State v. Moody
| Decision Date | 12 June 2019 |
| Docket Number | 2019-UP-211 |
| Court | South Carolina Court of Appeals |
| Parties | The State, Respondent, v. Damon Ellis Moody, Appellant. Appellate Case No. 2014-001391 |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Heard March 9, 2017
Appeal From Florence County D. Craig Brown, Circuit Court Judge
Rose Mary Parham, of Parham Law Firm, LLC, of Florence, for Appellant.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General John Benjamin Aplin, and Senior Assistant Deputy Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Edgar Lewis Clements, III, of Florence, all for Respondent.
Damon Moody appeals his convictions for pointing and presenting a firearm, arguing the circuit court erred in (1) precluding Moody from cross-examining his mother-in-law about the dismissal of certain criminal charges; (2) precluding Moody from cross-examining one of the victims about a dismissed assault charge; (3) denying Moody immunity under the Protection of Persons and Property Act;[1] and (4) refusing to charge the jury on the defense of habitation. As we find any error was harmless, we affirm.
Moody and his mother-in-law, Tabitha Durant, live separately on a shared piece of property owned by Durant's father. Moody is married to one of Durant's daughters. The two mobile homes are arranged in an L-shape-the back door of Moody's home opens into a shared backyard, and Durant has a swimming pool beside her home. There is no fence between the homes or dividing the backyard.
On June 13, 2013, Jermichael Wright-who is engaged to Durant's other daughter- invited members of his basketball team and family, including his brother, Jermaine Wright, to Durant's home for a pool party and cookout. Several children attended, including Durant's three-year-old son and four-year-old grandson, a thirteen-year-old member of Jermichael's basketball team, and Jermichael's eleven and fourteen-year-old cousins. Jermichael also brought Sire his young pit bull. Sire was running around loose in the shared backyard during the party.
Jermichael and Jermaine (the Wrights) were cleaning the grill on Durant's patio when they heard gunshots; Moody was standing on his back porch firing a handgun into the ground. Children were in the pool, which was approximately fifteen yards from Moody's porch, and Sire was running toward the Wrights. Jermichael testified that when he heard Moody threaten to put a bullet in his "f****** dog's head," he told Moody not to "come out here talking like-talking like that in front of my family."
Moody walked over to Durant's patio to address the dog situation, and Jermaine pushed him back, away from the pool area. Moody then returned to his own home and emerged with his dog, Sniper. Another altercation with the Wrights ensued. Although Moody admitted he pulled a different handgun on the Wrights at that point, his testimony about the events leading up to the fracas differed from the Wrights' accounts. According to Moody, his dogs woke him after he had worked a night shift, so he let them go outside.[2] Shortly thereafter, Moody looked outside and saw Sire snarling beside the kennels and trying to bite at the fence near one of his Belgian Malinois. Sire had caused problems on at least five prior occasions on Moody's property. Moody admitted he grabbed his .22 and fired several shots into the ground from his porch to scare Sire away because even after Moody yelled at him, Sire continued to bite at a female dog.[3] Moody further admitted he yelled at Jermichael to come get his "f****** dog," but he denied ever threatening to shoot Sire.
Moody testified that even after he went back inside his own home Jermichael continued to yell at him from Durant's patio. So, he put away his gun and walked over to the patio to discuss the situation. Moody claimed that while he was standing on Durant's patio steps, the Wrights became aggressive with him and "got in his face." Moody again told Jermichael to control Sire because the dog continued to cause problems despite his previous complaints to both Jermichael and Durant.[4] At this point, Jermichael told Moody not to "disrespect" him in front of his family and moved closer to him. Moody admitted he made the first physical contact by using his forearm to move Jermichael back in an effort to create some distance. Jermaine then pushed Moody off the patio. Moody got up and told Jermichael he did not want to have another conversation about Sire. He then heard Jermaine say "let's just knock this motherf***** out," but Jermichael told Jermaine "no" and told Moody to go on back home.
As Moody returned to his home, he noticed Sniper was "very bad off" due to the heat and activity, so he got a leash and took Sniper out of the kennel to cool off. In addition to getting the leash, Moody put a .380 in his pocket for protection. When Moody started to walk Sniper from his kennel to a water hose, he heard Jermichael say "if you bring that dog over here, I'm going to put one in your f*****g head and one in that dog's head." Moody claimed Jermichael then made a "furtive movement like he was concealing something in his back and his hand actually went behind him." Moody responded by drawing his weapon and shouting, [5] Moody testified he would not have pulled his gun had he not observed Jermichael make the "furtive" movement after threatening to shoot both Moody and his dog. Moody did not deny pointing his gun at the Wrights and claimed he was about two feet from his own home when this occurred. Moody further testified he had previously seen Jermichael with a gun at Durant's home.[6]
The partygoers' stories differ. Jermichael testified that when Moody approached during their first encounter, Moody stood on the patio steps with his head level with Jermichael's chest and "got up in [Jermichael]'s face, and [Moody] was like, what are you going to do?" Although Jermaine admitted he told Moody to get out of his brother's face and pushed him off the steps, he testified he only pushed Moody after "[Moody] got so close that his nose was touching [Jermaine's] nose." Jermichael testified that at this point, Jermaine and Moody were "chest bumping" around the yard. Jermichael stated "[T]he next thing you know, [Moody] was like, all right I got something for y'all, y'all wait right here." Moody then went back to his home, and the Wrights returned to Durant's patio.
About three minutes later, Jermichael saw Moody walk outside with a leash over his shoulder and go to his kennels where he kept the four police dogs. Moody put Sniper on the leash and walked toward the patio. Jermichael recognized Sniper as an "attack dog" from video recordings of Sniper's training and believed the dog was vicious. When Moody reached the side of the pool closest to Moody's home, he pulled a different gun-not the .22 he used earlier to scare Sire. The second gun had a red laser pointer, which Moody pointed at the Wrights. Jermichael admitted Moody was still on his own property when he pointed the gun at them and that he and his brother were "trash talking Moody." However, he denied that either he or his brother told Moody they were "going to put a bullet between your dog's eyes and your eyes."
Durant witnessed the initial confrontation between Moody and the Wrights but claimed she did not see anyone push Moody off the porch. She testified that when Moody returned outside and walked back to her porch, she heard Moody tell a teenager "he would kill him and his cousins." She also stated she never heard the Wrights, or anyone at her home threaten Moody.
After Moody pointed the handgun, Jermaine told everyone in the pool to go inside while Jermichael called 911. During the 911 call, Jermichael said he could see Moody, still holding the gun, talking to Durant while walking back and forth in front of her patio. Jermichael asked the 911 operator to send the police because Moody "was still outside and there's kids around the pool and he['s] got a gun out there with a big dog like he's going to sic the dog on somebody."[7] Moody returned to his home after Durant told him the police had been called.
The Florence County Sheriff's Office (FCSO) responded to the scene, interviewed witnesses, and filed reports. Although officers did not arrest Moody that day, they arrested Durant's husband (Husband) for interfering with their investigation. The South Carolina Law Enforcement Division (SLED) took over the continued investigation due to Moody's employment with local law enforcement.
Forty-five minutes after Durant's initial interview with SLED agent John Follin, Durant called Follin to report that Jermichael was known to carry a gun. At trial, Durant claimed she only made this call because "[she] talked to Moody and he-it was brought to [her] attention that he felt like it was a need." She also testified in a pretrial hearing that about two months before the trial, Moody told Durant if he went to jail, they were all "going down."
Pretrial Moody questioned Durant about her recent arrest for breach of trust. Durant was charged with felony conspiracy to commit insurance fraud and breach of trust with fraudulent intent ($2, 000-$10, 000) for her involvement with Husband's filing of a false report with his insurance company. According to Moody, the FCSO arrested Durant after Moody provided them with two recorded conversations in which Durant admitted to the fraud. Although Durant was charged in December 2012, and claimed she completed pretrial intervention (PTI) in February 2013, she did not receive a letter releasing her from PTI until the week...
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