In the Interest of Kaleem S.

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

In the Interest of Kaleem S., a juvenile
under the age of eighteen, Appellant.

Appeal From Sumter County

 William Jeffrey Young, Family Court Judge

Unpublished Opinion No. 2010-UP-461

Submitted October 1, 2010 – Filed October
25, 2010  

REVERSED

Appellate Defender Robert Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia;
and Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:  Kaleem S. appeals his conviction of possession
with intent to distribute marijuana (PWID) and PWID within one-half mile of a school,
arguing the family court erred in denying his motion for a directed verdict.  We
reverse.[1]

FACTS

Kaleem S. was
arrested, along with four co-defendants, while leaving a high school football
game.  A police officer stopped the vehicle Kaleem S. and his co-defendants
occupied after receiving a tip that the vehicle was involved in suspicious
activity.  After searching the vehicle, the officer found two bags of marijuana
in the passenger's backdoor armrest and under the driver's side rear seat.   

At
trial, the arresting officer testified regarding the incident.  He stated he
searched the vehicle after removing all of the subjects and found "on the
passenger's side in the backdoor armrest[,] . . . a plastic bag containing
twenty small plastic bags of marijuana, and then, also located under the driver's
side, the rear seat, . . . a plastic bag containing marijuana."  The
officer arrested all of the individuals for PWID and PWID within one-half a
mile of a school because "the marijuana was distributed throughout the
vehicle and was [not] in one centralized location where we could determine
exactly whose marijuana it was.  And . . . nobody was claiming any kind of
ownership of the marijuana."  The officer acknowledged he did not know who
was driving the vehicle, nor did he remember where the defendants were sitting
in the vehicle at the time of the stop.  The arresting officer confirmed that
no statements were taken from the individuals at the time of their arrests.

After
the State closed its case, Kaleem S. moved for a directed verdict, arguing the
State failed to present evidence proving Kaleem S. had constructive possession
of the marijuana.  The family court denied the motion, ruling that the State
presented sufficient evidence to move forward. The family court explained, "[The
State] . . . placed all five of [the defendants] in the vehicle, [and] the
drugs are in two different locations."  The family court ultimately found
Kaleem S. and his co-defendants guilty of PWID and PWID within one-half mile of
a school and sentenced them to ninety days' detention with the Department of
Juvenile Justice.  This appeal followed.

LAW/ANALYSIS

Kaleem
S. argues the family court erred in denying his motion for a directed verdict
because the State failed to prove he had constructive possession of the
marijuana.  We agree.  

"A
defendant is entitled to a directed verdict when the State fails to present
evidence of the offense charged."  State v. Heath, 370 S.C. 326,
329, 635 S.E.2d 18, 19 (2006).  "If there is any direct evidence or
substantial circumstantial evidence reasonably tending to prove the guilt of
the accused, [the appellate court] must find the case was properly submitted to
the jury."  State v. Stanley, 365
S.C. 24, 42, 615 S.E.2d 455, 464 (Ct. App. 2005). 

"Conviction
of possession of marijuana requires proof of possession-either actual or
constructive, coupled with knowledge of its presence."  State v. Brown,
267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976).   A person is guilty of
constructive possession of an illegal substance if the State proves "the
defendant had dominion and control, or the right to exercise dominion and
control over the [illegal substance]."  Heath, 370 S.C. at
329, 635 S.E.2d at 19 (quotation marks and citation omitted).

Here, the State did
not present substantial circumstantial evidence proving Kaleem S. had
constructive possession of the marijuana.  Kaleem S. was not the owner of the
vehicle, and the State failed to present evidence demonstrating Kaleem S.
controlled the vehicle and its contents.  See Id. at 329-30, 635
S.E.2d at 19 ("The defendant's knowledge and possession may be inferred if
the substance was found on premises under his control.").  In fact, the
arresting officer testified he did not know who was driving the vehicle or
where the defendants were sitting in the vehicle.  See Brown, 267
S.C. at 315, 227 S.E.2d at 676 (granting a defendant's motion for a directed
verdict and finding insufficient evidence to prove defendant's dominion and
control of marijuana when the defendant was passenger in vehicle, driver had an
undetermined sum of cash, defendant was nervous and had no identification,
there was smell of marijuana in vehicle, and large opaque bag containing
marijuana was on the rear floorboard).

In
addition, the State failed to present evidence that Kaleem S. had knowledge of
the marijuana.  The officer testified the marijuana was located in two
locations in the back of the vehicle.  However, the officer admitted he did not
remember where Kaleem S. was sitting at the time of the stop.  The State's
argument that Kaleem S. had knowledge of the marijuana because the bags were in
plain view in the passenger's side backdoor armrest is unsupported by the
record.  In fact, the officer testified he discovered the bags of marijuana in a backdoor armrest and under a rear seat.  Moreover, even if the bags
containing the marijuana were in plain view, the State never established
whether the marijuana was visible through the bags.  

Accordingly, we
hold the family court erred in denying Kaleem S.'s motion for a directed
verdict because the State only presented evidence proving that Kaleem S. was
present in the vehicle, not that he had dominion and control of the marijuana.  See State v. Wise, 272 S.C. 384, 387, 252 S.E.2d 294, 296 (1979) ("Mere
proof of presence of a defendant in a vehicle containing a controlled substance
has been held insufficient in itself to convict him of the crime of possession.").  

For the foregoing
reasons, the decision of the family court is 

REVERSED.

WILLIAMS, PIEPER, and KONDUROS, JJ., concur.

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