Background
Jesse Sebastian Broughton was convicted of possession with intent to distribute marijuana. The circuit court sentenced him to five years, suspended after two years of imprisonment followed by three years of probation. At trial, the court instructed the jury that possession of more than one ounce of marijuana permits an inference that the possessor intended to distribute it.
Broughton did not object that the instruction amounted to an unconstitutional judicial comment on the facts. On appeal, however, he argued that the charge crossed South Carolina’s constitutional boundary by influencing the jury’s factual determination of intent. He relied on the Supreme Court’s 1924 decision in State v. Orr, which entertained a challenge despite the absence of a contemporaneous objection when a trial judge incorrectly told jurors that a defendant had admitted the killing and that identity was no longer disputed.
The appeal therefore turned on preservation rather than on whether the statutory inference was substantively correct. Broughton contended that a constitutional prohibition on charging the facts should override the ordinary rule requiring trial counsel to object before the jury retires. The State responded that the instruction left the ultimate factual question with the jury and that later cases require constitutional jury-charge objections to be preserved.
That distinction also shaped the limited nature of the ruling. The panel did not approve the wording as a model charge and did not decide whether a properly preserved challenge would succeed. Its task was narrower: determine whether the asserted ground had been presented to the trial judge and, if not, whether Orr excused that omission.
The Court’s Holding
The Court of Appeals affirmed under Rule 220(b), SCACR, holding that neither issue was preserved. South Carolina’s settled preservation rule requires an issue to be raised to and ruled on by the trial court. That principle applies to jury instructions: a litigant ordinarily may not attack a charge for the first time on appeal.
The court distinguished Orr. There, the trial judge effectively removed a contested factual issue by telling jurors the defendant had admitted the killing. Broughton’s instruction did not direct a factual finding. It described a permissive inference and left the jury free to decide whether the evidence proved intent to distribute. The exceptional reason for bypassing preservation in Orr therefore was absent.
The panel also relied on subsequent Supreme Court authority holding that a constitutional challenge to a jury instruction as a charge on the facts still must be preserved. Because Broughton did not state that ground at trial, the circuit court had no opportunity to correct or clarify the charge, and the appellate court did not reach its constitutionality. The conviction and sentence remained intact without a merits determination on the claimed instructional error.
Preservation doctrine serves a corrective function as well as an appellate-screening function. A specific objection can prompt a revised instruction before deliberations, avoiding the need for retrial and creating a clear record of the judge’s ruling. By waiting until appeal to frame the charge as unconstitutional, Broughton deprived the trial court of that opportunity.
Key Takeaways
- South Carolina counsel must make a contemporaneous, ground-specific objection to a jury instruction, including a constitutional objection that it comments on the facts.
- A permissive inference that leaves the factual decision to jurors differs from an instruction that removes a disputed fact from their consideration.
- State v. Orr does not create a general exception allowing unpreserved constitutional charge challenges on appeal.
- Appellate courts may affirm solely on preservation and never decide whether the challenged instruction was substantively lawful.
Why It Matters
For South Carolina criminal practitioners, the operational lesson is immediate: objections to jury charges should identify both the erroneous language and every legal ground, including the state constitutional prohibition against charging the facts. A generic objection, or silence based on an expectation of automatic constitutional review, risks forfeiting the issue entirely.
The opinion also helps frame the distinction between mandatory factual directions and permissive evidentiary inferences. Trial counsel challenging an inference should explain how the wording could constrain the jury’s independent factfinding, while preserving any statutory and due-process grounds as well. The decision is unpublished and generally lacks precedential value under Rule 268(d)(2), SCACR, but it applies established preservation doctrine in a recurring trial setting.