/opinions/HTMLFiles/SC/25687.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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The State, Respondent,

v.

Roger Dale Cobb, Petitioner.

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ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

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Appeal From Pickens County
Henry F. Floyd, Circuit Court Judge

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Opinion No. 25687
Heard June 11, 2003 - Filed July 28, 2003

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REVERSED AND REMANDED

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Assistant Appellate Defender Eleanor Duffy Cleary and Assistant Appellate Defender Robert M. Dudek, of S.C. Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Norman Mark Rapoport, of Columbia; and Solicitor Robert M. Ariail, of Greenville for Respondent.

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JUSTICE PLEICONES: We granted certiorari to review a decision of the Court of Appeals holding that the circuit court properly refused to sentence Roger Dale Cobb (petitioner) under the accommodation statute [1] . State v. Cobb, 349 S.C. 126, 561 S.E.2d 631(Ct. App. 2002). We reverse and remand.

Petitioner was indicted for: distribution of marijuana to a person under 18 years of age, distribution of marijuana, second degree sexual exploitation of a minor, and possession of marijuana with intent to distribute. The jury found petitioner not guilty of distribution of marijuana to a person under 18 years of age; guilty of distribution of marijuana; and guilty of sexual exploitation of a minor. Petitioner was found not guilty of possession with intent to distribute, but guilty of the lesser-included offense of possession of marijuana. Petitioner received a 20 year sentence for distribution [2] , a consecutive five year sentence for exploitation of a minor, and a concurrent one year sentence for possession.

Petitioner appealed the trial judges refusal to sentence petitioner on the distribution charge under the accommodation statute, and the Court of Appeals affirmed his sentence. State v. Cobb, supra. We granted petitioners petition for writ of certiorari to review this decision, and now reverse and remand to the circuit court.

ISSUE

Did the Court of Appeals err in finding that the trial court properly refused to consider the distribution charge as an accommodation and therefore mitigate petitioners sentence?

DISCUSSION

South Carolina Code Ann. 44-53-460 (2002) allows a person who is found guilty of distributing certain controlled substances, such as marijuana, to have a hearing and

if the convicted person establishes by clear and convincing evidence that he delivered or possessed with intent to deliver a controlled substanceonly as an accommodation to another individual and not with intent to profit thereby nor to induce the recipientof the controlledsubstance to use or become addicted upon the substance, the court shall sentence the person as if he had been convicted of [simple possession].

Petitioner, an adult, drove victim, a sixteen year old minor, and her girlfriend (girlfriend), a seventeen year old minor, to his home at victims request, because she wanted to get drunk. When they got to petitioners home, petitioner did not offer victim marijuana, but victim asked if she could smoke some of the petitioners marijuana. Victim testified that petitioner did not force victim to smoke the marijuana. Later that evening, victim and girlfriend began making out and petitioner took a picture of the girls having sex with each other.

The next day, police took victim into custody because she was a runaway, and the victim recounted the events of the previous night to the police. The police obtained a search warrant for petitioners home and found a tin can with four ounces of marijuana in it, as well as the photo of the nude girls.

During the accommodation hearing [3] , the trial judge held that this event was not an accommodation distribution because petitioner profited by satisfying his prurient interests. The Court of Appeals affirmed the trial courts decision holding this was not an accommodation distribution because [petitioner] benefited from his furnishing of the marijuana to the victim because he watched the girls undress and engage in a sexual act. [Petitioner] also used the opportunity to take [a] naked picture[] of the girls. State v. Cobb, supra at 128, 561 S.E.2d at 633. We disagree with the Court of Appeals that the phrase intent to profit as used in the accommodation statute is tantamount to benefit.

The General Assemblys use of the phrase intent to profit clearly demonstrates it was distinguishing transactions that are commercial in nature wherein the defendant intends to profit in a material sense, from those of a more personal nature [4] . See e.g., State v. McNabb, 241 N.W.2d 32, 35 (Iowa 1976)(defining profit in Iowas accommodation statute as the excess of returns over expenditures in a given transaction or series of transactions); Barlow v. Commonwealth, 494 S.E.2d 901, 905 (Ct. App. Va. 1998)(defining profit as any commercial transaction in which there is consideration involved). We hold that intent to profit in the statute does not mean the distributor merely received a benefit. Instead the statute requires profit in a commercial sense or a quid pro quo, as where the marijuana is used as a medium of exchange. If intent to profit as used in the statute means benefit as the Court of Appeals implies, the statute would be eviscerated as benefit has a broader meaning than intent to profit and would arguably apply in any situation.

In the case at hand, the victim testified that petitioner did not offer the marijuana to her, but rather that she asked if she could smoke it. The victim also testified that she did not pay petitioner for the marijuana nor did she do anything in return for its provision. The victim testified that her girlfriend, initiated the kissing, and that both victim and girlfriend initiated sex, not petitioner. The situation presented in this case is a classic accommodation sale. We note that there could be situations when sex is involved in a commercial sense, and thus a profit would be realized. That does not apply here because there was no agreement that the drugs were in exchange for the girls having sex or for petitioner taking pictures of them. Moreover, there is no evidence that the pictures were intended for commercial use by petitioner.

The petitioners actions, while reprehensible, fit clearly within the General Assemblys definition of accommodation.

CONCLUSION

We reverse the decision of the Court of Appeals. There is no evidence to support the trial courts decision not to sentence petitioner under the accommodation statute. We remand the case to the circuit court to sentence petitioner under the accommodation statute.

REVERSED AND REMANDED.

MOORE and WALLER, JJ., concur. BURNETT, J., dissenting in a separate opinion in which TOAL, C.J., concurs.

JUSTICE BURNETT: I dissent. The majority narrowly defines intent to profit as provided in S.C. Code Ann. 44-53-460 (2002) as a net commercial gain. The majority overlooks the factual differences which may make a distribution an accommodation in one instance but not in another.

First, in my opinion, the majoritys limitation of intent to profit to the commercial setting defeats legislative intent. The majoritys citation to McNabb defining profit as the excess of returns over expenditures dismisses other ways drug dealers may profit. See Walker v. Commonwealth, Case No. 2974-01-4 (Va. Ct. App. Filed March 4, 2003) available at 2003 WL 722239 (no accommodation where man provided undercover detectives with cocaine in hopes of sharing the drugs); Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901 (Va. Ct. App. 1998) (denying accommodation charge where heroin dealer sold drugs at costs).

The majority limits the definition of intent to profit to either a benefit of a personal nature or a profit in a commercial, material sense. Our task as a Court is not to divine the metaphysical distinction between those two choices, but merely to give effect to the intent of the legislature. State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511, 515 (1993).

The intent of the Legislature in enacting 44-53-460 was to differentiate between suppliers of drugs who, while committing an illegal act, are different from dealers who supply a drug in exchange for a tangible benefit. While I agree with the majority that intent to profit necessarily means something more than the distributor gained some intangible benefit from the exchange, this case illustrates the difficulty of narrowly defining the term. The quid pro quo of a transaction may often be deduced, as in this case, from the historical relationship between the parties.

Second, an attempt to strictly define profit in this statute subverts the Legislatures intent to differentiate between the two types of distributors of illegal drugs.

A specific definition of intent to profit may provide a superficial benefit, but only at the sacrifice of comprehensiveness explicit in the statutory language. It is difficult to determine, and thus define, whether a person who supplies marijuana to another is acting in mere benevolence or with a design to obtain some tangible benefit from the transaction.

This Court would better discern legislative intent by refusing to strictly define the term intent to profit. Instead, we should acknowledge that whether a particular act amounts to an accommodation is a case-specific fact inquiry. As stated above, the quid pro quo or the distributors intent to profit from a transaction may be deduced by the relationship among the parties.

The victims testimony reveals her relationship with Cobb. She regularly visited his house to smoke marijuana provided by him and would allow Cobb to take nude pictures of her. The behavior of Cobb and the victim on the night in question is a continuation of their historical relationship in which the victim received illegal drugs and Cobb satisfied his prurient interests, in exchange.

This evidence establishes Cobb did not deliver the marijuana as a mere accommodation but intended to profit tangibly from the exchange by satisfying his prurient interests. See, e.g., State v. McDaniel, 265 N.W.2d 917, 927 (Iowa 1978) (Uhlenhopp, dissenting).

Accordingly, I would affirm.

TOAL, C.J., concurs.

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