State v. Brandenburg

• Decision Date: 22 February 2017
• Docket Number: Opinion No. 5470,Appellate Case No. 2013-002655
• Citation: 797 S.E.2d 416,419 S.C. 346
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Charles Moody BRANDENBURG, Jr., Appellant.

419 S.C. 346

797 S.E.2d 416

The STATE, Respondent,

v.Charles Moody BRANDENBURG, Jr., Appellant.

Appellate Case No. 2013-002655

Opinion No. 5470

Court of Appeals of South Carolina.

Submitted September 1, 2016

Filed February 22, 2017

Appellate Defender Robert M. Pachak, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Megan Harrigan Jameson, both of Columbia, for Respondent.

WILLIAMS, J.:

In this criminal appeal, Charles Moody Brandenburg claims the circuit court erred in charging the jury on first-degree harassment (harassment) as a lesser included offense of stalking. Brandenburg argues harassment is not a lesser included offense of stalking because harassment includes two elements not found in stalking: "unreasonable intrusion into the private life of a targeted person" and "emotional distress." We affirm.

FACTS

In December 2013, Brandenburg proceeded to trial on an indictment for stalking. Angela Brandenburg (Angela) testified Brandenburg was her estranged husband. Angela claimed they had two children and lived in Berkeley County, but they separated in June 2012. According to Angela, she left Brandenburg without notice and moved into her parents' home in Abbeville County. Angela stated Brandenburg followed her or "showed up" unexpectedly on several occasions. Despite the family court awarding Angela sole custody of their children and issuing an order prohibiting Brandenburg from contacting her, she asserted he continued to contact her.

After Brandenburg rested, the State requested the circuit court charge the jury on harassment as a lesser included offense. Brandenburg objected to including harassment because the State originally had a warrant for stalking and a warrant for harassment. Brandenburg claimed the State chose to proceed on the stalking charge, and therefore, "they need[ed] to go with that choice." The State claimed harassment was a lesser included offense and the law did not require the State to choose between lesser included offenses. The State asserted the circuit court should charge harassment if the evidence supported the charge. The circuit court noted it believed harassment was not a lesser included offense of stalking, but it reserved its final ruling until the following day.

The next day, the circuit court noted it had "extensive in chambers discussions" regarding the jury charge, but it would allow the parties to explain their positions on the record. The circuit court explained it intended to include a jury charge on harassment and allow the jury to find Brandenburg guilty of harassment if they found him not guilty of stalking. The State explained the test for determining whether an offense was a lesser included offense was "whether the elements [were] the same, minus one." Brandenburg argued harassment was not a lesser included offense because "the harassment statute included elements that [were] not in the stalking statute." Specifically, Brandenburg claimed the harassment statute required an "[un]reasonable intrusion" but the stalking statute did not. In addition, Brandenburg asserted the harassment statute required the victim to suffer emotional distress whereas the stalking statute did not. The court indicated it appreciated Brandenburg's position, but "considering everything," it believed charging harassment was appropriate.

Subsequently, the circuit court charged the jury that it could consider whether the State proved beyond a reasonable doubt that Brandenburg committed harassment if it found Brandenburg not guilty of stalking. The jury found Brandenburg not guilty of stalking but guilty of harassment. The circuit court sentenced Brandenburg to three years' imprisonment suspended on the service of sixteen months' imprisonment and five years' probation. Brandenburg's counsel submitted a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the appeal was meritless and asking to be relieved as counsel. This court denied the motion to be relieved as counsel and directed the parties to brief the issue that is now before this court on appeal.

STANDARD OF REVIEW

"An appellate court will not reverse the [circuit court]'s decision regarding a jury charge absent an abuse of discretion." State v. Brandt , 393 S.C. 526, 550, 713 S.E.2d 591, 603 (2011) (quoting State v. Mattison , 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010) ). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law." State v. Patterson , 367 S.C. 219, 224, 625 S.E.2d 239, 242 (Ct. App. 2006). "To warrant reversal, a [circuit court]'s refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant." State v. Adkins , 353 S.C. 312, 319, 577 S.E.2d 460, 464 (Ct. App. 2003).

Questions of statutory interpretation are questions of law, which are subject to de novo review and which we are free to decide without any deference to the court below. Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689 (2010). "The cardinal rule of statutory interpretation is to ascertain and effectuate the intent[ ] of the legislature." Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007). "All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute." State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (quoting Broadhurst v. City of Myrtle Beach Election Comm'n , 342 S.C. 373, 380, 537 S.E.2d 543, 546 (2000) ).

LAW/ANALYSIS

Brandenburg argues the circuit court erred by including a jury charge for harassment as a lesser included offense of stalking. Specifically, Brandenburg claims harassment is not a lesser included offense of stalking because harassment includes the elements of an "unreasonable intrusion into the private life of a targeted person" and "emotional distress," which are not elements of stalking. We disagree.

"In reviewing jury charges for error, we must consider the [circuit] court's jury charge as a whole in light of the evidence and issues presented at trial." Adkins , 353 S.C. at 318, 577 S.E.2d at 463. The circuit "court is required to charge only the current and correct law of South Carolina." Brandt , 393 S.C. at 549, 713 S.E.2d at 603 (quoting Sheppard v. State , 357 S.C. 646, 665, 594 S.E.2d 462, 472 (2004) ). "The [circuit court] is to charge the jury on a lesser included offense if there is any evidence from which the jury could infer that the lesser, rather than the greater, offense was committed." State v. Watson , 349 S.C. 372, 375, 563 S.E.2d 336, 337 (2002). "A [lesser included] offense is one whose elements are wholly contained within the crime charged." State v. Dickerson , 395 S.C. 101, 118, 716 S.E.2d 895, 904 (2011).

"The primary test for determining if a particular offense is a lesser included of the offense charged is the elements test. The elements test inquires whether the greater of the two offenses includes all the elements of the lesser offense." Watson , 349 S.C. at 375, 563 S.E.2d at 337 (citation omitted). "If the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater." Hope v. State , 328 S.C. 78, 81, 492 S.E.2d 76, 78 (1997) (quoting State v. Bland , 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995) ). To that end, under any circumstance, if a person can commit the greater offense without being guilty of the purported lesser offense, then the latter is not a lesser included offense. State v. Parker , 344 S.C. 250, 256, 543 S.E.2d 255, 258 (Ct. App. 2001). However, even if the elements of the greater offense do not include all the elements of the lesser offense, we may still construe the lesser offense as a lesser included offense if it "has traditionally been considered a lesser included offense of the greater offense." Watson , 349 S.C. at 376, 563 S.E.2d at 338.

The cardinal rule of statutory construction is that the court must ascertain and effectuate the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman , 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Therefore, "[i]n interpreting a statute, [the] words must be given their plain and ordinary meaning without resorting to subtle or forced construction [that] limit or expand the statute's operation." Rowe v. Hyatt , 321 S.C. 366, 369, 468 S.E.2d 649, 650 (1996). "[S]tatutes, as a whole, must receive [a] practical, reasonable[,] and fair interpretation consonant with the purpose, design[,] and policy of lawmakers." Whiteside v. Cherokee Cty. Sch. Dist. No. One , 311 S.C. 335, 340, 428 S.E.2d 886, 888 (1993).

Furthermore, the court should not consider the particular clause being construed in isolation, but should read it in conjunction with the purpose of the whole statute and the policy of the law. S.C. Coastal Council v. S.C. State Ethics Comm'n , 306 S.C. 41, 44, 410 S.E.2d 245, 247 (1991). Statutory provisions should be given a reasonable construction consistent with the purpose of the statute. Jackson v. Charleston Cty. Sch. Dist. , 316 S.C. 177, 181, 447 S.E.2d 859, 861 (1994). "[S]tatutes [that] are part of the same [a]ct must be read together." Burns v. State Farm Mut. Auto. Ins. Co. , 297 S.C. 520, 522, 377 S.E.2d 569, 570 (1989).

Section 16-3-1700(A) of the South Carolina Code (2015) defines harassment in the first degree as follows:

[A] pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress. Harassment in the first degree may include, but is not limited to:

(1) following the targeted person as he moves from location to location;

(2) visual or physical contact that is

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