## Facts

- Narcotics officers conducted a “buy-bust” investigation at Gene Kimbrell’s mobile home; Vicki Kimbrell (his ex-wife) was present during parts of the events.
- On March 31, 1986, a confidential informant introduced an undercover officer to Gene, who sold the officer an ounce of cocaine; Vicki was present but did not participate.
- Based on information from that encounter, officers obtained a search warrant and planned a second controlled purchase on April 3 involving cocaine and marijuana.
- During the April 3 meeting, the undercover officer entered the kitchen and saw cocaine and a set of scales in plain view.
- Gene told Vicki, in the officer’s presence, that the cocaine was on the table and that they were going outside, instructing her to “watch it.”
- After Gene and the undercover officer briefly went outside to view marijuana in a truck, they returned inside; Vicki went back into a bedroom and closed the door.
- When the undercover officer signaled officers to enter, Vicki ran from the bedroom yelling that a car had pulled up, then returned to the bedroom and closed the door.
- Officers entered and found Vicki seated on the bed with the butt of a pistol protruding from her pocketbook.
- Vicki was charged with trafficking in cocaine, convicted, and sentenced to twenty-five years’ imprisonment.

## Issues

1. Whether the evidence was sufficient to submit the trafficking charge to the jury on a theory that Vicki knowingly possessed cocaine.
2. Whether exclusion of testimony about Vicki’s ability to comprehend was preserved for appellate review.
3. Whether admission of the pistol found in Vicki’s pocketbook was erroneous.
4. Whether refusal to give a requested jury instruction that “mere presence” at the scene of a crime is insufficient to establish guilt required reversal.

## Decision

- The Supreme Court of South Carolina held the evidence was sufficient to create a jury question on knowing possession and affirmed denial of the directed verdict motion.
- The court held the comprehension-related evidentiary claim was not preserved because the defense failed to make a proffer of the excluded testimony.
- The court found no reversible error in admitting the pistol, including because it was observed during execution of a valid warrant and was relevant as circumstantial evidence of drug-related activity.
- The court reversed the conviction and remanded for a new trial because the trial court refused a properly requested “mere presence” jury instruction.

## Legal Principles

- In trafficking-by-possession cases, the State must prove possession, meaning both the power and intent to control the contraband.
- Evidence may be sufficient to reach the jury where circumstances permit an inference of knowledge and potential control, even if the defendant did not conduct the sale.
- Exclusion-of-evidence claims are not reviewable on appeal absent a proffer showing what the excluded evidence would have been and why its exclusion was prejudicial.
- Items observed by officers while executing a valid search warrant may be admitted when in plain view and relevant to the charged offense.
- When the defendant’s involvement is disputed and the evidence risks conviction based on association or proximity, a requested instruction that “mere presence” is insufficient must be given; failure to do so can be reversible error.

## Conclusion

The court held the State presented enough evidence of knowing possession to submit the trafficking charge to the jury, but reversed and remanded for a new trial because the jury was not instructed, despite request, that mere presence at the scene does not establish guilt.


State v. Kimbrell, 362 S.E.2d 630 (S.C. 1987)