State v. Logan

• Citation: 747 S.E.2d 444,405 S.C. 83
• Decision Date: 14 August 2013
• Docket Number: No. 27296.,27296.
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Clarence LOGAN, Jr., Appellant. Appellate Case No. 2011–194406.

405 S.C. 83

747 S.E.2d 444

The STATE, Respondent,

v.Clarence LOGAN, Jr., Appellant.

Appellate Case No. 2011–194406.

No. 27296.

Supreme Court of South Carolina.

Heard April 2, 2013.

Decided Aug. 14, 2013.

Appellate Defender LaNelle Cantey DuRant, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, of Columbia, for Respondent.

Chief Justice TOAL.

Clarence Logan (Appellant) challenges his conviction for attempted criminal sexual misconduct in the first degree (CSC–First). Appellant argues that the trial court erred in providing the circumstantial evidence charge this Court articulated in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997). According to Appellant, this charge is no longer valid in light of this Court's decisions in State v. Bostick, 392 S.C. 134, 708 S.E.2d 774 (2011) and State v. Odems, 395 S.C. 582, 720 S.E.2d 48 (2011). We affirm Appellant's conviction.

FACTUAL/PROCEDURAL BACKGROUND

On May 10, 2010, the Charleston County Grand Jury indicted Appellant for attempted CSC–First in violation of section 16–3–652 of the South Carolina Code and “strong-arm” robbery (SAR) in violation of section 16–11–325 of the South Carolina Code.¹S.C.Code Ann. §§ 16–3–652, 16–11–325 (2003). Appellant proceeded to trial on June 8, 2011.

At trial, Jarvia O'Neal testified that in the early morning of February 4, 2010, at approximately 1:45 a.m., O'Neal went to the Lovey Dovey, “a social club where you can eat crabs,” with two friends, Andrea Bell and Virgil Washington. O'Neal testified that at some point during her visit Appellant approached her and made unwanted sexual advances. Appellant appeared heavily intoxicated. O'Neal rebuffed Appellant's advances, and then made her way to the restroom. As O'Neal entered the restroom, Appellant forced his way inside with her. According to O'Neal, Appellant proceeded to choke her, and attempted to sexually assault her. Appellant also punched O'Neal several times. O'Neal fought back in an attempt to fend off Appellant's attack. O'Neal then kicked Appellant between his legs, and was only then able to remove herself from the situation. During the attack, Appellant removed O'Neal's driver's license and twenty dollars from her purse. Appellant exited the restroom shortly after O'Neal kicked him, and O'Neal departed the restroom after Appellant. O'Neal testified that she did not notify police or go to the hospital immediately following the attack because she was afraid. Later, on the afternoon of February 4, O'Neal visited the hospital to receive treatment for her injuries. O'Neal provided the police with a statement during her hospital visit.

O'Neal then contacted Aaron Green, the Lovey Dovey's manager. Green informed O'Neal that while he did not personally know Appellant, he knew Appellant used the nickname “Blackout,” and owned a blue Thunderbird. O'Neal supplied police with this information. O'Neal noticed a blue Thunderbird near her home on several occasions following the attack, and on at least one of those occasions, O'Neal recognized Appellant as the vehicle's driver. O'Neal notified police on each occasion. Police contacted O'Neal and asked her to choose Appellant's photograph out of a group of six photographs. O'Neal chose Appellant.²

Andrea Bell testified that O'Neal excused herself to the restroom at some point during their visit to the Lovey Dovey. Bell stated that a short time later she observed a “young” man, wearing a white t-shirt, walking away from the bathroom, and “pulling up his pants.” ³ Bell then overheard someone inquire whether “something going [sic] on in the bathroom,” prompting Bell to walk over to the restroom. Bell described O'Neal's demeanor, stating, “All I see was she was upset, and her face was swollen. Like I think it was her eye and her lip that were swollen.” Bell testified that she could not identify Appellant as the man she observed coming out of the bathroom that night. Bell assisted O'Neal with her injuries, but did not discuss anything that might have happened between O'Neal and Appellant.

Virgil Washington testified that he knew O'Neal, but did not consider her a friend. Washington testified that on the night of the attack he merely provided transportation for O'Neal at the request of his friend, Aaron Green. According to Washington, he noticed a commotion near the restroom, and when O'Neal exited the restroom she “was highly upset.” Washington also observed blood on O'Neal's face. O'Neal mentioned to Washington that Appellant hit her. Washington testified that in addition to the blood on O'Neal's face, he later observed at least two cuts to her face.

Aaron Green testified that he observed Appellant and O'Neal conversing on the night of the incident. Later, Green observed Appellant and O'Neal exit from the same bathroom, and Appellant stated that he was looking for his cell phone. Green testified that O'Neal told him she and Appellant had a “confrontation,” but that she did not want Green to notify police. Green stated he observed O'Neal's hair was “wild” and O'Neal had a bruise and some bleeding on her face. In the days following the incident, O'Neal disclosed to Green that Appellant attempted to sexually assault her, and Green provided O'Neal with a description of Appellant's vehicle.

Alex Gray, a patrolman with the North Charleston Police Department responded to Roper Hospital where O'Neal sought treatment following the attack. Gray testified that O'Neal had a black eye, a laceration across the bridge of her nose and the left side of her face, cuts on the inside of her mouth, and a knot on the right side of her head. Gray testified that O'Neal provided him with a description of the incident, as well as Appellant's nickname and physical description.⁴ At the conclusion of the State's case, Appellant's trial counsel moved for a directed verdict, stating, “I would move for a directed verdict pursuant to I believe it's criminal Rule 19.” The trial court denied Appellant's motion. Following Appellant's decision not to testify, the trial court discussed jury instructions with the parties. Appellant's trial counsel raised an objection touching on the trial court's proposed circumstantial evidence charge, stating:

I have an objection to—I know it's not routine, but the now standard direct and circumstantial evidence charge, particularly the portion that says ... the law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence. I think that after our Supreme Court opinion in Bostick that came out, I want to say, earlier this year where the Supreme Court said that the trial court should have directed a verdict because the case was entirely circumstantial, they appealed to four different pieces of circumstantial evidence ... that line of cases, Shropp [Schrock]⁵ and Arnold [361 S.C. 386, 605 S.E.2d 529 (2004) ] and now Bostick, they are now dealing with this jury charge, so I guess what I'm asking is to argue against precedent to say that the standard charge, I think this is from Ripon [Grippon]⁶ that says that the direct and circumstantial evidence are equally—

The trial court interrupted the argument, stating, “I'm not familiar with the exact case you're referring to, but I usually on—there is a difference when it comes to directed verdict between direct and circumstantial evidence.” The trial court then acknowledged that circumstantial evidence had to be “substantial,” and that he was not sure that “they,” presumably this Court, “had changed that rule.” Appellant's trial counsel responded:

In case they want to, I have to give them the opportunity to do it, and I think the proposition—the law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence is no longer valid.

The trial court denied the motion, and then delivered the following instruction regarding direct and circumstantial evidence:

There are two types of evidence generally presented in a trial. There is direct evidence and circumstantial evidence. Direct evidence is testimony of a person who claims to have actual knowledge of a fact, such as an eyewitness, and this is evidence which immediately establishes the main fact to be proved. Circumstantial evidence is proof of a chain of facts and circumstances which indicate the existence of a fact, and this is evidence which immediately establishes collateral facts from which a main fact may be inferred. Circumstantial evidence is based on inference and not on personal knowledge or observation. The law makes absolutely no distinction between the weight or value to be given either direct or circumstantial evidence, nor is a greater degree of certainty required of circumstantial evidence than direct evidence. You should weigh all the evidence in this case, and, after weighing the testimony, if you are not convinced of the defendant's guilt beyond a reasonable doubt, you must find the defendant not guilty.

The jury found Appellant guilty of attempted CSC–First but not guilty of SAR. The trial court sentenced Appellant to ten years' imprisonment. On June 15, 2011, Appellant's trial counsel filed a notice of appeal. This Court certified the case for review pursuant to Rule 204(b), SCACR.

ISSUE PRESENTED

Did the trial court err in providing a circumstantial evidence jury instruction consistent with this Court's holding in Grippon?

STANDARD OF REVIEW

In reviewing jury charges for error, this Court considers the trial court's jury charge as a whole and in light of the evidence and issues presented at trial. State v. Brandt, 393 S.C. 526, 549, 713 S.E.2d 591, 604 (2011). A jury charge is correct if, when read as a whole, the charge adequately covers the law. Id. “A jury charge that is substantially correct and covers the law does not require reversal.” Id. (citing State v. Foust, 325 S.C. 12, 16, 479 S.E.2d 50, 52 (1996)).

LAW/ANALYSIS

Appellant argues...