Presented by (2).png

Constructive Possession of Drugs: Jury Charge vs. Directed Verdict

In a recent South Carolina Supreme Court case, State v. Stewart, the Court clarified the proper jury instructions for a drug charge based on possession. In this case, the defendant was charged with trafficking, PWID, and simple possession of drugs. The importance of this case is that it explains what the proper jury charge should be for any possession case.


The trial judge instructed the jury that the State must prove beyond a reasonable doubt that the defendant had the knowledge, power, and intent over the drugs. And the court defined constructive possession as dominion and control over the drugs or the property where the drugs were located. The Court held the second part, discussing the property, improper for a jury instruction because it leaves out knowledge and intent:



The Court now holds that the proper jury charge for "actual" and "constructive" possession:

First, the State must prove the defendant had the right and power to control the disposition or use of the drugs. For actual possession cases, the State may meet this burden by proving the defendant had actual physical custody of the drugs. For constructive possession cases, the State must prove by other evidence the defendant had the right and power to exercise control over the drugs. Second, the State must prove the defendant had knowledge of the drugs and the intent to control the disposition or use of the drugs.

The Court also held that juries should not be instructed on the inference of knowledge or possession:

As the Court held, the State may still argue that the jury can infer the defendant had knowledge of drugs based on his possession; but the court should not instruct the jury as to that.

In sum: The State must prove beyond a reasonable doubt both possession of the drugs and knowledge/intent. In a constructive possession case, the trial court should not instruct the jury to infer knowledge based on the drugs being on the defendant's property...and likely shouldn't include "property" when defining constructive possession.