State v. Gagum

• Decision Date: 09 September 1997
• Docket Number: No. 2737,2737
• Citation: 328 S.C. 560,492 S.E.2d 822
• Parties: The STATE, Respondent v. Odell GAGUM, Jr., Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 822

492 S.E.2d 822

328 S.C. 560

The STATE, Respondent v. Odell GAGUM, Jr., Appellant.

No. 2737.

Court of Appeals of South Carolina.

Heard Sept. 9, 1997.

Decided Oct. 20, 1997.

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney Salley W. Elliott, Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor David P. Schwacke, Charleston, for respondent.

HOWELL, Chief Judge:

Odell Gagum, Jr. appeals from his conviction for strong-arm robbery, arising from the theft of a purse. Counsel for Gagum initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there were no meritorious grounds for appeal and requesting permission to withdraw from further representation. This Court denied the request to withdraw and directed the parties to file additional briefs. After reviewing the record and the briefs prepared by the parties, we affirm.

I.

Shortly after 9:00 p.m. on March 15, 1995, Kathryn Lindenmayer was returning to her apartment in downtown Charleston after grocery shopping. As she walked down the sidewalk with her groceries in her arms, a man she identified as Gagum approached and stopped her, asking for directions to President Street. After Lindenmayer gave him the directions, he asked for directions to other places and began telling her a story about being a donor at a cancer center and needing bus fare. Lindenmayer told Gagum she had no money and began moving away from him. After walking a few steps towards her apartment, Lindenmayer looked over her shoulder and noticed that Gagum, who had been walking in the opposite direction, had turned around and was walking back towards her. Lindenmayer then hurried towards her apartment door, but Gagum caught up with her. Gagum told Lindenmayer, "you're going to give me your purse," and grabbed her arm. According to Lindenmayer, Gagum "began to stare at me very--in a frightening manner, in an unkind manner, as though he had intent of doing me harm." Gagum pulled on her arm repeatedly and pulled her groceries out of her hand, throwing them on the ground. Gagum continued pulling on Lindenmayer's arm and purse for approximately 15-20 seconds, until Lindenmayer finally let go of her purse. After the struggle, Gagum calmly walked down the street.

Lindenmayer ran into her apartment and told Nevette Steele, her boyfriend, that her purse had been stolen. She pointed Steele in the direction that Gagum had gone and then went into her apartment and called 911. As Steele and a friend ran down the street in Gagum's direction, Gagum began to run. Steele then saw Lindenmayer's purse in Gagum's hand. Gagum ran into a fenced parking lot where Steele and his friend cornered him. Gagum threw a punch at Steele, who then threw Gagum on the ground and held him down. ¹ Steele testified that after his friend took Lindenmayer's purse away from Gagum, Gagum asked his friend to let him go, and offered them "dope" if they would let him go. The police arrived on the scene a few minutes later. Lindenmayer arrived at the scene with another police officer shortly thereafter and she identified Gagum as the man who stole her purse.

In his opening and closing statements, counsel for Gagum conceded that Gagum stole Lindenmayer's purse, but argued that the crime he committed was purse-snatching, not strong-arm robbery. The jury found Gagum guilty of strong-arm robbery, and the trial court sentenced him to six years imprisonment.

II.

Before the trial began, Gagum's attorney moved to exclude the testimony that Gagum offered drugs to Steele and his friend if they would let him go, as well as the testimony about Gagum's assault on Steele. Gagum argued the testimony was inadmissible because it involved prior bad acts that did not fit within one of the exceptions set forth in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), and that the prejudicial impact outweighed its probative value. The trial court admitted the evidence, holding it was part of the res gestae of the crime.

Evidence of other crimes committed by a defendant is generally admissible if the other crimes were part of the res gestae of the crime for which the defendant was being tried. Under this theory, evidence of other crimes is admissible when the evidence

"furnishes part of the context of the crime" or is necessary to a "full presentation" of the case, or is so intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its "environment" that its proof is appropriate in order "to complete the story of the crime on trial by proving its immediate context or the 'res gestae' " or the "uncharged offense is 'so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other.' "

State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996) (quoting United States v. Masters, 622 F.2d 83 (4th Cir.1980)); accord State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997); State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996). ²

As to the evidence of Gagum's assault of Steele, we conclude that Gagum failed to preserve the issue for appeal. As noted above, Gagum moved in limine to suppress the disputed evidence. Because a ruling in an in limine motion is not final, the losing party must renew his objection at trial when the evidence is presented in order to preserve the issue for appeal. State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993); State v. Mueller, 319 S.C. 266, 460 S.E.2d 409 (Ct.App.1995). In this case, however, Gagum did not renew his objection until after Steele testified that Gagum punched him and struggled with him. Therefore, by failing to timely object, Gagum waived his right to challenge on appeal the admissibility of the testimony regarding the assault of Steele.

As to the admissibility of Gagum's offer of "dope," Gagum's objection at trial was timely; accordingly, the issue is preserved for appeal. Nonetheless, we conclude that the trial court did not err by admitting the evidence.

Steele testified that he began running down the street almost immediately after the robbery and that he apprehended Gagum within minutes. Steele testified that he and his friend brought Gagum to the ground, took Lindenmayer's purse from him, and held him down until the police arrived. It was during this time that Gagum offered to give Steele drugs if he would let him go. Under these circumstances, it is clear that the offering of the drugs "was so intimately connected with the crime charged that its introduction was appropriate to complete the story of the crime." State v. Bolden, 303 S.C. 41, 43, 398 S.E.2d 494, 495 (1990). Thus, the evidence was part of the res gestae ³ of the crime with which Gagum was charged, and the trial court properly refused to "unnecessarily fragmentize the State's case" by excluding the testimony. Adams, 322 S.C. at 122, 470 S.E.2d at 371.

Accordingly, for the foregoing reasons, the decision of the trial court is hereby

AFFIRMED.

HEARN and STILWELL, JJ., concur.

1 At the conclusion of the trial, Gagum pleaded guilty to a charge of simple assault...