State v. Gore

• Decision Date: 08 February 1995
• Docket Number: No. 2316,2316
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. James Gerald GORE, Appellant. . Heard

Page 419

456 S.E.2d 419

The STATE, Respondent, v. James Gerald GORE, Appellant.

No. 2316.

Court of Appeals of South Carolina.

Heard Feb. 8, 1995.

Decided March 13, 1995.

Rehearing Denied April 17, 1995.

Certiorari Denied Dec. 19, 1995.

Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., and Asst. Atty. Gen. Alexandria Broughton Skinner, Columbia; and Solicitor Thomas E. Pope, York, for respondent.

HOWELL, Chief Judge:

James Gore was convicted of attempted breaking into of a motor vehicle, possession of marijuana, and possession of burglary tools. He was sentenced to sixteen years of imprisonment, based on consecutive terms of five years, one year, and ten years for the respective offenses. Gore appeals the trial court's denial of his motion for a directed verdict on all three charges. We reverse on the attempted breaking conviction and affirm on the two possession convictions.

When reviewing the denial of a criminal defendant's directed verdict motion, an appellate court should affirm if there is any competent evidence to support the verdict. State v. McClinton, 265 S.C. 171, 217 S.E.2d 584 (1975). The facts viewed in the light most favorable to the State are as follows. In the early morning hours of July 7, 1992, Rock Hill police officers responded to a report that two people had parked a Mustang at a local restaurant and walked away from the vehicle. While some officers conducted surveillance of the unattended vehicle at the restaurant, another officer performed back-up patrolling duties a few streets away. Enroute on foot to investigate a nearby school, the back-up officer heard "clanging noises" from a used auto sales lot. In the parking lot, the officer observed a Mustang with "feet sticking out both sides of it." After the policeman identified himself, one suspect came out from under the vehicle, while Gore remained on the ground. Assisting officers quickly arrived on the scene, and pulled Gore from beneath an adjacent car under which he had apparently rolled.

A wrench, a flashlight, and a bag of marijuana were found on the ground under the adjacent car. A second flashlight, C-clamp, and three bolts were found under the Mustang. There was no evidence of broken glass or sign of entry into the passenger compartment, trunk, gas tank, or hood of the Mustang, nor were any items missing from inside the car. However, the manager of the car lot testified that bolts were removed from the drive shaft and the drive shaft housing was damaged. A set of car keys was also found on Gore. The keys fit the car which had been parked at the restaurant. A search of that vehicle yielded drug paraphernalia used for smoking marijuana.

On appeal, Gore argues that the trial court should have granted his motions for directed verdicts of acquittal on each charge. We address each conviction in turn.

I. Attempted Breaking into a Motor Vehicle

Gore was charged with the breaking or attempted breaking into a motor vehicle in violation of S.C.Code Ann. § 16-13-160 (1976) (amended 1993). In pertinent part, the statute makes it illegal for a person to "break or attempt to break into any motor vehicle or any compartment thereof." Gore claims that the State failed to produce sufficient evidence of a breaking or attempted breaking into the vehicle or one of its compartments. We agree.

The plain language of the statute requires a breaking or attempted breaking into the vehicle itself or one of its compartments. Thus, the question before us is whether the attempted removal of a component part amounts to an attempted breaking into a car or one of its compartments. The State apparently contends that attempting to steal any single part of a car constitutes an attempt to break into the car itself, if not one of the compartments of the car, thus satisfying the requirements of the statute. We disagree. Criminal statutes must be strictly construed against the State and in favor of the defendant. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991). As we read the statute, it is clear that the word "vehicle" refers to the passenger area of the car. However, there was no evidence that Gore was attempting to gain entry into the passenger area. Therefore, to sustain the conviction, Gore's actions must have amounted to an attempted breaking into a compartment of the vehicle.

In general usage, a "compartment" refers to a separate area, section, or chamber of a larger area. See, e.g., American Heritage Dictionary 300 (2d College ed.). In the context of the statute, therefore, "compartment" must refer to a separate area or chamber of the vehicle itself, and would include the trunk area, the engine compartment, and the gas tank. A breaking is "any act of physical force, however slight, whereby any obstruction to entering is forcibly removed.... If any force be required and employed to remove or displace that which has been placed there to close the opening, this is enough." State v. Maxey, 218 S.C. 106, 114-15, 62 S.E.2d 100, 104 (1950) (emphasis added). While there was ample evidence to show that Gore was attempting to remove the drive shaft, there was no evidence that the drive shaft in any way closes an opening to the engine compartment. Thus, attempting to remove the drive shaft does not amount to attempting to break into the engine compartment, just as breaking off an antenna does not amount to breaking into the trunk, nor does removing a sideview mirror amount to breaking into the passenger compartment.

The State, however, argues that Gore broke into the engine compartment because he entered the engine compartment, comparing Gore's crime to burglary. An unlawful entry without a breaking is sufficient for a burglary conviction because our burglary statutes no longer include breaking as an element. S.C.Code Ann. §§ 16-11-311-313 (Supp.1993); State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). However, the statute under which Gore was convicted explicitly requires a breaking; mere entry is not enough. Cf. State v. Dunbar, 282 S.C. 169, 318 S.E.2d 16 (1984) (under former housebreaking statute, breaking requirement not satisfied where accused entered house via carport without opening any doors or removing obstructions). Thus, even if it could be said that Gore entered the engine compartment by going under the car, the entry is not enough to sustain the conviction. Because Gore removed no obstruction to gain entry to the engine compartment, the statute's breaking requirement was not satisfied. Id.

Gore could have been charged under our...