Full Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals The State, Respondent, v. Jesse Sebastian Broughton, Appellant. Appellate Case No. 2025-000621 Appeal From Colleton County Marvin H. Dukes, III, Circuit Court Judge Unpublished Opinion No. 2026-UP-466 Submitted October 22, 2026 – Filed November 4, 2026 AFFIRMED Appellate Defender Sarah Elizabeth Shipe, of Columbia, for Appellant. Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General Mark Reynolds Farthing, both of Columbia, for Respondent. PER CURIAM: Jesse Sebastian Broughton appeals his conviction for possession with intent to distribute marijuana and sentence of five years' imprisonment, suspended upon the service of two years' imprisonment and three years' probation. On appeal, Broughton argues (1) the trial court erred in instructing the jury that possession of more than one ounce of marijuana creates a permissive inference of intent to distribute because the instruction constituted an unconstitutional comment on the facts and (2) pursuant to State v. Orr, 1 he may challenge the instruction for the first time on appeal. We affirm pursuant to Rule 220(b), SCACR. We hold these issues are not preserved for appellate review because Broughton did not object to the instruction as an unconstitutional comment on the facts. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003) ("In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial [court]."); State v. Daniels, 401 S.C. 251, 255, 737 S.E.2d 473, 475 (2012) ("It is axiomatic that an objection to a jury charge may not be raised for the first time on appeal."). Although Broughton relies on Orr to argue no contemporaneous objection was required, the instruction here left the matter of intent for the jury to determine rather than removing a disputed factual issue from its consideration. See Orr, 128 S.C. at 279-81, 122 S.E. at 771-72 (excusing the failure to object when the trial court incorrectly instructed the jury that the defendant admitted to killing the victim and that it need not determine who committed the homicide). Moreover, subsequent supreme court precedent requires preservation of a constitutional challenge to a jury instruction as a charge on the facts. See State v. Holland, 261 S.C. 488, 503, 201 S.E.2d 118, 125-26 (1973) (holding a constitutional challenge to a jury instruction for being a charge on the facts could not be raised for the first time on appeal). AFFIRMED.2 THOMAS, KONDUROS, and CURTIS, JJ., concur. 1 128 S.C. 279, 280, 122 S.E. 771, 771 (1924) ("It is said . . . that, if [the trial court] misstated the issues, it was the duty of the defendant to call the attention of the court to it, and, not having done so, he cannot now complain. That is a rule of court and must give way to the constitutional prohibition as to a charge on the facts."). 2 We decide this case without oral argument pursuant to Rule 215, SCACR.