In The Interest Of Spencer R., A Juvenile Under The Age Of Seventeen, Appellant.

• Decision Date: 05 April 2010
• Docket Number: No. 4668.,4668.
• Citation: 692 S.E.2d 569,387 S.C. 517
• Court: South Carolina Court of Appeals
• Parties: In the Interest of SPENCER R., a juvenile under the age of seventeen, Appellant.

387 S.C. 517

692 S.E.2d 569

In the Interest of SPENCER R., a juvenile under the age of seventeen, Appellant.

No. 4668.

Court of Appeals of South Carolina.

Heard Feb. 2, 2010.

Decided April 5, 2010.

David H. Cooley, of Myrtle Beach, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.

PER CURIAM.

Spencer R. appeals his conviction for presenting a firearm, alleging the family court erred in finding sufficient evidence to support his conviction. We affirm in part and reverse in part.

FACTS

The State charged Spencer R. with pointing or presenting a firearm after police received a 911 call reporting he was in front of his residence with a gun threatening people at a school bus stop. The police arrested Spencer R. and retrieved a loaded assault rifle containing eighteen rounds of ammunition from his residence.

At trial, Mrs. L. testified she was about to leave for work when she received a text message on her cell phone from her fifteen-year-old daughter, Angela B., stating Spencer R. wanted to shoot and kill Angela B. After receiving the text message, Mrs. L. drove to Angela B.'s school and discovered the school suspended Spencer R. for three days after an altercation occurred between Spencer R. and one of Angela B.'s friends. After the school day concluded, Mrs. L. drove to the bus stop to pick up her children. She testified Spencer R. lived three houses away from the bus stop,¹ and when she passed by, she saw Spencer R. walk onto his driveway carrying a gun. Mrs. L. stated he was holding the gun at a ten o'clock and four o'clock angle, with the bottom of the gun about level with his chest and the barrel in the air. She testified he sat down in a chair on the driveway that was visible from the bus stop, but he did not see her or turn in her direction. Additionally, he did not wave or point the weapon at her. After seeing Spencer R., Mrs. L. called her husband because she felt threatened. Mrs. L.'s husband arrived shortly thereafter, and they waited until the school bus arrived. When Angela B. and her friend, Brett C., exited the school bus, Mrs. L. told them to hurry and get in her car because Spencer R. was “over there with some type of weapon.” As she drove past Spencer R.'s house, Mrs. L. stated she told the children to “stay low, don't look, duck down,” but she did not look at the children to see if they followed her instructions. After Mrs. L. arrived at her residence, she called the police.

Brett C. testified when he walked up to the bus stop with Angela B. that morning, he observed one of Angela B.'s friends slap Spencer R. Brett C. explained Spencer R. returned to the bus stop with his parents after the altercation and said he wanted to shoot Angela B. Brett C. testified when he and Angela B. got off the school bus later that afternoon, he saw Spencer R. standing in the driveway with a gun. He explained Spencer R. was not waving or aiming the gun at them, but was holding it up. Brett C. stated after he and Angela B. got into Mrs. L's car, Mrs. L. told them to duck down as they drove by Spencer R.'s house. He testified he looked out of the window as he ducked down and saw Spencer R. holding the gun and “staring us down like he wanted to shoot us.”

Rodney T., another student, testified he also observed Spencer R. with a gun that same afternoon. After he left the school bus, he walked by Spencer R.'s house and saw Spencer R. sitting in a lawn chair in the driveway of his house with a gun between his legs and his hands on the barrel of the gun. Rodney T. asked Spencer R. what he was doing, and Spencer R. replied he “was going to shoot the bitch.” Rodney T. stated he thought Spencer R. was referring to Angela B.

The family court found Spencer R. guilty of presenting a loaded assault rifle at Mrs. L., Angela B., and Brett C. In its order, the family court defined presenting:

The court has considered all offered definitions of the term “presenting” and the [c]ourt finds that “presenting” means to offer for observation, show or display. In military terms, to present arms means to hold up a rifle vertically in front of the body with the muzzle up. The court finds that clearly, the muzzle of the gun was up. Clearly, the gun was in plain view; it was observed by Mrs. L., Brett, and Rodney.

This appeal followed.

LAW/ANALYSIS

Section 16-23-410 of the South Carolina Code (2003) states, in pertinent part: “It is unlawful for a person to present or point at another person a loaded or unloaded firearm. A person who violates the provisions of this section is guilty of a felony....” Neither the South Carolina Code nor South Carolina case law squarely define the phrase “to present.” However, our supreme court has previously determined what actions amount to presenting a firearm. In State v. Reese, the supreme court held Reese was not entitled to an involuntary manslaughter instruction because he “presented a firearm” when he took out a gun and waved it in the victim's face. 370 S.C. 31, 36, 633 S.E.2d 898, 900-01 (2006) overruled on other grounds by State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009). Likewise, in State v. Cabrera-Pena, the court found the defendant's conduct in showing the victim his pistol as a means of intimidation and forcing her to walk towards a pickup truck constituted a felony of either pointing or presenting a firearm or kidnapping, and thereby precluded an involuntary manslaughter charge. 361 S.C. 372, 381, 605 S.E.2d 522, 526-27 (2004). Here, Spencer R. maintains the court's analysis in Reese provides the only applicable clarification of the term “present,” and because he did not wave his firearm, insufficient evidence exists to support his conviction for presenting a firearm. We disagree.

The implication from the court's discussion in Reese and Cabrera-Pena is that either “waving” or “showing” a gun at someone in a direct, actively aggressive, and threatening manner constitutes presenting a firearm. Additionally, in both cases the victims were in close proximity to the defendants. The case at bar presents a more ambiguous set of facts because Spencer R. displayed his assault rifle in the view of Mrs. L., Angela B., and Brett C. while sitting on his driveway a couple of houses away from the bus stop. Because the phrase “to present” has not been defined in either statutory or case law, the task of determining the plain and ordinary meaning of the term “to present” requires an examination of the term as it arises in other contexts. See State v. Morgan, 352 S.C. 359, 366, 574 S.E.2d 203, 206 (Ct.App.2002) (“When faced with an undefined statutory term, the court must interpret the term in accord with its usual and customary meaning.”).

Although various definitions of the infinitive “to present” exist, two definitions in particular apply in the area of presenting firearms: “to offer to view: show,” and “to aim, point, or to direct (as a weapon) so as to face something or in a particular direction.” Merriam-Webster's Collegiate Dictionary 921 (10th ed. 1993). There is no formal legal definition of the term “to present” a firearm. See Black's Law Dictionary 1221-22 (8th ed. 2004). While these two definitions provide some guidance, our court has recognized the inquiry cannot end here. See Heilker v. Zoning Bd. of Appeals for City of Beaufort, 346 S.C. 401, 409, 552 S.E.2d 42, 46 (Ct.App.2001) (“[W]e are reluctant to rely upon either a dictionary or cases that have relied upon a dictionary for a definitive answer as to the definition ... when extensive case law exists that provides an accurate and reliable definition for the term.”).

State legislatures in other jurisdictions have enacted similar statutes criminalizing the presenting of a firearm, but they have not employed the exact phrasing of “to present” as provided in section 16-23-410 of the South Carolina Code. Instead, they describe the crime as “exhibiting” or “ brandishing” a firearm. See, e.g., Cal.Penal Code § 417(a)(2) (2009) ( “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows....”); Mo. Ann. Stat. § 571.030(1) (4) (2009) (“A person commits the crime of unlawful use of weapons if he or she knowingly ... [e]xhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner....”); Va.Code Ann. § 18.2-282(A) (2009) (“It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another....”).

While none of these statutes are perfectly analogous to section 16-23-410, an examination of them in the aggregate reveals an effort by the legislatures in these jurisdictions to...