State v. Moore

• Decision Date: 18 May 2007
• Docket Number: No. 4247.,4247.
• Citation: 649 S.E.2d 84
• Parties: The STATE, Respondent, v. Larry Gene MOORE, Appellant.
• Court: South Carolina Court of Appeals

649 S.E.2d 84

The STATE, Respondent, v. Larry Gene MOORE, Appellant.

No. 4247.

Court of Appeals of South Carolina.

Submitted May 1, 2007.

Decided May 18, 2007.

Rehearing Denied August 24, 2007.

Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

ANDERSON, J.

Larry Gene Moore appeals his conviction of armed robbery. He argues the evidence does not show he used force or intimidation in his asportation of stolen property. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

On January 17, 2004, Mark Hayes, a loss prevention officer at a Wal-Mart store in Spartanburg, was on duty when he observed a shopper, Larry Gene Moore, exhibiting suspicious behavior. Only minutes earlier, Hayes noticed the customer had placed several items of merchandise in his shopping cart, and thus became alarmed when he realized Moore's cart was presently vacuous. Hayes witnessed Moore pick up a package of over-the-counter medication from the shelf, place it inside his jacket, and begin walking toward the door.

Hayes approached Moore shortly after he stepped outside onto the store's sidewalk. After identifying himself and his position with Wal-Mart, Hayes informed Moore he needed to speak with him regarding some unpaid merchandise. During the time Hayes was talking, Moore began digging around in his back pocket. At first, Hayes believed Moore might be looking for a receipt. However, when Moore stated, "What this, are you sure," Hayes looked down at Moore's hand to discover the thief was brandishing a semiautomatic .22 caliber handgun.

Fearing for his own safety and that of Wal-Mart's customers, Hayes immediately ended the encounter and went back into the building to make certain the police were apprised of the situation. Moore walked off of Wal-Mart's premises but was apprehended by police a short time later. $454.60 in unpaid Wal-Mart merchandise was recovered from Moore's possession.

Moore was charged with armed robbery. At the close of the State's case, he moved for a directed verdict and requested the charge be lowered to petty larceny. Moore argued, inter alia, that armed robbery could not be proven because asportation of the property occurred before the confrontation and no force or threat of force was used to take the merchandise. After extensive arguments, the trial judge denied the motion for a directed verdict, finding the offense of armed robbery requires asportation, which includes the escape. It was during the commission of the crime that Moore threatened use of the weapon. At the close of the evidence, Moore renewed his directed verdict motion. The motion was denied. Moore was convicted of armed robbery and sentenced to fifteen years.

STANDARD OF REVIEW

In criminal cases, an appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006); State v. Douglas, 367 S.C. 498, 506, 626 S.E.2d 59, 63 (Ct.App.2006) cert. pending; State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct.App.2004). Thus, an appellate court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000); State v. Patterson, 367 S.C. 219, 625 S.E.2d 239 (Ct.App.2006); State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 504 (Ct.App.2004). This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct. App.2003).

"The appellate court may reverse the trial judge's denial of a motion for a directed verdict only if there is no evidence to support the judge's ruling." State v. Zeigler, 364 S.C. 94, 103, 610 S.E.2d 859, 863 (Ct.App.2005) (citing State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002)). On appeal, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); Douglas, 367 S.C. at 506, 626 S.E.2d at 63; State v. Walker, 366 S.C. 643, 623 S.E.2d 122 (Ct. App.2005). An abuse of discretion occurs when a ruling is based on an error of law or a factual conclusion that is without evidentiary support. Fields v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 609 S.E.2d 506 (2005); Renney v. Dobbs House, Inc., 275 S.C. 562, 274 S.E.2d 290 (1981); see also Simon v. Flowers, 231 S.C. 545, 550, 99 S.E.2d 391, 393-94 (1957) ("`[E]rror at law' exists: (1) when the circuit judge, in issuing [the order], was controlled by some error of law . . . or (2) where the order, based upon factual, as distinguished from legal, considerations, is without adequate evidentiary support."); McSween v. Windham, 77 S.C. 223, 226, 57 S.E. 847, 848 (1907) ("[T]he determination of the court will not be interfered with, unless there is an abuse of discretion, or unless the exercise of discretion was controlled by some error of law.").

When ruling on a motion for a directed verdict, the trial judge is concerned with the existence or nonexistence of evidence, not its weight. State v. Weston, 367 S.C. 279, 625 S.E.2d 641 (2006); Sellers v. State, 362 S.C. 182, 607 S.E.2d 82 (2005); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. Rosemond, 356 S.C. 426, 430, 589 S.E.2d 757, 758-59 (2003); State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001). A case should be submitted to the jury if there is any direct evidence or any substantial circumstantial evidence that reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Walker, 349 S.C. 49, 562 S.E.2d 313 (2002); State v. Buckmon, 347 S.C. 316, 555 S.E.2d 402 (2001); State v. Al-Amin, 353 S.C. 405, 411, 578 S.E.2d 32, 35 (Ct.App.2003); see also State v. Martin, 340 S.C. 597, 533 S.E.2d 572 (2000) (stating where the evidence is circumstantial, a trial court has the duty to submit a case to jury so long as there is substantial circumstantial evidence that reasonably tends to prove guilt of accused or from which his guilt may be fairly and logically deduced). "[I]n ruling on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the State." State v. Prince, 316 S.C. 57, 64, 447 S.E.2d 177, 181-82 (1993).

A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171 (2003); State v. Rothschild, 351 S.C. 238, 243, 569 S.E.2d 346, 348 (2002); State v. Padgett, 354 S.C. 268, 580 S.E.2d 159 (Ct. App.2003); State v. Wilds, 355 S.C. 269, 274, 584 S.E.2d 138, 141 (Ct.App.2003). The trial court should grant a directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. State v. Arnold, 361 S.C. 386, 605 S.E.2d 529 (2004); State v. Schrock, 283 S.C. 129, 132, 322 S.E.2d 450, 452 (1984); State v. Horne, 324 S.C. 372, 379, 478 S.E.2d 289, 293 (Ct.App.1996). "Suspicion" implies a belief or opinion as to guilt that is based upon facts or circumstances that do not amount to proof. Cherry, 361 S.C. at 594, 606 S.E.2d at 478; State v. Lollis, 343 S.C. 580, 541 S.E.2d 254 (2001); Zeigler 364 S.C. at 103, 610 S.E.2d at 863. A trial judge is not required to find that the evidence infers guilt to the exclusion of any other reasonable hypotheses. Cherry, 361 S.C. at 594, 606 S.E.2d at 478; State v. Ballenger, 322 S.C. 196, 470 S.E.2d 851 (1996).

On appeal from the denial of a directed verdict in a criminal case, an appellate court must view the evidence and all reasonable inferences in the light most favorable to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Wilds, 355 S.C. at 274, 584 S.E.2d at 141; State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct.App.2002). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this Court must find the case was properly submitted to the jury. State v. Harris, 351 S.C. 643, 653, 572 S.E.2d 267, 273 (2002); State v. Condrey, 349 S.C. 184, 190, 562 S.E.2d 320, 323 (Ct.App.2002); State v. Patterson, 337 S.C. 215, 232, 522 S.E.2d 845, 853 (Ct.App.1999).

LAW/ANALYSIS

Moore argues the trial court erred in refusing to direct a verdict of acquittal on the charge of armed robbery. He alleges the charge of armed robbery was improper because the evidence does not show he used force or intimidation to take Wal-Mart's merchandise, but only to retain the property and escape. We disagree.

1. THE LAW EXTANT AS TO ARMED ROBBERY

Armed robbery occurs when a person commits robbery while either armed with a deadly weapon or alleging to be armed by the representation of a deadly weapon. S.C.Code Ann. § 16-11-330 (2003); see also State v. Al-Amin, 353 S.C. 405, 424, 578 S.E.2d 32, 42 (Ct.App.2003) ("Armed robbery occurs when a person commits robbery either while armed with a deadly weapon or while the person was alleging he was armed and was using a representation of a deadly weapon."). Included in armed robbery is the lesser included offense of robbery. State v. Scipio, 283 S.C. 124, 125-126, 322 S.E.2d 15, 16 (1984). Our statutory scheme specifies that the definition of robbery is to be provided by South Carolina's common law. See S.C.Code Ann. § 16-11-325 (2003) (stating: "The common law offense of robbery is a felony. Upon conviction, a person must be imprisoned not more than fifteen years."); see also Al-Amin, 353 S.C. at 424, 578 S.E.2d at 42 ("Our statutory scheme provides that the crime of robbery is defined by the common law.").

"Robbery is defined as the felonious or unlawful...