STATE OF SOUTH CAROLINA
In the Supreme Court

APPEAL FROM EDGEFIELD COUNTY
The Honorable William P. Keesley, Circuit Court Judge

THE STATE OF SOUTH CAROLINA,.......................................................... Respondent,

v.

RAPHAEL HERNANDEZ, HONORIO GUERRERO,.................................. Petitioners.

AND ALFREDO AVILA-ARJONA,

BRIEF OF RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................................................................................................ 1

TABLE OF AUTHORITIES ………………….........................................................................................………………………………………….. 2

STATEMENT OF ISSUE ON APPEAL................................................................................................................................................................... 3

STATEMENT OF THE CASE................................................................................................................................................................................... 4

ARGUMENT................................................................................................................................................................................................................ 5

CONCLUSION ……………………………….........................................................................................………………………………………… 12

TABLE OF AUTHORITIES

Cases:

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ………………………………………………………………………………………………  7

State v. Attardo, 263 S.C. 546, 550, 211 S.E.2d 868, 869 (1975)………………………………..…………………………………..……….  6

State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004)…..……………………………………………………………………………………..  6

State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989)……………………………………………………………………………….….…...  7

State v. Frazier, 375 S.C. 575, 654 S.E.2d 280 (Ct. App. 2007)……………………………………………………………………………….  7

State v. Mollison, 319 S.C. 41, 459 S.E.2d 88 (Ct. App. 1995) ……………………………………………………………………..……..…   10

State v. Porterfield, 317 S.C. 360, 454 S.E.2d 351 (Ct. App. 1995) ………………………………………………………………………...… 6

Statutes:

S.C. Code Ann. § 44-53-370 ……………………………………………………………………………………………………………………… 6

STATEMENT OF ISSUE ON APPEAL

Did the lower court properly deny Appellants’ directed verdict motions where there was no direct evidence of guilty knowledge, but the State presented substantial circumstantial evidence going beyond mere suspicion?

STATEMENT OF THE CASE

Appellants were indicted in March of 2004 for trafficking in marijuana, between one-hundred and two-thousand pounds.  (See ROA p. 990-995).  After a trial beginning June 28, 2004, through July 6, 2004, a jury found Appellants guilty, following which the Honorable William P. Keesley imposed twenty-five (25) year sentences (See ROA p. 959 – 969).  Appellants argued before the South Carolina Court of Appeals that the trial court erred in denying their directed verdict motions because the State’s evidence proved no guilty knowledge and nothing more than mere presence.  The Court of Appeal affirmed the convictions, see State v. Hernandez, 2007-UP-183 (S.C. Ct. App. filed April 18, 2007), and denied rehearing on June 28, 2007 (See Appendix, p. 1-10).  Petitioners requested a Writ of Certiorari from this Court on July 30, 2007, and the Writ was granted by Order dated April 3, 2008.  

ARGUMENT

Overview of the Facts

United States customs agents discovered approximately 900 pounds of marijuana hidden inside items of furniture on a tractor-trailer as it attempted to cross the border from Mexico into the United States.  (ROA p. 249-253; p. 757, lines 1-2).  There were a variety of different wooden furniture items, but the marijuana was concealed only within items described as “chimneys.”  (ROA p. 255, 12-18).  All of the chimneys were loaded at the very rear of the vehicle.  (ROA p. 259, lines 18-19; p. 463, lines 17-21).  Agents commandeered the tractor-trailer and law enforcement made a “controlled delivery” to the “La Tienda Deleon” (“Tienda”) Mexican grocery store located in Trenton, South Carolina on May 18, 2002.[1]  (See ROA. p. 281-285).  There was a heavy rainstorm ongoing that day in Trenton.  (ROA, p. 356, lines 13-16).  Upon arrival at the Tienda, a green Thunderbird was observed in the parking lot.  (ROA p. 719, lines 2-6).  The tractor-trailer’s seal was broken, and Defendant Deleon signed for receipt of the cargo.  (ROA, p. 365-67).  Thereafter, two Hispanic males assisted Mr. Deleon with unloading.  (ROA, p. 366-67).  However, only a portion of the cargo, including one chimney containing marijuana, was unloaded at the Tienda.  (ROA p. 366, lines 11-22).  The rest of the cargo remained on the tractor-trailer, and the driver and accompanying undercover customs agent were instructed to drive over to the nearby “Billy’s Superstore” (“Billy’s”) and wait there.  (ROA p. 368, line 19 – p. 369, line 12). 

At Billy’s, the driver backed the tractor-trailer up to a loading dock and sat and waited.  (ROA p.370, lines 3-22).  Eventually the Thunderbird from the Tienda drove by Billy’s, then returned a few minutes later with a Ryder moving truck.  (ROA p. 370, line 22 – 371, line 5).  Both vehicles pulled into the Billy’s parking lot and blocked-in the tractor-trailer, such that it was unable to move in any direction.  (ROA p. 371, lines 7-13; p. 384, lines 13-16).  The Thunderbird’s passenger unsuccessfully attempted to enter the cab of the tractor-trailer, while the driver went to talk to the occupants of the Ryder truck.  (ROA p. 371, lines 13-19; p. 372, line 24 – p. 373, line 2).  The agent recognized at least one of the Thunderbird’s occupants as one of the men who helped unload the furniture at the Tienda.  (ROA p. 366, lines 4-8; p. 386, lines 1-5).  SLED surveillance officers became concerned about a possible hijacking of the tractor-trailer at this point.  (ROA. p. 723, lines 6-11).

Eventually, after it was clear the men would not be permitted entry into the tractor-trailer’s cab, the Thunderbird’s passenger instructed the tractor-trailer to follow the Thunderbird and the Ryder truck to a more desolate and wooded area.  (ROA p. 377 –78; p. 385, lines 2-21).  Due to the heavy rain and muddy conditions, both trucks ultimately became stuck in red clay and were completely disabled.  (ROA p. 378, line19 – p. 381, line 10).  Shortly thereafter, agents decided to end the undercover operation, and it was discovered that the occupants of the Thunderbird, the only non-disabled vehicle, had fled the area and were never subsequently located.  (ROA p. 410, line 9 - p. 411, line 6; see ROA p. 622-626).  The Thunderbird was later found abandoned in a Trenton parking lot.  (ROA p. 637, lines 15-25).  Meanwhile, the occupants of the Ryder truck, identified as Appellants, were arrested.  (ROA p. 378, line 7 – p. 379, line 5; p. 468, line 6 – p. 469, line 16).  Inside the Ryder truck, officers found paperwork indicating that Appellant Guerrero had rented the truck the day before in Rock Hill.  (ROA p. 471, lines 13-25).  Officers also found a receipt from the local Crossroads Motel for the night before.  (ROA p. 472, lines 1-16).  The cargo portion of the Ryder truck was found to be completely empty.  (ROA p. 470, lines 1-5; p. 506, lines 2-4). 

The lower court properly denied Appellants’ directed verdict motions because although there was no direct evidence of guilty knowledge, the State presented substantial circumstantial evidence going beyond mere suspicion.

In order to be convicted of “trafficking in marijuana,” it must be proven beyond a reasonable doubt that a person “knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of one hundred pounds or more, but less than two thousand pounds” of marijuana.  S.C. Code Ann. § 44-53-370(e)(1)(b) (emphasis added).  In a drug prosecution, the “knowledge” element is not usually susceptible of direct proof, but instead may be proved circumstantially.  State v. Porterfield, 317 S.C. 360, 363, 454 S.E.2d 351, 353 (Ct. App. 1995) (citing State v. Attardo, 263 S.C. 546, 211 S.E.2d 868 (1975)).  Knowledge can be proved through conduct from which an inference may be drawn that the accused knew of the existence of the prohibited substance.  State v. Attardo, 263 S.C. 546, 550, 211 S.E.2d 868, 869 (1975) (citations omitted).  A defendant’s knowledge is normally a question for the jury.  Porterfield, supra, at 363, 454 S.E.2d at 353 (citing Attardo, supra). 

“A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged.”  State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004) (citations omitted).  When a motion for directed verdict is made in a criminal case where the State relies exclusively on circumstantial evidence, the lower court is concerned with the existence or non-existence of evidence, not with its weight.  State v. Edwards, 298 S.C. 272, 275, 379 S.E.2d 888, 889 (1989) (citation omitted).  The lower court should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty.  Id.  “However, a trial judge is not required to find that the evidence infers guilt to the exclusion of any other reasonable hypothesis.”  State v. Frazier, 375 S.C. 575, 581, 654 S.E.2d 280, 283 (Ct. App. 2007) (citing State v. Cherry, supra).  As the United States Supreme Court has stated, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”  Desert Palace, Inc. v. Costa,539 U.S. 90, 100 (2003) (citation omitted).

Viewed in the light most favorable to the State, substantial circumstantial evidence supported that Appellants had knowledge of the illegal drugs.  First, it is undisputed that the two Thunderbird occupants were involved in the drug conspiracy and knew of the existence of the marijuana.  (See Brief of Petitioners, page 5; see ROA p. 410, line 9 - p. 411, line 6).  Appellants made a special trip from North Carolina for the purpose of assisting these two individuals with the unloading of this shipment.  (See ROA p. 235, lines 18-22; p. 503, line 19 – p. 504, line 3).  It is nonsensical to think that the Thunderbird occupants enlisted the assistance of random strangers from out of state.  Instead, the only reasonable inference is that Appellants and the Thunderbird occupants knew each other and had advance discussions regarding this transaction.  Appellants traveled to Trenton the night before, booked a hotel room, and rented a truck capable of holding the all of the furniture not unloaded at the Tienda.  (See ROA p. 384, lines 17-22; p. 470, lines 1-5; p. 506, lines 2-4).  This indicates a level of planning that necessarily involved prior discussions regarding the size of the load.  Clearly, the furniture, including the nearly two million dollars’ worth of marijuana, was intended to be loaded into the Ryder truck, controlled by Appellants, since the load would obviously not fit in the Thunderbird.   

Additionally, the testimony indicated that the green Thunderbird from the Tienda drove past Billy’s before returning with Appellants, as if “scoping out” the scene to be sure it was safe before bringing Appellants and the Ryder truck.  (See ROA p. 370, line 22- p. 371, line 5).  Upon arriving at Billy’s, after Appellants helped block-in the tractor-trailer with their truck, one of the occupants of the Thunderbird conversed with Appellants.  (ROA p. 371-373; p. 384, lines 13-16; p. 373, lines 2-3; p. 424, line 10 – p. 425, line 7).  A jury would reasonably infer, using simple common sense, that they were discussing the imminent transfer of the shipment.  The testimony further indicated that the unpaved road where the transfer was to take place was in an especially desolate and wooded area, with no houses or people nearby.  Since it is obvious that the shipment could have been much more easily transferred into the Ryder truck – either at the Tienda, or at Billy’s - the only reasonable inference was that they wanted to unload in a less visible location because they knew that the furniture contained illegal drugs and they wanted less risk of detection.  It is especially telling that, even in the pouring rain, they chose to attempt the transfer on an unpaved road rather than in either the Tienda parking lot or the Billy’s unloading area.    

The marijuana in this case was valued at approximately two million dollars, “street value.”  (ROA p. 788, line 6).  Testimony from an experienced U.S. Customs Agent indicated that it would be atypical for persons involved in a large-scale drug trafficking conspiracy to allow individuals outside of the “inner circle” of the conspiracy to be permitted exclusive access to millions of dollars’ worth of drugs.  (ROA p. 401, lines 3-15).  In this case, there were three men in the Ryder truck and only two men in the Thunderbird.  It is clear that the drugs were going to be placed in the Ryder truck with the three Appellants.  These facts bolster a very reasonable inference that Appellants were trusted members of an “inner circle” with knowledge of the illegal drugs.

It is, quite simply, unreasonable to suppose that a shipment of illegal drugs worth nearly two million dollars would be set up for placement in the hands of three “clueless” illegal aliens.  It is apparent that the conspiracy involved in this case was quite complex – first, the drugs were carefully compressed, inside carbon paper, and then concealed in parts of mundane-looking cheap furniture.  (See ROA p. 456-459).  The scent was undetectable.  (See ROA, p. 260, lines 4-10).  The marijuana was secreted only within the “chimneys,” and was further obscured within a larger shipment of various other types of furniture.  However, the way it was loaded in the truck, with all of the chimneys at the rear of the truck, indicated that the marijuana was available for easy unloading.  This particular arrangement ensured that the conspirator-receivers in the United States need not actually break open the chimneys to check for the drugs; instead, they could assume that if the tractor-trailer’s seal was in place, and the chimneys were at the back of the truck, that everything was in order.  A former undercover narcotics investigator testified that drugs from Mexico are “a lot of times” hidden inside other merchandise and shipped to the United States via carrier.  (ROA p. 824, lines 12-17).  A U.S. Customs Inspector corroborated that wooden furniture is often used to conceal drugs for shipment from Mexico into the United States.  (ROA p. 248, lines 6-16).  Taken together, these facts support that the persons involved in this drug conspiracy were not amateurs and were “in the business” of drug trafficking. 

Common sense dictates that such seasoned drug traffickers would not permit such a valuable shipment to be placed in the custody of persons unaware of the existence of illegal drugs – the risk would simply be too great.  This is because persons taking custody of nearly two million dollars’ worth of drugs would need to use extreme caution in performing even the simplest of tasks – for example, with driving the truck – both for prevention of an accident in which the drugs might be destroyed or exposed, and to avoid being stopped by law enforcement for speeding or other violations of traffic laws.  Furthermore, it is unreasonable to think that such an amount of illegal drugs would be left with three uninformed or mistrusted persons who could decide to rob the Thunderbird’s two occupants and drive off with the cargo.  All of these indirect, yet very tangible, factors support that substantial circumstantial evidence supported Appellants’ guilty knowledge. 

To say that substantial circumstantial evidence exists against these three Appellants is not necessarily to say that the law enforcement investigation could not have been more thorough, or that it would not have been much more desirable to catch and prosecute all of the conspirators.  However, what is relevant for purposes of the motions for directed verdict in this case is the existence of evidence, direct or circumstantial, to support guilty knowledge.  See State v. Mollison, 319 S.C. 41, 45-46, 459 S.E.2d 88, 91-92 (Ct. App. 1995) (substantial circumstantial evidence of knowledge of drugs supported denial of directed verdict motion).  Were the State required to show direct proof that an accused drug trafficker actually saw or touched the drugs in order to prove knowledge of them, international drug conspirators could deliberately structure their transactions such that a case could never be proven against conspirators on the receiving end.  In this case, considering the cumulative effect of each piece of circumstantial evidence, and considering the reasonable inferences that a jury could draw from the chain of circumstantial facts - using its collective common sense - the lower court properly denied Appellant’s directed verdict motions.

CONCLUSION

For the reasons stated above, this Court should affirm the lower court’s denial of Appellant’s directed verdict motions, and uphold Appellants’ convictions and sentences. 

September ____, 2008

[1] Appellants were tried with co-defendant Fredy Deleon, owner of the Tienda.  (ROA p. 5-6).