State v. Stewart

The State, Respondent, v. Terrance Edward Stewart, Appellant.

Appellate Case No. 2016-002524

No. 2019-UP-209

Court of Appeals of South Carolina

June 5, 2019

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.

Submitted April 1, 2019

Appeal From Laurens County Frank R. Addy, Jr., Circuit Court Judge.

Clarence Rauch Wise, of Greenwood, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, and Senior Assistant Deputy Attorney General John Benjamin Aplin, all of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, for Respondent.

PER CURIAM.

Terrance Edward Stewart was convicted of distribution of heroin trafficking heroin, and possession of oxycodone, for which the trial court sentenced him to a total of twenty-five years imprisonment. On appeal, Stewart argues the trial court erred in (1) failing to suppress evidence seized from his residence when the search warrant was insufficient and the issuing magistrate had no recollection of the oral testimony given to supplement the affidavit; (2) failing to suppress evidence seized from his residence when the magistrate failed to keep records in accordance with section 17-13-171 of the South Carolina Code (2014); (3) failing to charge the jury on the lesser-included offense of possession of heroin with intent to distribute; (4) failing to dismiss the charges pursuant to section 44-53-410 of the South Carolina Code (2017); (5) charging the jury his knowledge could be inferred when a controlled substance was found on property under his control and (6) charging the jury on constructive possession when such a charge eliminated any mens rea of possession. We affirm.

FACTS/PROCEDURAL HISTORY

In June 2015, a Laurens County grand jury indicted Stewart on charges of distribution of heroin, trafficking in heroin, and possession with intent to distribute oxycodone. The indictments all arose from an incident on January 22, 2015.

In April 2015, Stewart appeared in federal district court for a sentencing hearing; he had previously pled guilty to federal drug charges. During the proceeding, the federal court learned Stewart had been arrested for the instant state charges. The federal court heard testimony from Sergeant Matt Veal of the Laurens County Sheriff's Department (the Department), who described the circumstances of Stewart's arrest. The federal court found Stewart did not accept responsibility for his federal charges because he continued to involve himself with drug activity. The federal court therefore varied upward from the recommended sentence of six years and sentenced Stewart to a term of twelve years for his federal charges.

Prior to trial on his state charges, Stewart filed a motion to suppress evidence found during the search of his residence pursuant to a warrant, which he argued failed to establish probable cause. The trial court held an in-camera hearing regarding Stewart's arrest, the issuance of the search warrant, and the subsequent search.

Deputy Steven Sweat of the Department testified he received reports about a series of heroin overdoses in Laurens County. He explained one of the individuals who overdosed--Lawrence Cheatam--told police officers he bought the heroin from a man known as "Cheddar" and described the trailer Cheddar used to deal heroin. Deputy Sweat performed background research on the trailer and Cheddar; he learned Stewart owned the trailer and went by the nickname Cheddar. Cheatam agreed to act as a confidential informant (CI) and participate in a "controlled buy." Officers gave Cheatam five $20 bills whose serial numbers they recorded, equipped his person with a camera, and drove him in an unmarked car to Stewart's trailer. Once there, Cheatam briefly met with Stewart and returned to the car with five bags of heroin. Deputy Sweat then generated an incident report and search warrant and contacted a Laurens County magistrate.

Deputy Sweat explained he met with the magistrate in her home, where he presented the search warrant and supplemented it with sworn oral testimony. He testified he told the magistrate "about the background information, the controlled buy that occurred there, what [they] obtained during the controlled buy, the circumstances involved, [and] the audio and video surveillance of [Cheatam]." On cross-examination, he stated the magistrate did not take notes or record his oral testimony. He clarified his meeting with the magistrate spanned approximately twenty minutes, and he did not tell her anything that was not available in the incident report or video evidence.

At the conclusion of the in-camera hearing, the trial court denied Stewart's motion to suppress. The court found Deputy Sweat's oral testimony was sufficient for probable cause and noted Deputy Sweat did not present the magistrate any undiscoverable information.

Stewart later filed a pretrial motion to dismiss the state charges, arguing the state prosecution was barred on double jeopardy grounds. Stewart asserted the federal court effectively convicted him of the state crimes and punished him by increasing his federal sentence from six years to twelve. The trial court denied Stewart's motion to dismiss, finding the federal court did not convict him of his state charges.

In December 2016, the case proceeded to a two-day jury trial. Regarding the controlled buy operation, Sergeant Veal presented substantially the same testimony as he did to the federal court; Deputy Sweat gave substantially the same testimony as he did in-camera. Sergeant Veal also testified about the search of Stewart's trailer. He explained Stewart cooperated with the officers, who searched his person for contraband; in his pants pockets, they found the $100 Cheatham used to purchase the five bags of heroin. Sergeant Veal explained officers found a large bag of "greyish powder" and "a tinfoil ball of pills" in a box on top of the refrigerator. Officers also uncovered a set of digital scales with grey powder residue on top of the refrigerator with the drugs; in other areas of the trailer, they found a pistol and several thousand dollars in cash.

Shana Sorrells testified as an expert in forensic toxicology and drug analysis. Sorrells explained the five bags of heroin Stewart sold to Cheatham weighed approximately 0.38 grams altogether. She stated the bag of grey powder officers found on top of the refrigerator contained a mixture of heroin and fentanyl and weighed 23.83 grams. She also stated she received and tested fifty-six oxycodone pills.

During a jury charge conference, Stewart raised concerns regarding the definition of constructive possession, the trial court's proposed charge on inferences, and a charge on possession with intent to distribute as a lesser-included offense of trafficking. The trial court overruled his objections and instructed the jury as follows: "To prove possession, ladies and gentlemen, the State must prove beyond a reasonable doubt [Stewart] had knowledge of, power over, and the intent to control the disposition or use of the drugs involved. Possession may be either actual or constructive." The trial court defined constructive possession as "dominion and control over either the drugs [themselves] or the property upon which the drugs were found." Regarding facts and inferences, the trial court stated, "[Stewart's] knowledge and possession may be inferred when a substance is found on the property under [his] control. However, this inference is simply an evidentiary fact to be taken into consideration by you along with the other evidence and to be given the weight you think it deserves."

The jury found Stewart guilty of all charges, and the trial court sentenced him to concurrent terms of twenty-five years imprisonment on the trafficking in heroin charge, ten years on the distribution of heroin charge, and five years on the possession of oxycodone charge. This appeal followed.

STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only, and is bound by the trial court's factual findings unless those findings are clearly erroneous. State v. Edwards, 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009). On review, this court is limited to determining whether the trial court abused its discretion. Id. An abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law. State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012). The appellate court "does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence." Edwards, 384 S.C. at 508, 682 S.E.2d at 822.

LAW/ANALYSIS

I. Search Warrants

First, Stewart argues there was no basis for the trial court to find Judge Tucker made an independent determination that probable cause existed before signing the search warrant. Stewart contends that because magistrate had no independent recollection and did not take notes or record Deputy Sweat's oral testimony, no probable cause could be established, and the trial court should have suppressed the fruits of the search. We disagree.

An appellate court reviewing the decision to issue a search warrant should decide whether the magistrate had a substantial basis for concluding probable cause existed. State v. King, 349 S.C. 142, 149, 561 S.E.2d 640 643 (Ct. App. 2002). "The magistrate should make a probable cause determination based on all of the information available to the magistrate when the warrant was issued. In determining the validity of the warrant, a reviewing court may consider only information brought to the magistrate's attention." State v....