State v. Jefferies

• Decision Date: 19 February 1991
• Docket Number: No. 1649,1649
• Citation: 403 S.E.2d 169,304 S.C. 141
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Jeffrey JEFFERIES, Appellant. . Heard

Page 169

403 S.E.2d 169

304 S.C. 141

The STATE, Respondent, v. Jeffrey JEFFERIES, Appellant.

No. 1649.

Court of Appeals of South Carolina.

Heard Feb. 19, 1991.

Decided April 22, 1991.

Rehearing Denied May 3, 1991.

Assistant Appellate Defender Franklin W. Draper, of SC Office of Appellate Defense, and Belinda Ellison, Columbia, and Thomas P. Bellinger, Lexington, for appellant.

Attorney General T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., Amie L. Clifford and Norman Mark Rapoport, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

GARDNER, Judge:

Jeffrey Jefferies (Jefferies) was convicted of assault and battery of a high and aggravated nature, grand larceny of a motor vehicle, and kidnapping. We affirm.

ISSUES

The issues of merit are (1) whether the trial judge committed reversible error in refusing to quash the indictment for kidnapping on the grounds of double jeopardy, collateral estoppel or inconsistent verdict, (2) whether the trial judge committed reversible error in refusing to give the defendant's requested charges on intent as an element of kidnapping, and (3) whether the trial judge erred in refusing to define the words "positive act" which he had used in charging the jury.

FACTS

We review the essential facts in a light most favorable to the State.

Jefferies was an inmate at a Department of Youth Services (DYS) Facility. He ran away and came upon a car at a filling station near Interstate I-26. The car was running and no one was in the driver's seat. He opened the door and began to get in when Roland Caldwell, the owner, returned and attempted to stop him. Jefferies slammed Caldwell with the door several times, closed it and began to drive away. Caldwell continued to hold on to a slightly open window as Jefferies drove away, pleading with Jefferies to release his four-month old son who was in the car. Jefferies ignored Caldwell's pleas, offering only to slow down and let Caldwell get off the car. As Jefferies approached the I-26 ramp at a higher rate of speed, Caldwell fell from the car.

A pick-up truck stopped to assist Caldwell and they gave chase. They followed Jefferies on to I-20 and then off the interstate into a parking area and then into an apartment complex, where Jefferies escaped. Caldwell then called the police. This incident occurred about 8:00 p.m. in Lexington County. Later that night at approximately 3:00 a.m., the police found Jefferies and the stolen automobile at a nightclub near Gaffney, South Carolina. The police questioned Jefferies who first denied any knowledge of the incident but later said he left the child with a woman in front of a store near the Newberry exit off I-26.

The child was found at about 3:45 a.m. in Newberry County. The child had been abandoned in the back of a service station but was uninjured.

In January 1989, Jefferies was indicted in Newberry County for willful neglect and willful abandonment. He pleaded guilty to willful abandonment and was sentenced. In February 1989, he was indicted in Lexington County on the charges involved in this case.

Jefferies did not testify. He proffered testimony, which the trial judge excluded, from four witnesses to establish the following facts: (1) he ran away because DYS would not give him a pass for the Thanksgiving holiday; (2) he took the car to get home for the holiday; and (3) he did not see the child in the back seat until the father began yelling about the child. At trial and on appeal, Jefferies argues that this evidence showed that he did not intend to kidnap the child.

The child was discovered approximately 30 miles from the point Jefferies took the automobile.

DISCUSSION

I.

Jefferies moved to quash the indictment on the grounds of double jeopardy, collateral estoppel and election of remedies. We hold that the trial judge properly overruled the motion because, inter alia, abandonment is not an essential element of kidnapping.

Double jeopardy prohibits a second prosecution for the same offense after acquittal or conviction, and multiple punishment for the same offense. State v. Magazine, --- S.C. ----, 393 S.E.2d 385 (1990).

Recently, the United States Supreme Court case of Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) added a new dimension to the traditional concept of the double jeopardy clause.

We quote:

We have long held, see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), that the Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever each statute does not "requir[e] proof of a fact which the other does not." In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) we suggested that even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution. Today we adopt the suggestion set forth in Vitale. We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

--- U.S. at ----, 110 S.Ct. at 2087 [Footnotes omitted].

Jefferies argues the following: (1) kidnapping is a continuing offense that ends upon restoring freedom, and therefore restoring freedom is an element of kidnapping; (2) abandonment is an element of willful abandonment; (3) the element of abandonment is the same as restoring freedom, and therefore is an essential element of kidnapping; and, therefore, (4) double jeopardy bars the kidnapping charge. The fallacy of this argument is that the restoration of freedom is not an essential factor or element of the crime of kidnapping. If it were, a kidnapper who murders his victim could not be convicted for kidnapping because of his failure to restore the victim's freedom. Kidnapping is a statutory offense set forth in S.C.Code Ann. § 16-3-910 (1976). In essence the crime is completed when the perpetrator unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts or carries away the victim by any means.

Jefferies' argument that the restoration of freedom is an essential element of kidnapping seems, on first blush, to be well The crime of kidnapping is complete when the kidnapper unlawfully deprives the kidnapped person of his freedom. For this reason we hold that the restoration of freedom is not an essential element of kidnapping. We, therefore, reject Jefferies argument that his prosecution in this case was barred on the grounds of double jeopardy.

                founded in authority from our Supreme Court.   Several cases indicate that a kidnapping commences when one is wrongfully deprived of his freedom and continues until freedom is restored.   See State v. Ziegler, 274 S.C. 6, 10-11, 260 S.E.2d 182, 184-185 (1979);  State v. Hall, 280 S.C. 74, 78, 310 S.E.2d 429, 431 (1983);  State v. Kornahrens, 290 S.C. 281, 287, 350 S.E.2d 180, 184 (1986), cert. den. 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987).   A careful analysis of these decisions, however, reveals that the point necessary for the decision in each case was that kidnapping is a continuing offense as long as the kidnapped person is deprived of his freedom.   It was not the purpose of the court to set forth the elements of kidnapping but simply to show that it was a continuing offense.   We therefore hold that the words "and continues until freedom is restored" as used in the above-mentioned cases do not describe a substantive element of the offense
                

Jefferies next contends that his prosecution was barred by the doctrine of collateral estoppel. He first states that he pleaded guilty and was convicted of willful abandonment of the Caldwell child. S.C.Code Ann. § 20-7-80 (1976) provides:

It shall be unlawful for any parent, male or female, or any other person legally responsible for the care and support of a minor child under the age of sixteen years to wilfully abandon such child, as provided in § 20-7-1570. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished within the discretion of the circuit court.

Jefferies then argues that when he pleaded guilty in Newberry to the crime of willful abandonment of a child, that there had been a judicial finding that (1) he was "legally responsible" for the Caldwell child and (2) since there was a legal determination that he was legally responsible for the Caldwell child, the State was collaterally estopped from asserting that he unlawfully seized the child. The doctrine of collateral estoppel does not preclude a subsequent prosecution for a separate offense where the prior conviction was based upon the defendant's plea of guilty. Jones v. State, 502 S.W.2d 164 (Tex.Crim.App.1973); State v. Popishel, 218 N.W.2d 602 (Iowa 1974).

Moreover, our Supreme Court has abolished the rule prohibiting inconsistent verdicts. State v. Alexander, --- S.C. ----, 401 S.E.2d 146 (1991).

II.

We hold that if the trial court erred in refusing to charge that intent is an element of kidnapping, the error was harmless.

The defendant submitted numerous requests to charge; several of which related to the argument that the State must prove the element of intent in order to prove the crime of kidnapping. The trial judge refused these requests.

The trial judge charged the kidnapping statute thusly:

The criminal act of kidnapping is set forth under Section 16-3-910 of the South Carolina Code of Laws which provides: Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by means (sic) whatsoever without authority of law except when a minor is seized or...