bennick, testified to receiving the items at Property and Evidence.
James Armstrong, supervising chemist at the Greenville County Crime Laboratory,
testified that he received the baggies of crystal-like substances from Property and
Evidence. He could not weigh the bags individually because "all the bags had
loose material around them and it was kind of mixing, so it was a total weight."
Armstrong's photographs of the baggies of methamphetamine were admitted into
evidence.3 Additional evidence was presented about the property in Appellant's
possession at the time of the incident, which included $682.25 in cash.

Following Armstrong's testimony, the State rested, and the defense made a motion
for a directed verdict on the grounds that Armstrong could only conclusively say
that less than one one-hundredth of a gram, the amount he tested, was
methamphetamine, and there were issues as to where exactly the
methamphetamine was found within Appellant's personal belongings. The court

3
The photographs depicted four plastic baggies containing a
uniform-in-appearance white crystal-or-rock-like substance having weights–with
packaging included–of 21.2 grams, 6.7 grams, 4.13 grams, and 2.16 grams.
denied the motion, finding there was enough evidence presented to render the
issues as questions for the jury. Defense counsel also argued the trial court should
suppress the evidence based on an improper chain of custody and noncompliance
with SLED regulations pursuant to section 44-53-485 of the South Carolina Code.
The trial court denied the motion finding, "proof of chain of custody need not
negate all possibility of tampering so long as a chain of possession is complete.
And I think we have testimony that makes it complete." The court further found,
"the totality of all the documents comply with the regulations." Finally, defense
counsel orally asked the court to instruct the jury it must acquit Appellant if the
chain of custody was not proven beyond a reasonable doubt. Defense counsel
submitted a requested jury charge that read:

In order to convict the defendant, the [S]tate is required
to prove that the items seized were in fact the same items
analyzed by the laboratory. To accomplish this the
[S]tate is required to establish a complete chain of
custody that the items seized were in fact the same items
analyzed. If you find the [S]tate has not established
beyond a reasonable doubt this complete chain of
custody, then you are to find the defendant not guilty. 4

The trial court declined to charge the jury with the requested jury charge.
Appellant was convicted as indicted, and the trial court sentenced Appellant to a
mandatory term of life imprisonment without parole. This appeal followed.

STANDARD OF REVIEW

Issue 1
An appellate court reviews the denial of a directed verdict by viewing the evidence
and all reasonable inferences in the light most favorable to the State. State v.

4
Below the requested charge, defense counsel cited to State v. Carter, 344 S.C.
419, 425, 544 S.E.2d 835, 837-38 (2001):

The evidence that a saliva sample was placed in the kit
simply contradicts the State's evidence negating
tampering, thereby creating a factual issue. In sum, we
find the evidence of a discrepancy in the contents of the
kit does not render the blood sample inadmissible but
goes only to its weight as credible evidence.
Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). "A case should be
submitted to the jury if there is any substantial evidence, either direct or
circumstantial, which tends to prove the guilt of the accused or from which his
guilt may be fairly and logically deduced." Brown v. State, 307 S.C. 465, 468, 415
S.E.2d 811, 812 (1992). "[O]ur duty is not to weigh the plausibility of the parties'
competing explanations. Rather, we must assess whether, in the light most
favorable to the State, there was substantial circumstantial evidence from which
the jury could infer [the defendant's] guilt." State v. Larmand, 415 S.C. 23, 32, 780
S.E.2d 892, 896 (2015).

Issues 2, 4, and 5

"The admission or exclusion of evidence is a matter within the trial court's sound
discretion, and an appellate court may only disturb a ruling admitting or excluding
evidence upon a showing of a 'manifest abuse of discretion accompanied by
probable prejudice.'" State v. Commander, 396 S.C. 254, 262-63, 721 S.E.2d 413,
417 (2011) (quoting State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48
(2006)). "An abuse of discretion occurs when the conclusions of the trial court
either lack evidentiary support or are controlled by an error of law." State v.
Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).

Issues 3 and 6
The appellate court must view the jury charge as a whole and in light of the
evidence and issues presented at trial. State v. Simmons, 384 S.C. 145, 178, 682
S.E.2d 19, 36 (Ct. App. 2009). "A trial court's decision regarding jury charges will
not be reversed where the charges, as a whole, properly charged the law to be
applied." State v. Wharton, 381 S.C. 209, 213, 672 S.E.2d 786, 788 (2009). A
jury charge is appropriate if it is substantially correct and adequately covers the
law applicable to the case. State v. Foust, 325 S.C. 12, 16, 479 S.E.2d 50, 52
(1996). An appellate court will only reverse a trial judge's decision regarding jury
instructions when that decision constitutes an abuse of discretion resulting in
prejudice. Clark v. Cantrell, 339 S.C. 369, 389-90, 529 S.E.2d 528, 539 (2000).

LAW/ANALYSIS

A. Motion for Directed Verdict Based on Commingling of Evidence

Appellant argues the trial court erred in failing to direct a verdict as to the
trafficking charge when the chemist testified the substances in the four individual
bags were commingled. We disagree. Appellant maintains the testimony
presented during trial was insufficient to establish that what was contained in the
four separate bags was, in fact, methamphetamine because the contents of the bags
were commingled by the State prior to analysis. However, we find the State
provided sufficient evidence to send the issue to the jury. See State v. Cherry, 348
S.C. 281, 286, 559 S.E.2d 297, 299 (Ct. App. 2001) (finding the trial court
properly denied the motion for a directed verdict on the charge of possession with
intent to distribute crack cocaine, and that the question of whether the crack
cocaine found on Cherry's person was for personal use or distribution was for the
jury to decide), aff'd, 361 S.C. 588, 593, 606 S.E.2d 475, 477 (2004).
In Cherry, this court found the combination of factors constituted evidence that
would reasonably tend to prove Cherry intended to distribute crack such that the
matter was properly submitted to the jury. Id. The evidence presented warranting
submission to the jury was as follows:
[T]he arrest occurred in a high crime area known for
violence and drug activity; Cherry had a small bag
containing eight rocks of crack cocaine on his person; he
had no crack pipe or other drug paraphernalia indicating
the crack cocaine was for his personal consumption; he
had $322.00 cash on his person, mostly in twenty dollar
bills; and Officer Parker testified a single rock of crack
cocaine is typically sold for twenty dollars.

361 S.C. at 594-95, 606 S.E.2d at 478.
South Carolina courts have yet to address the significance or suppressibility of
drug evidence if it is shown to have been commingled prior to lab testing.
However, other jurisdictions have addressed this issue. In People v. Coleman, a
police officer commingled one small bag of white powder that he field-tested for
drugs with fourteen other small bags that he did not test. 909 N.E.2d 952, 958 (Ill.
Ct. App. 2009). The defendant argued the commingling constituted tampering,
alteration, or substitution of the substance in the bags. Id. However, the appellate
court found that the mixing did not change the substance so as to increase the
defendant's criminal liability. Id. at 962. The defendant failed to rebut the State's
prima facie case regarding the chain of custody, and the forensic scientist's testing
of the combined contents determined that all of it was cocaine. Id. In Sheffield v.
State, the Court of Appeals of Texas, Tyler, found the commingling of pills was
not harmful because the chemist's tests established that at least one of the pills
delivered by the defendant contained the controlled substance. 635 S.W.2d 862,
864 (Tex. Ct. App. 1982). The Supreme Court of Florida addressed the
commingling of powdered cocaine prior to lab testing in Greenwade v. State, 124
So.3d 215 (Fla. 2013). There, the court found that the evidence did not establish
the quantity element of a trafficking charge because the State combined, tested,
and weighed contents of nine small bags found in defendant's possession instead of
testing each bag for cocaine individually before commingling and weighing their
contents. Id. at 230-31. Importantly, however, the Greenwade court distinguished
certain situations in which the testing and weighing of drugs after commingling is
proper:

While we hold that the State must chemically test every
individually wrapped packet of white powder seized in
order to establish the statutory threshold weight for
trafficking, we emphasize that this rule only applies when
the substance discovered is one that poses an identifiable
danger of misidentification, such as the white powder
discovered in this case. If the chemical composition of
the substance seized does not pose a danger of
misidentification, the State is not required to chemically
test individually wrapped packets in order to establish the
requisite statutory weight for trafficking. See Bond [v.
State], 538 So.2d [499,] 500 [Fla. Dist. Ct. App. 1989]
(holding that the rule in Ross [v. State, 528 So.2d 1237
(Fla. Dist. Ct. App. 1988)] did not apply to rock cocaine);
see also Pama [v. State], 552 So.2d [309,] 312 [(Fla.
Dist. Ct. App. 1989)] (similar holding with respect to
marijuana).

Id. at 229.
We find sufficient evidence was presented to establish the random samples
collected from the uniform substance, which collectively weighed 29.65 grams,
tested positive for methamphetamine during both an officer's initial field testing
and upon subsequent analysis at the laboratory, which supported a logical and
rational conclusion that the tested, and similar looking untested items, were the
same substance: methamphetamine. The substance at issue here does not pose an
identifiable danger of misidentification, as was the issue in Greenwade. The
substance here was not an indistinct powder-like cocaine. The uniform substances
were crystal and rock-like in appearance. Accordingly, we find this issue was
properly sent to the jury.

B. Chain of Custody
Appellant argues the trial court erred in holding the chain of custody was properly
established because testimony at trial and the hospital video 5 established the
investigating officers left the emergency room without the alleged drugs and no
testimony ever established when they obtained possession of the alleged drugs
after their departure from the emergency room. We disagree.

Our supreme court has held, "a party offering into evidence fungible items such as
drugs or blood samples must establish a complete chain of custody as far as
practicable." State v. Pulley, 423 S.C. 371, 377, 815 S.E.2d 461, 464 (2018)
(emphasis added) (quoting State v. Hatcher, 392 S.C. 86, 91, 708 S.E.2d 750, 753
(2011)). "Courts have abandoned inflexible rules regarding the chain of custody
and the admissibility of evidence in favor of a rule granting discretion to the trial
courts." Hatcher, 392 S.C. at 94, 708 S.E.2d at 754. When multiple people have
handled the analyzed substance, "the identity of individuals who acquired the
evidence and what was done with the evidence between the taking and the analysis
must not be left to conjecture." State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205
(2007). "Testimony from each custodian of fungible evidence, however, is not a
prerequisite to establishing a chain of custody sufficient for admissibility." Id. at 7,
647 S.E.2d at 206. "Where other evidence establishes the identity of those who
have handled the evidence and reasonably demonstrates the manner of handling of
the evidence, our courts have been willing to fill gaps in the chain of custody due
to an absent witness." Id.
We find the chain of custody was established. The trial court heard testimony from
EMTs, hospital personnel, campus security, property and evidence custodians, and
the chemist. We find each step of the chain of custody has been properly
established based on the testimony from the time it was received to the time it was
tested. See State v. Trapp, 420 S.C. 217, 233, 801 S.E.2d 742, 750 (Ct. App. 2017)
(holding the trial court does not need to "account for every minute of the custody
and control of the evidence" but must ensure that the evidence is what it purports to
be and has not been altered in any material respect). Appellant attempts to liken

5
We are unpersuaded by Appellant's argument that the hospital video established
there was no handoff of the belongings from Edmonds to Officer Miller. Prior to
the start of trial, the parties stipulated that, due to certain cameras being inoperable
on the night of the incident, the handoff was never recorded. Appellant repeatedly
argues Edmonds never gave Officer Miller the substances, however both Edmonds
and Officer Miller testified this transaction occurred, and both Appellant and the
State knew prior to trial that such interaction was not recorded, due to no fault of
either party.
this case to Pulley; however, this case is distinguishable because in Pulley, our
supreme court found the chain of custody was not properly established because the
cumulation of the following errors equated to conjecture: (1) the express denial of
handling the cocaine by responding officer, Officer Brewer; (2) the stipulation of a
missing link by the State; (3) the subsequent reversal by Officer Brewer that he did
in fact take the cocaine from the scene; and (4) the State's failure to produce
testimony from the other responding officer, Officer Craven, indicating how he
obtained possession of the cocaine after the drugs were seen on the hood of Officer
Brewer's car. 423 S.C. at 378-79, 815 S.E.2d at 465. Here, hospital staff and
security personnel were able to identify each link in the chain from the moment the
belongings were transferred to the hospital to the time they were tested. There are
no missing links or express denials from those who handled the drugs. We hold
the trial court did not err in finding the chain of custody properly established as far
as practicable.

C. Lesser-Included Jury Charge
Appellant argues the trial court erred by failing to instruct the jury on the
lesser-included offense of possession of methamphetamine because, due to the
commingling of the evidence, the jury was not required to accept that the entirety
of the substance found in his belongings was methamphetamine. We disagree.
"A trial judge is required to charge a jury on a lesser included offense if there is
evidence from which it could be inferred that a defendant committed the lesser
offense rather than the greater." State v. Drafts, 288 S.C. 30, 32, 340 S.E.2d 784,
785 (1986). "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." State v.
Geiger, 370 S.C. 600, 608, 635 S.E.2d 669, 674 (Ct. App. 2006). In State v.
Raffaldt, our supreme court held "it is the amount of cocaine, rather than the
criminal act, which triggers the trafficking statute and distinguishes trafficking
from distribution and simple possession." 318 S.C. 110, 117, 456 S.E.2d 390, 394
(1995). "If the amount of cocaine, or any mixture containing cocaine, is ten grams
or more, the trafficking statute is applied." Id. That is, when all the evidence
indicates the defendant was dealing in quantities of cocaine over ten grams, the
defendant is only entitled to charges on trafficking, not distribution or possession.
Id.; see also Matthews v. State, 300 S.C. 238, 241, 387 S.E.2d 258, 260 (1990)
(finding when there is conflicting evidence as to whether the amount of the
contraband is sufficient to invoke the trafficking statute, the court should submit
charges to the jury on both trafficking and possession with intent to distribute;
where, however, the "undisputed evidence is that the amount involved exceeds the
minimum trafficking amount, then only the trafficking charge should be submitted
to the jury"). In State v. Kirkpatrick, this court also applied the rule from Matthews
and held that if the undisputed evidence shows that the amount of drugs involved
exceeds the minimum trafficking amount, then only the trafficking charge should
be submitted to the jury without instruction on the lesser-included offense of
possession with intent to distribute. 320 S.C. 38, 46, 462 S.E.2d 884, 890 (Ct.
App. 1995).
We find the evidence presented did not warrant a lesser-included instruction.
There was evidence at trial reasonably tending to prove Appellant's guilt of
trafficking methamphetamine and from which a jury could fairly and logically
deduce his guilt of that offense. The evidence and testimony presented during trial
established that randomly-selected sampling taken from a similar-looking
substance found inside four plastic baggies that had been hidden together in
Appellant's belongings tested positive for methamphetamine. This evidence
supported a rational and logical conclusion that the entire substance, which
collectively weighed more than twenty-eight grams, was methamphetamine that
was possessed by Appellant. Further, the jurors heard testimony from the officers,
emergency personnel, hospital employees, evidence custodians, and a chemist who
handled the substances from the moment Appellant was transported to the hospital
until the lab testing. Finally, additional circumstances surrounding the accident
and Appellant's other personal belongings discovered at the hospital supported a
charge of trafficking. Appellant was found with almost $700 in cash on his person.
Immediately following the accident, for which he was not at fault, Appellant acted
irate and tried to flee the scene on foot. He only remained at the crash site when
the other driver and a bystander "pinned him down" while they waited for
emergency personnel. We find this combination of factors is sufficient for the jury
to infer the amount of drugs found in Appellant's saddlebag supported the charge
of trafficking. The trial court sufficiently instructed the jury on the elements of the
trafficking charge and what a guilty verdict would require. The trial court did not
err in refusing to instruct the jury on the lesser-included charge of possession.

D. Suppression Based on Compliance with SLED Regulations Pursuant to
Section 44-53-485

Appellant argues the trial court erred in admitting the seized items into evidence
when the officers handling the evidence failed to comply with the SLED
regulations for handling evidence pursuant to section 44-53-485. While we
acknowledge there may have been flaws in the reporting of the evidence, like the
trial court, we do not believe the adequate remedy here, as Appellant requests, is
the total suppression of the evidence. We affirm.
"The cardinal rule of statutory construction is to ascertain and effectuate the intent
of the [General Assembly]." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578,
581 (2000). "The legislature's intent should be ascertained primarily from the plain
language of the statute." Ex parte Cannon, 385 S.C. 643, 655, 685 S.E.2d 814, 821
(Ct. App. 2009) (quoting Georgia–Carolina Bail Bonds, Inc. v. County of Aiken,
354 S.C. 18, 23, 579 S.E.2d 334, 336 (Ct. App. 2003)). "If, however, the language
of the statute gives rise to doubt or uncertainty as to legislative intent, the
construing court looks to the statute's language as a whole in light of its manifest
purpose." Id. "The construing court may additionally look to the legislative
history when determining the legislative intent." Id. Section 44-53-485 deals with
the handling of seized controlled substances. The pertinent subsection reads:
"Controlled substances seized pursuant to this article must be inventoried, reported,
audited, handled, tested, stored, preserved, or destroyed pursuant to procedures
promulgated by [SLED]." § 44-53-485(A).

At trial, as part of his challenge to the sufficiency of the chain of custody, defense
counsel argued the officers failed to comply with SLED's regulations, which he
maintained required the trial judge to find an incomplete chain of custody and
suppress the drug evidence. In response, the trial judge asked defense counsel if he
had any case law to support that particular argument, and defense counsel
responded solely by pointing to the "must" language in section 44-53-485(A).
Unconvinced, the trial judge noted the legislature did not include any
repercussions, including suppression, for noncompliance in that particular statute.
Defense counsel conceded the legislature could have added a remedy if it so
desired. Nevertheless, defense counsel continued to maintain the officers had not
complied with the requirements of SLED's regulations. The trial court declined to
suppress the evidence. In doing so, the trial judge found the documentation related
to the handling of Appellant's methamphetamine either complied or substantially
complied with SLED's regulations and a complete chain of custody had been
established. We agree the documentation substantially complied. Further, the trial
judge noted the legislature would have included a remedy of suppression for a
violation of the statute, which had never been interpreted in the manner being
advanced by defense counsel despite being in place since 1992, if one had been
intended. Appellant cites to specific instances that rose to the level of
noncompliance with the statute. We agree with the trial court's ruling denying
suppression based on the statute's plain language. Nowhere in the language of the
statute does the legislature provide a suppression remedy if the handling of the
evidence is not sufficient. Just as the trial judge recognized, the legislature elected
not to include any remedy, including suppression, for a violation of that statute;
therefore, suppression was not warranted regardless of any statutory
noncompliance in light of the trial court's correct conclusion a complete chain of
custody had been established.

E. Evidence Suppression Based on Search by Private Citizen

Appellant argues the trial court erred in failing to suppress the evidence found in
the saddlebag because hospital staff acted as government agents pursuant to the
Lease so Fourth Amendment protections apply. Additionally, Appellant argues
because the hospital policy for inventorying patient belongings was not written, it
was not a valid policy and therefore constituted an unreasonable search. We
disagree. "The fourth amendment is wholly inapplicable to a search or seizure,
even an unreasonable one, effected by a private individual not acting as an agent of
the government and without the participation or knowledge of government
officials." State v. McSwain, 292 S.C. 206, 207, 355 S.E.2d 540, 541 (1987).
Defense counsel relied on the United States Supreme Court's decision in Ferguson
v. City of Charleston 6 and Burton v. Wilmington Parking Authority7 to argue
hospital staff members constituted government agents because of the Lease.
Appellant's reliance on Ferguson is misplaced because the circumstances are
distinguishable. In Ferguson, the United States Supreme Court was tasked with
deciding "whether a state hospital's performance of a diagnostic test to obtain
evidence of a patient's criminal conduct for law enforcement purposes [wa]s an
unreasonable search if the patient had not consented to the procedure." 532 U.S. at
69-70. In Ferguson, staff members at the Medical University of South Carolina
(MUSC), a public hospital, grew increasingly concerned with the increase in the
use of cocaine by pregnant patients. Id. at 70. Because of the growing concern,
MUSC staff offered to cooperate with the city in prosecuting mothers who tested
positive for drugs at birth. Id. at 70-71. A task force was created that consisted of
MUSC representatives, police, and local officials to develop a policy and set forth
procedures for identifying and testing pregnant patients suspected of drug use. Id.
at 71. The policy required that a chain of custody be followed when obtaining and
testing patients' urine samples and contained police procedures for arresting
patients who tested positive. Id. at 71-72. Finally, the protocol added the threat of
law enforcement intervention and prescribed prosecutions for drug offenses, child
neglect, or both, depending on the stage of the pregnancy and whether she tested
positive at the time of delivery. Id. at 72-73. The Supreme Court found the tests
themselves, and the reporting of positive test results to police were unreasonable

6
532 U.S. 67 (2001).
7
365 U.S. 715 (1961).
searches absent the parties' consent, and in light of the policy's law enforcement
purpose. Id. at 83-85. Here, the trial court heard testimony from Edmonds, who
repeatedly confirmed she conducted inventory searches for all incoming patients
with no direction from law enforcement. We find the trial court properly denied
the defense's motion because Edmonds's inventory served no purpose but to protect
the hospital and its patients. Edmonds was not seeking out criminal activity when
she inventoried Appellant's belongings. In comparison, the hospital staff in
Ferguson was explicitly working in conjunction with city prosecutors to seek out
and punish mothers who tested positive for drugs when they gave birth. Testimony
from employees at the hospital corroborated Edmonds's statements that the purpose
of the inventory search procedure was to protect the hospital and patients from
guns or other weapons. Additionally, Edmonds testified when she inventories
patient belongings and finds large sums of cash, or multiple credit cards, or other
tangible items of value such as jewelry, she secures those for the benefit of the
patients. Unlike Ferguson, the circumstances of this inventory were not law
enforcement motivated.
Next, Appellant relies on the Supreme Court's holding in Burton, which stated,
"Specifically defining the limits of our inquiry, what we hold today is that when a
State leases public property in the manner and for the purpose shown to have been
the case here, the proscriptions of the Fourteenth Amendment must be complied
with by the lessee as certainly as though they were binding covenants written into
the agreement itself." 365 U.S. at 726. However, the Supreme Court further
clarified the "limits of [its] inquiry" by finding:

Because readily applicable formulae may not be
fashioned, the conclusions drawn from the facts and
circumstances of this record are by no means declared as
universal truths on the basis of which every state leasing
agreement is to be tested. Owing to the very 'largeness'
of government, a multitude of relationships might appear
to some to fall within the Amendment's embrace, but
that, it must be remembered, can be determined only in
the framework of the peculiar facts or circumstances
present.

Id. at 725-26.

In Burton, a man was refused service at a restaurant solely because of his race. Id.
at 716. The restaurant was operated by a private owner under a lease agreement in
a building financed by public funds and owned by the city's parking authority (the
Authority), which was an agency of the State of Delaware. Id. The court looked to
several factors to determine whether state action was present and ultimately
determined:

Addition of all these activities, obligations and
responsibilities of the Authority, the benefits mutually
conferred, together with the obvious fact that the
restaurant is operated as an integral part of a public
building devoted to a public parking service, indicates
that degree of state participation and involvement in
discriminatory action which it was the design of the
Fourteenth Amendment to condemn.
Id. at 724.

We find the addition of all the circumstances here shows hospital employees were
not acting as government agents when they inventoried Appellant's belongings.
Further, even if the search was not considered to be a private search, we find
Appellant's suppression motion was correctly denied because Appellant's
methamphetamine was found during the course of a valid inventory search that
was properly conducted by a hospital employee pursuant to routine hospital
policies and procedures, which rendered the search constitutionally reasonable
under the circumstances involved.
F. Flaws in Chain of Custody Jury Charge
Appellant argues the trial judge erred in failing to give the requested charge as to
how the jury should address any flaws in the chain of custody. We disagree.

A trial judge in South Carolina is constitutionally prohibited from making any
comments that could be construed as offering an opinion on the facts of the case.
See S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matters of
fact, but shall declare the law."). South Carolina courts have yet to address
whether a jury instruction on flaws in the chain of custody would be appropriate.
However, other jurisdictions have held a trial court's failure to deliver a jury
instruction concerning the chain of custody did not render the trial unfair. See
United States v. Boykins, 9 F.3d 1278, 1285 (7th Cir. 1993) (finding the jury was
allowed to hear and evaluate evidence on gaps in the chain of custody, there was
no proof of tampering with the exhibits, and the jury resolved the issue consistent
with its verdict, indicating that the absence of the instruction did not affect the
fairness of the trial).
Even in his requested jury charge, defense counsel included the citation to Carter,
which stated a factual issue was created when "[t]he evidence that a saliva sample
was placed in the kit simply contradicts the State's evidence negating tampering,
thereby creating a factual issue." 344 S.C. at 425, 544 S.E.2d at 837-38. The
Carter court further found the evidence of a discrepancy in the contents of the kit
did not render the blood sample inadmissible but only went to its weight as
credible evidence. Id. at 425, 544 S.E.2d at 838. In Carter, the court found no
missing link in the chain of custody because all custodians testified and were able
to be cross-examined. Id. at 424-25, 544 S.E.2d at 837. Here, like our supreme
court in Carter, we find the chain of custody was properly established as far as
practicable; therefore, any discrepancies created at trial are purely factual issues
and the trial court is prohibited from instructing the jury on matters of fact. We
further find the trial court's jury charge was appropriate because it was
substantially correct and covered the law applicable to the case. When viewing
this particular jury charge as a whole and in light of the evidence presented at trial,
we find the final instructions were sufficient, even without the inclusion of a chain
of custody instruction. Particularly, the trial court reminded the jurors they were to
determine the weight and value of each particular piece of evidence. Throughout
the trial, defense counsel highlighted the discrepancies in the chain of custody
through examination of the chain of custody witnesses. The jury was capable of
forming its own conclusions as to the sufficiency and accuracy of the chain of
custody based upon testimony. We hold the trial court did not err in denying
Appellant's requested jury charge on chain of custody.

CONCLUSION
Based on the foregoing, Appellant's conviction and sentence are
AFFIRMED.

HEWITT and VINSON, JJ., concur.