State v. Scott

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Kenneth Bernard Scott,       
Appellant.

Appeal From Greenville County

Joseph J. Watson , Circuit Court Judge

Unpublished Opinion No. 2004-UP-088

Submitted December 23, 2003 – Filed
February 12, 2004

APPEAL DISMISSED

Senior Assistant Appellate Defender Wanda P. Hagler, of Columbia,
for Appellant,

Attorney General Henry D. McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  A jury found Kenneth Bernard
Scott guilty of possession of cocaine with intent to distribute, possession
of cocaine with intent to distribute within close proximity of a school, trafficking
in crack cocaine, and possession of crack cocaine with intent to distribute
within close proximity of a school. He was fined $50,000 and received concurrent
sentences on the four charges, the longest of which was for 21 years.
[1]   On appeal, Scott’s counsel argues that the trial court erred in failing
to grant his motion for directed verdict on the charges.  In a response brief,
Scott raises eight issues dealing with subject matter jurisdiction, violations
of his Constitutional rights, and evidence suppression.  We dismiss Scott’s
appeal and grant counsel’s petition to be relieved.

I.       FACTS/PROCEDURAL HISTORY

While conducting a midnight search
of Scott’s father’s home pursuant to a valid search warrant based on a confidential
informant’s information, Sheriff’s Department investigators found Scott standing
fully dressed and alone over a toilet in a bathroom in the home.  Someone had
apparently just tried to flush the toilet, because water was swirling in it. 
An officer removed Scott from the bathroom and handcuffed him.  Another officer
found a bag containing crack cocaine in the toilet and a bag containing cocaine
on the floor where Scott had been found.  Investigating officers also found
Scott’s father in a bedroom, and another man sitting in the kitchen.  was subsequently
indicted for one count each of possession of cocaine with intent to distribute,
possession of cocaine with intent to distribute within close proximity of a
school, trafficking in crack cocaine, and possession of crack cocaine with intent
to distribute within close proximity of a school. 

In a September 2000 trial, the State provided testimony
from six law enforcement officials who investigated the crime scene where Scott
was arrested.  Their testimony indicated that when law enforcement entered and
secured Scott’s father’s house, they found Scott’s father in bedroom, another
man in the kitchen, and Scott in the bathroom with the illegal drugs.  At the
conclusion of the State’s case, Scott made a motion for directed verdict based
on a claim that the evidence was insufficient to support the charges.  Specifically,
Scott maintained that the office did not see drugs in the bathroom where Scott
was found until Scott had been removed and secured, and that Scott’s “mere presence”
alone was not enough to support the pending charges.  The trial court denied
the motion, finding sufficient circumstantial evidence existed to submit the
case to the jury.  Scott renewed the motion after all evidence was presented. 

Scott later filed a motion to reconsider his sentence,
for which the circuit judge held a hearing on April 21, 2001.  The judge issued
a written order three days later stating “Motion for Reconsideration of Sentence
in this case is respectfully denied.”  This appeal follows.

II.      ANDERS ISSUE

Scott contends that the trial court
erred in failing to grant his motion for directed verdict because he never had
actual or constructive possession of the drugs.  Specifically, Scott argues
that he had no actual possession of the drugs, and the evidence only suggests
his “mere presence” where the drugs were found rather than constructive possession
of the drugs.  Consequently, he concludes his state and federal due process
rights were violated.

“Conviction of possession requires proof of possession,
either actual or constructive, coupled with knowledge of the drug's presence.” 
State v. Williams, 346 S.C. 424, 430, 552 S.E.2d 54, 57 (2001). “Actual
possession occurs when the drugs are found to be in the actual physical custody
of the person charged with possession.”  Id.  “In order to prove constructive
possession, the State must show the defendant had dominion and control, or the
right to exercise dominion and control, over the drug.”  Id.  “Such possession
can be established by circumstantial or direct evidence or a combination of
the two.”  Id.  “Possession requires more than mere presence. The State
must show the defendant had dominion or control over the thing allegedly possessed
or had the right to exercise dominion or control over it.”  Id.  “Where
contraband materials are found on premises under the control of the accused,
this fact in and of itself gives rise to an inference of knowledge and possession
which may be sufficient to carry the case to the jury.”  Id.

In the present case, testimony from law enforcement
officers clearly indicated that Scott  was alone in the restroom where the drugs
were located, thus giving him dominion over the drugs.  Accordingly, when viewed
in the light most favorable to State, the circumstantial evidence in this case
at least reasonably tends to prove Scott’s guilt on the possession charges. 
Thus, the trial court did not err in denying his motion for directed verdict. 
See State v. Cooper, 334 SC 540, 551-52, 514 S.E.2d 584, 590 (1999)
(stating that “[i]n reviewing the denial of a motion for a directed verdict,
the evidence must be viewed in the light most favorable to the State, and if
there is any direct evidence or any substantial circumstantial evidence reasonably
tending to prove the guilt of the accused, an appellate court must find that
the case was properly submitted to the jury.”)

III.    PRO SE RESPONSE ISSUES

          A.      Subject Matter Jurisdiction

Scott argues that the court of appeals
lacks subject matter jurisdiction because he never received written notice or
an order granting or denying his Post-Trial motions.  He also argues that the
circuit court lacked subject matter jurisdiction because he (1) was never served
the charging instruments; (2) the indictments for distributing controlled substances
within the proximity of a school were invalid because “Greenville Tech is not
a public vocational or trade school or technical education center;” and (3)
the indictments were not filed with the Greenville County Clerk of Court.

          1.       Subject Matter Jurisdiction
of the Court of Appeals

Scott claims that he was never provided
a written order denying his post-trial motion for a new trial, this court lacks
subject matter jurisdiction to consider the appeal because the matter is stayed
pending his receipt of a written order expressing the trial court’s ruling on
his post-trial motion.  We disagree.

Scott bases his claim on Rule 29, SCRCrimP, which
partially provides that “[t]he time for appeal for all parties shall be stayed
by a timely post trial (sic) motion and shall run from the receipt of written
notice of entry of the order granting or denying such motion.”  However, the
court in this matter clearly issued a written order denying Scott’s post-trial
motion, and filed the Motion in the Office of the Greenville County Clerk of
Court.  Moreover, Scott’s counsel filed a notice of intent to appeal on May
3, 2002, which gave the South Carolina Court of Appeals exclusive jurisdiction
over the appeal and divested the lower court’s jurisdiction except to entertain
petitions for writs of supersedeas.  See Rule 205, SCACR (stating “[u]pon
the service of the notice of appeal, the appellate court shall have exclusive
jurisdiction over the appeal;  the lower court shall have jurisdiction to entertain
petitions for writs of supersedeas as provided by Rule 225.”)   Thus, we find
Scott’s contention that this Court lacks subject matter jurisdiction over his
appeal is meritless.

          2.       Subject Matter Jurisdiction
of the Circuit Court

Scott contends the circuit court lacked
subject matter jurisdiction to hear his case because he had never been served
with the indictments.  However, in his appearance before the court, he never
mentioned that he had not received the indictments.  Additionally, his appearance
at the trial, along with the inclusion of the indictments in the record on appeal,
suggests he received the indictments contrary to his assertions.

He next argues that the trial court lacked
subject matter jurisdiction to hear charges pertaining to distribution with
proximity of a school because “Greenville Tech is a private vocational trade
school” to which S.C. Code Ann. § 44-53-445 does not apply. [2]   However, we take judicial notice of the fact
that Greenville Technical College is a state-supported, and thus public, “technical
education center” to which Section 44-53-445 clearly applies.
[3]

Finally, Scott contends that the indictments
have not been filed with the Greenville County Clerk of Court, so the circuit
court there lacked jurisdiction to “entertain his case and sentence him.”  However,
the record contains certified copies of the indictments that were provided by
the Greenville County Clerk of Court, suggesting that office has filed copies
of the indictments.

          B.      Constitutional Violations

Scott maintains that his Constitutional
rights were violated (1) by the admission of prejudicial hearsay evidence related
to the confidential informant; (2) by the court’s failure to suppress evidence
obtained from a search conducted without compliance with “knock and announce”
requirements; (3) because he was arrested without probable cause; and (4) by
holding him in violation of his Fourteenth Amendment rights where “no
rational trial of fact would find [him] guilty of every fact and element of
his charges beyond a reasonable doubt.”  However, he never raised the first
three issues at trial.  Thus, they are not preserved for our review.  See
State v. Adams, 354 S.C. 361, 380, 580 S.E.2d 785, 795 (Ct. App. 2003)
(stating “[a]rguments not raised to or ruled upon by the trial court are not
preserved for appellate review.”); State v. Varvil, 338 S.C. 335, 339,
526 S.E.2d 248, 250 (Ct. App. 2000) (stating “Constitutional arguments are no
exception to the rule, and if not raised to the trial court are deemed waived
on appeal.”)  We find the merits of the fourth issue are so closely akin to
those of the directed verdict motion, and find no violation of his Fourteenth
Amendment rights accordingly.

CONCLUSION

After a review of the record as required by Anders
v. California, 386 U.S. 738 (1967), and State v. Williams, 305 S.C.
116, 406 S.E.2d 357 (1991),  and the forgoing reasons, we hold there are no
directly appealable issues that are arguable on their merits.  Accordingly,
we dismiss Scott’s appeal and grant counsel’s petition to be relieved.

APPEAL DISMISSED.

GOOLSBY, HOWARD, and KITTREDGE, JJ.,
concur.

[1] Scott received credit for time served.

[2] S.C. Code Ann. § 44-53-445(A) provides:

It is a separate criminal
offense for a person to distribute, sell, purchase, manufacture, or to unlawfully
possess with intent to distribute, a controlled substance while in, on, or
within a one-half mile radius of the grounds of a public or private elementary,
middle, or secondary school;  a public playground or park;  a public vocational
or trade school or technical educational center;  or a public or private
college or university.

(emphasis added)

[3] Greenville Technical College’s website states
that the school “is an accredited, state-supported institution of higher learning
….”  See http://www.greenvilletech.com/About/index.html.