State v. Breda, Unpublished Opinion No. 2012-UP-285

The State, Respondent,

v.Jacob M. Breda, Appellant.

Unpublished Opinion No. 2012-UP-285

THE STATE OF SOUTH CAROLINA In The Court of Appeals

Heard: April 10, 2012

Filed: May 9, 2012

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.

Appeal From Greenville County

Robin B. Stilwell, Circuit Court Judge

REVERSED AND REMANDED

Appellate Defender Tristan M. Shaffer, of Columbia, for Appellant.

Attorney General Alan Wilson, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor W. Walter Wilkins, III, of Greenville, for Respondent.

PER CURIAM: Jacob Mark Breda appeals his conviction for possession with intent to distribute cocaine base, arguing the circuit court erred in denying his motion for a directed verdict because the State failed to present substantial circumstantial evidence of the intent to distribute. We reverse and remand for a new trial.

An appellate court reviews the denial of a directed verdict by viewing the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the State. State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). "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 the case was properly submitted to the jury." Id. at 292-93, 625 S.E.2d at 648. The circuit court may not consider the weight of the evidence. Id. at 292, 625 S.E.2d at 648. However, "when the [circumstantial] evidence presented merely raises a suspicion of guilt," the circuit court should direct a verdict in favor of the accused. State v. Bostick, 392 S.C. 134, 142, 708 S.E.2d 774, 778 (2011) (citing State v. Cherry, 361 S.C. 588, 594, 606 S.E.2d 475, 478 (2004)). A mere suspicion is a belief that is inspired by "facts or circumstances which do not amount to proof." State v. Lollis, 343 S.C. 580, 584, 541 S.E.2d 254, 256 (2001).

The possession of one gram or more of cocaine base is prima facie evidence of an intent to distribute. S.C. Code Ann. § 44-53-375(B) (Supp. 2011). In cases involving less than one gram of cocaine base, the State must present sufficient evidence the accused intended to distribute the cocaine base in his possession. Id. Otherwise, the evidence only supports a charge of simple possession. S.C. Code Ann. § 44-53-375(A) (Supp. 2011). Intent can be proven, and ordinarily is proven, by circumstantial evidence. State v. Tuckness, 257 S.C. 295, 299, 185 S.E.2d 607, 608 (1971).

The facts of State v. James, 362 S.C. 557, 608 S.E.2d 455 (Ct. App. 2004), are strikingly similar to the facts here. In James, the accused was arrested in a high narcotics trafficking area for an open container violation and a search revealed two Ziploc bags: one empty and one containing eight to ten rocks of crack cocaine. Id. at 559, 563, 608 S.E.2d at 456, 458. When the officer discovered the drugs, the accused struggled, broke free, took the bag containing the drugs, and fled. Id. at 559, 608 S.E.2d at 456. The empty bag ultimately tested positive for crack cocaine residue. Id. At trial, the police officer testified dealers usually sell one bag completely before selling from another and that they carry a large number of rocks in a single bag. Id. at 559-60, 608 S.E.2d at 456. He explained users only carry one rock and have "a distinct, unhealthy physical appearance." Id. at 560, 608 S.E.2d at 456. The accused, he said, appeared in good health. Id. Finally, the accused only had $37 on his person. Id. at 565, 608 S.E.2d at 459.

The James court distinguished its facts from State v. Robinson, 344 S.C. 220, 222, 543 S.E.2d 249, 250 (Ct. App. 2001), and State v. Cherry, 348 S.C. 281, 284, 559 S.E.2d 297, 298 (Ct. App. 2001), aff'd in result, 361 S.C. 588, 606 S.E.2d 475 (2004). James, 362 S.C. at 563-65, 608 S.E.2d at 458-59. It put weight on the fact there was no evidence of a drug transaction, as in Robinson, or large amounts of cash, as in Cherry. Id. at 564-65, 608 S.E.2d at 459. Moreover, it found the police officer's testimony as to the amount of rocks speculative because they were never recovered. Id. at 565, 608 S.E.2d at 459. Finally, the James court declined to consider the accused's appearance, reasoning "it could also have raised the inference that he was not a long-term user of crack cocaine." Id. Accordingly, it held the State failed to present substantial circumstantial evidence the accused intended to distribute the drugs in his possession. Id.

Here, evidence exists showing Breda was found in an area of high drug activity, walking away from a residence known for its drug activity. A search incident to Breda's arrest for providing a false address revealed four individually-wrapped rocks of crack cocaine totaling a weight of 0.31 grams. He carried no drug paraphernalia and did not appear high, and no evidence was presented showing he had any money in his possession. Finally, Breda made several statements denying the substance was crack cocaine and also asked law enforcement why he, a white man, would be selling crack cocaine in a predominantly African-American neighborhood.

Cons...