State v. Shumate

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.

Dominique Jarard Shumate, Appellant.

Appellate Case No. 2012-212057

Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-410
Heard October 7, 2014 – Filed November 19, 2014

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Julie Kate Keeney, both of Columbia,
for Respondent.

PER CURIAM: Dominique J. Shumate appeals his convictions of trafficking
cocaine base, possession of a weapon during the commission of a violent crime,
distribution of cocaine base, possession of a controlled substance, and possession
of crack cocaine. He argues the trial court erred in refusing to (1) suppress
evidence found pursuant to a search warrant that was returned to the chief
magistrate rather than the issuing magistrate; (2) suppress evidence seized pursuant
to a search warrant lacking probable cause; (3) direct verdicts of acquittal because
Shumate was merely present where the drugs and weapon were found; and (4)
direct a verdict of acquittal for the distribution charge. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:

1. As to Shumate's argument the trial court erred in failing to suppress evidence
found pursuant to a search warrant that was returned to the chief magistrate rather
than the issuing magistrate: S.C. Code Ann. § 17-13-140 (2014) (directing a
warrant "shall be returnable to the issuing magistrate"); State v. Weaver, 374 S.C.
313, 323, 649 S.E.2d 479, 484 (2007) (finding the failure to observe a ministerial
requirement in the execution and return of a warrant does not void the warrant
unless the defendant shows prejudice); State v. Wise, 272 S.C. 384, 386, 252
S.E.2d 294, 295 (1979) (finding the State's failure to fulfill a ministerial
requirement by not returning the warrant to the issuing magistrate within the ten-
day period prescribed by law did not void the warrant because the defendant failed
to show he was prejudiced by the delay).

2. As to Shumate's argument the trial court erred in failing to suppress evidence
seized pursuant to a search warrant that allegedly lacked probable cause: State v.
Bellamy, 336 S.C. 140, 145, 519 S.E.2d 347, 349 (1999) (finding an affidavit in
support of a search warrant was sufficient despite being weak on the element of the
reliability of the informant because of a "strong showing of specificity, first-hand
observation, and partial corroboration"); State v. Dupree, 354 S.C. 676, 691, 583
S.E.2d 437, 445 (Ct. App. 2003) (holding "if a controlled buy is properly
conducted, the controlled buy alone can provide facts sufficient to establish
probable cause for a search warrant"); id. at 685, 583 S.E.2d at 442 ("The
magistrate's task in determining whether to issue a search warrant is to make a
practical, common sense decision concerning whether, under the totality of the
circumstances set forth in the affidavit, including the veracity and basis of
knowledge of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in the particular place to be
searched.").

3. As to Shumate's argument the trial court erred in failing to direct a verdict of
acquittal for the distribution charge based on his mere presence: State v. Weston,
367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) ("When reviewing a denial of a
directed verdict, [an appellate court] views the evidence and all reasonable
inferences in the light most favorable to the [S]tate."); State v. Hudson, 277 S.C.
200, 202, 284 S.E.2d 773, 774 (1981) ("Conviction of possession of [illegal drugs]
requires proof of possession–either actual or constructive, coupled with knowledge
of its presence."); id. at 202, 284 S.E.2d at 774-75 ("To prove constructive
possession, the State must show a defendant had dominion and control, or the right
to exercise dominion and control, over the [drugs]. Constructive possession can be
established by circumstantial as well as direct evidence, and possession may be
shared.").

4. As to Shumate's argument the trial court erred in failing to direct a verdict of
acquittal on the distribution charge: State v. Follin, 352 S.C. 235, 258, 573 S.E.2d
812, 824 (Ct. App. 2002) ("A motion for [judgment notwithstanding the verdict
(JNOV)] is a civil trial motion, and thus it is improper for a party to move for
JNOV in a criminal trial."); State v. Kennerly, 331 S.C. 442, 455, 503 S.E.2d 214,
221 (Ct. App. 1998) ("In reviewing a denial of directed verdict, issues not raised to
the trial court in support of the directed verdict motion are not preserved for
appellate review.").

AFFIRMED.

HUFF, SHORT, and KONDUROS, JJ., concur.