State v. Brewster

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.

Brian Brewster, Appellant.

Appeal From Horry County

 Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2008-UP-709

Heard November 19, 2008 – Filed December
16, 2008   

AFFIRMED

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

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and
Solicitor J. Gregory Hembree, of Conway, for Respondent.

PER CURIAM: Brian Brewster was tried for and convicted of
possession of marijuana with the intent to distribute (PWID).  He was sentenced
to twelve years imprisonment and fined ten thousand dollars.  Brewster appeals
his conviction and sentence, arguing the circuit court erred in (1) refusing to
suppress evidence of the marijuana he asserts was discovered as the result of
an unconstitutional roadblock, and (2) refusing to charge the jury they could
find Brewster guilty of possession of more than one ounce of marijuana.  We
affirm pursuant to Rule 220(b), SCACR, and the following authorities. 

1. As
to whether the circuit court erred in refusing to suppress evidence of the
marijuana:  Rule 220(c), SCACR (stating the appellate court may affirm upon any
ground appearing in the record); State v. Dupree, 319 S.C. 454, 457, 462
S.E.2d 279, 281 (1995) (“Abandoned property has no protection from either the
search or seizure provisions of the Fourth Amendment.”).[1] 

2. As
to whether the circuit court erred in refusing to charge the jury on possession
of more than one ounce of marijuana: Sheppard v. State, 357 S.C. 646,
665, 594 S.E.2d 462, 472-73 (2004) (holding a trial judge is required to
charge only the current and correct law of South Carolina and a jury charge is correct if it
contains the correct definition of the law when read as a whole); State v.
Elliott, 346 S.C. 603, 606, 552 S.E.2d 727, 728 (2001), overruled on
other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005)
(“The test for determining when an offense is a lesser included offense of
another is whether the greater of the two offenses includes all the elements of
the lesser offense.”); Matthews v. State, 300 S.C. 238, 239, 387 S.E.2d
258, 259 (1990) (“Possession of any amount of marijuana, coupled with
sufficient indicia of intent to distribute, will support a conviction for
possession with intent to distribute.”); State v. Adams, 291 S.C. 132,
135, 352 S.E.2d 483, 485 (1987) (stating simple possession of marijuana is a
lesser included offense of possession with intent to distribute marijuana); see
also State v. Gooch, 297 S.E.2d 599, 602 (N.C. 1982) (finding
possession of more than one ounce is not a lesser included offense of possession
with intent to distribute).

AFFIRMED.

SHORT, THOMAS,
and PIEPER, JJ., concur.

[1] Based on our finding of abandonment, we need
not address the constitutionality of the roadblock.