dissenting:
Lewis. D. Goldsmith was convicted by a South Carolina state jury of six counts— two counts each of possession of marijuana and cocaine, possession with intent to distribute, and conspiracy to distribute. On appeal, the South Carolina Supreme Court vacated the “simple possession” convictions as lesser included offenses and affirmed the convictions on the remaining counts. On this petition for a writ of habeas corpus, Goldsmith would now have us review his convictions again, principally because, he contends, the evidence was insufficient to support the convictions. As he stated in his petition:
The state fail to prove that the Petitioner had any knowledge of the Drugs that was found at another Persons Home, and in looking at the Evidence in light most favorable to the State, there was not evidence that would allow the State to find the Petitioner guilty beyond a reasonable doubt.
Goldsmith has also complained about the jury’s possible consideration of stricken testimony that he contends was prejudicial.
Considering Goldsmith’s first argument, we begin by recognizing that two state courts have reviewed Goldsmith’s convictions for sufficiency of the evidence and that our role is only to assure that South Carolina complied with federal constitutional requirements when convicting Goldsmith. See Jackson v. Virginia, 443 U.S. 307, 322-23, 99 S.Ct. 2781, 2790-91, 61 L.Ed.2d 560 (1979). While the imposition of a sentence in the absence of substantial evidence of criminal conduct would deny Goldsmith due process, I submit that that was not the case here. We must carefully limit our review to the issue of constitutional sufficiency, scrupulously resisting any temptation to substitute our interpretation of the evidence for that of the South Carolina jury. See Wright v. West, — U.S. —, —, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992) (“In Jackson, we emphasized repeatedly the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review.”) (Thomas, J., plurality opinion).
The evidence supporting Goldsmith’s conviction stems from the July 22, 1988, search of Timmy Cooper’s apartment. There is no dispute that state law enforcement officers conducted that search properly. The search was pursuant to a valid warrant, and probable cause to believe illegal activities were occurring within the apartment was established by a “controlled buy” of illegal substances in the apartment earlier that day.
The only people in Cooper’s apartment immediately before the search were Goldsmith and a small child. At the time of the search Goldsmith was found sitting at the kitchen table. In front of him on the table were cocaine powder, drug paraphernalia, rolling papers, and a “tube straw” (explained by the officers to be a straw that had been cut down for use in inhaling cocaine). On the floor, “right beside” the table, were two large bags of marijuana. In addition to the drugs found in front of the defendant, officers seized additional cocaine and marijuana, aluminum foil packages with cocaine in them, scales, a plastic cup with marijuana seeds, a handgun and *705cash. Upon arresting Goldsmith, officers discovered he had $200 in cash hidden in his sock.
In addition to the substantial quantities of drugs and drug-related paraphernalia found, the events surrounding Goldsmith’s arrest provided evidence that he was involved with Cooper. When law enforcement officers arrived before the search in the parking area at Cooper’s apartment dressed in “raid jackets” which identified them as sheriff's deputies, Cooper, who was then outside, ran to the back door of the apartment and “slammed the door back on [the officer’s] arm as [the officer] was trying to go in.” Cooper then ran into the living room where he was restrained. A woman, possibly the mother of the small child, was outside of the apartment when the officers arrived and remained outside during the search and arrests.
The only evidence presented at trial was that of the State. But in support of his petition for a writ of habeas corpus Goldsmith contended:
Petitioners Position is that on the Morning of July 22, 1988, He did stop by the Home of One Timmy Cooper, the CO-Defendant in this Case, However to the best of His Knowledge there was no drugs found out in the Opening that he Could see, that at the time in Question, That the Petitioner was on Parole and that He had called over to the CO-Defendants Home, and made arrangements to barrow the amount of Money that was needed to make His Ends Meet....
(Emphasis added). His contention that he did not see any drugs and was not therefore involved with any drugs is directly contradicted by the testimony of the several officers, all of whom saw cocaine on the table and two large bags of marijuana on the floor.
The critical issue in this case is whether there is sufficient evidence from which a jury could infer that Goldsmith was in possession of the drugs. Even if the jury found he was in possession only of the drugs at and about the table where he was seated, it could permissibly find both possession with intent to distribute and conspiracy. Next to the table and clearly visible were the two bags of marijuana, the smaller of which contained 113.4 grams (several ounces). Possession of one ounce of marijuana establishes a prima facie case under South Carolina law of intent to distribute. See S.C.Code § 44 — 53—370(d)(3) (1988) (amended 1990). While the amount of cocaine on the table at which Goldsmith was seated, .1 gram (1.54 grains), was not by itself sufficient to establish a prima facie case of intent to distribute, see S.C.Code § 44-53-370(d)(3) (possession of ten grains of cocaine establishes a prima facie case of intent to distribute), when drug paraphernalia are present, no particular amount of cocaine is necessary to support a finding of intent to distribute. See State v. Adams, 291 S.C. 132, 352 S.E.2d 483, 485 (1987). In this case, in addition to the drug paraphernalia on the table in front of Goldsmith, scales, packaging, and more cocaine were seized from the apartment. Evidence was also admitted that showed that the officers had made a controlled buy from the apartment earlier.
To find a conspiracy, a jury need not find an explicit agreement, but may infer an agreement from circumstantial evidence and the parties’ conduct. See State v. Oliver, 275 S.C. 79, 267 S.E.2d 529, 530 (1980). The jury could have properly concluded that Cooper was involved in the drug operation, a finding necessary to support a conspiracy conviction. When Cooper recognized that law enforcement officials had arrived at the scene, he ran to the apartment in an effort to exclude them and thereby protect the drug activity inside. From all the circumstantial evidence, a rational jury could, and did, conclude that Goldsmith was involved in a conspiracy.
A finding of possession by Goldsmith therefore remains the crucial element. To establish possession under South Carolina law, the State must show both the power to control the drugs and the intent to control their disposition or use. In this case both may be inferred from the presence of drugs in front of Goldsmith on a table at which only he was sitting. “Because actual knowledge of the presence of a drug is *706strong evidence of intent to control its disposition or use, knowledge may be equated with or substituted for the intent element. Possession may be inferred from the circumstances.” State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630, 631 (1987) (citation omitted). Viewed in a light most favorable to the State, the evidence properly admitted in this case permits the jury to infer that Goldsmith, the only adult in the apartment, was in possession of at least the drugs at the table, if not all the drugs found throughout the apartment.
Rejecting the permissible inferences, the majority opinion has, in my judgment, failed to take the evidence in a light most favorable to the State and has concluded that, “because the trial evidence was constitutionally insufficient to support a finding that Goldsmith had dominion and control over the marijuana or the cocaine” the convictions must be reversed. I respectfully disagree.
Goldsmith’s second argument is that the failure of the judge to order a mistrial in addition to striking the hearsay testimony violated his Sixth Amendment rights. The trial court sustained defendant’s objection to the questionable evidence and curatively instructed the jury. In considering the effect of evidence improperly introduced, we must look at it in context. In this case, the stricken evidence would have added little to the State’s case. Because the evidence was otherwise adequate to support a conviction, I would conclude that the evidence improperly introduced — a single question and answer promptly followed by an objection and a curative instruction — did not deny Goldsmith due process. See Greer v. Miller, 483 U.S. 756, 766, 107 S.Ct. 3102, 3109, 97 L.Ed.2d 618 (1987).
While the case presented against Goldsmith was not an overwhelming one, it was supported by sufficient evidence and did not violate his constitutional rights. I fear that in this case the Court has been led not to a constitutional review under the Fourteenth Amendment, but to a garden variety appellate review of the same issues raised before, and properly disposed of by, the South Carolina Supreme Court. See State v. Goldsmith, 301 S.C. 463, 392 S.E.2d 787 (1990).
Because I would affirm the district court’s denial of the writ, I respectfully dissent.