State v. Massey

• Decision Date: 10 June 2020
• Docket Number: Opinion No. 27981,Appellate Case No. 2019-000842
• Citation: 844 S.E.2d 667,430 S.C. 349
• Court: South Carolina Supreme Court
• Parties: The STATE, Petitioner, v. John Kenneth MASSEY Jr., Respondent.

430 S.C. 349

844 S.E.2d 667

The STATE, Petitioner,

v.John Kenneth MASSEY Jr., Respondent.

Appellate Case No. 2019-000842

Opinion No. 27981

Supreme Court of South Carolina.

Heard March 11, 2020

Filed June 10, 2020

Attorney General Alan Wilson, Senior Assistant Deputy Attorney General Megan Harrigan Jameson, and Senior Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor Kevin S. Brackett, of York, for Petitioner.

Appellate Defender David Alexander, of Columbia, for Respondent.

CHIEF JUSTICE BEATTY :

The State indicted John Kenneth Massey Jr. ("Massey") for first-degree burglary, grand larceny, and criminal conspiracy. The circuit court granted a defense motion to quash the indictment for first-degree burglary on the basis the premises entered did not qualify as a dwelling. The court of appeals affirmed. State v. Massey , 426 S.C. 90, 825 S.E.2d 717 (Ct. App. 2019). We granted the State's petition for a writ of certiorari and now reverse and remand.

I. FACTS

This case has an unusual procedural history that dictates our result. The indictment for first-degree burglary against Massey alleged as follows:

The Defendant, John Kenneth Massey Jr., did in York County, South Carolina, on or about January 12, 2014, while acting in concert with another person, willfully and unlawfully enter the dwelling of Kristopher Callahan, when he entered without consent the outbuilding appurtenant to and within 200 yards of the dwelling house establishment of Kristopher Callahan, all located at [redacted] in Rock Hill, South Carolina, without consent and with the intent to commit the crime of larceny therein and said entering and remaining did occur during the nighttime hours, all in violation of Section 16-11-311, Code of Laws of South Carolina (1976, as amended).

(Emphasis added.) Before the jury was sworn, defense counsel moved to quash the indictment, stating, "Your Honor, the indictment that the [S]tate has provided is correctly in line with the statute¹ but I would argue is faulty with regards to the facts of this case. " (Emphasis added.)

Defense counsel asserted the State had the burden of showing the outbuilding was both within 200 yards of and appurtenant to the victim's residence (based on South Carolina's definitional statutes).² Defense counsel maintained the building does not qualify as a dwelling for purposes of the first-degree burglary statute because it is not appurtenant to the residence of the burglary victim, Kristopher Callahan ("Callahan"). Defense counsel alleged the building is not appurtenant because it actually houses a business, so its use is not related to the residence, and it is on a separate parcel owned by another individual, stating "[a]t least [that is] what the county records indicate." Counsel submitted county tax records indicating the residence is located on a parcel owned by Callahan's parents, and the building is on a parcel owned by Callahan's uncle. The county records also show the residence and the building share a common driveway that provides the only access to an adjacent road.

The State opposed the motion, arguing the building is within 200 yards of and appurtenant to the victim's residence. The State pointed out South Carolina case law has long held that South Carolina's burglary statutes safeguard a person's right of possession, not ownership, so ownership of the burglarized property is not required. The State proffered the testimony of Callahan, who stated he lives with his parents and a family friend in the residence, and a red storage building is "roughly 45/48 feet" (i.e., no more than 16 yards) from the residence. Callahan testified the home and the storage building are both located on land once owned by his grandfather. When Callahan's parents got married, his grandfather gave them five acres of property to build a home. After Callahan's grandfather passed away, the land became his mother's, but it was never formally placed in her name. Rather, the property was simply treated as "family land" and the parties "left it in the farm name," which Callahan stated is held by his uncle, "who lives on the other side of [Callahan and his parents]."

Callahan also testified as to his use of the building. He explained the building was primarily used by himself and his father, and that he treated the building like a garage to store his personal items, such as four-wheelers (one of which was taken in the burglary), boats, beds, and tools. He acknowledged having some work items on the premises from a small waterproofing and grading business that he ran from the home, meeting other workers outside the building to travel to various job sites, and having a sign on the building. However, he stated all work was done at the job sites, and the sign was not visible from the road. Rather, the sign was from his sponsorship of the family friend at a rodeo event, and he kept it because it has his name on it. Callahan testified he did not handle the taxes on the building, but he thought it was taxed with the land on which it is situated.

The State asserted South Carolina law does not provide a precise definition of appurtenant in this context, but there is precedent stating a building can be devoted partially to a business use and still qualify as a dwelling. Defense counsel, in contrast, contended the precedent cited by the State applied when a single structure is used for both sleeping and business purposes, but the current situation is distinguishable because the building is a separate structure from the residence. Defense counsel argued that "practically and legally," the building is not appurtenant to the residence because it is used for a business and there are no legal rights running between the parcels; thus, all of the elements of a first-degree burglary offense were not established.

At the conclusion of the arguments, the circuit court asked the parties, "Does anybody suggest it's a factual question?" Defense counsel stated he did not believe it was factual. The State did not respond. The circuit court took the matter under advisement. The next morning, the circuit court asked the parties if they would like to be heard further. The State reiterated several of its arguments, noting under South Carolina's statutory law, if a building is within 200 yards of and appurtenant to a dwelling, it is itself a dwelling, and court precedent holds burglary is a crime against possession, not ownership, so it did not matter that the building "might" have been in the name of another person. The State maintained the building is used by Callahan to store items that do not "have anything to do with his business," so the building is appurtenant to the residence and constitutes a dwelling for purposes of a first-degree burglary charge.

The circuit court granted the motion to quash the indictment, finding the building is located on a separate piece of property that is taxed separately and titled in the name of a different owner, Callahan does not have an ownership interest in either of the properties, and no testimony was presented that anyone was sleeping in the building. The circuit court noted Callahan might own the land "one day, if it's family land," but "he doesn't right now." The circuit court observed that it had specifically asked the parties if they thought the case presented a factual question, and stated it believed this to be "a legal issue." The circuit court thereafter stated it did not believe the building is "appurtenant to the residence owned by the victim's parents, factually. " (Emphasis added.)

The State advised the circuit court that it wanted to place on the record that burglary is not a crime against ownership, "not who owns plats of lands," but that it understood the ruling and could not go forward with the trial. The circuit court noted it was not suggesting "that this is not a burglary," based on "all the facts being presented thus far," but a ruling that the offense was not shown to be first-degree burglary. The circuit court opined, however, that "there would be factually plenty to support a burglary-second indictment."

The State filed a post-trial motion under Rule 29, SCRCrimP, asserting the circuit court did not have the authority to quash the indictment because a motion to quash is appropriate only when there are defects apparent on the face of the indictment. The State also incorporated its prior arguments made at the hearing. In a written order, the circuit court summarily denied the State's motion: "The court holds the State's arguments to be without merit. The Defendant is alleged to have entered an out building that was used as a business on a separate piece of property from the victim's mother's home. Therefore, the State's motion is denied." The circuit court did not specifically address the State's challenge to a court's authority to quash a facially valid indictment, although it noted the State had advanced this argument in its Rule 29 motion.

The court of appeals affirmed. State v. Massey , 426 S.C. 90, 825 S.E.2d 717 (Ct. App. 2019). First, the court found the State's argument that the circuit court did not have the authority to dismiss a facially valid indictment was raised for the first time on appeal; therefore, any error was waived by the State and was not preserved for review. Id. at 95–96, 825 S.E.2d at 720.

Second, the court of appeals observed that "[a]pplying the plain language of section 16-11-10 establishes that the storage building is not a dwelling for the purposes of our first-degree burglary statute." Id. at 96, 825 S.E.2d at 720. The court found that "a storage building unattached to a residence and located on a separate parcel of land is not ‘usually considered as a necessary appendage of a dwelling house.’ " Id. at 96, 825 S.E.2d at 721 (quoting State v. Evans , 18 S.C. 137, 140 (1882) ). Here, the court found the storage building is "separate from Victim's dwelling" and appropriated to a distinct use, "as reflected by the commercial signage and...