State v. Morgan, No. 3577.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
Citation352 S.C. 359,574 S.E.2d 203
Decision Date09 December 2002
Docket NumberNo. 3577.
PartiesThe STATE, Respondent, v. David Scott MORGAN, Appellant.

352 S.C. 359
574 S.E.2d 203

The STATE, Respondent,
v.
David Scott MORGAN, Appellant

No. 3577.

Court of Appeals of South Carolina.

Heard November 5, 2002.

Decided December 9, 2002.


352 S.C. 362
Assistant Appellate Defender Tara S. Taggart, of Columbia, for appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.

ANDERSON, J.

David Scott Morgan was charged with criminal sexual conduct (CSC) with a minor, a violation of S.C.Code Ann. § 16-3-655(1) (1985). He was convicted and sentenced to fifteen years. Morgan's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel attached a petition to be relieved from representation, asserting there are no directly appealable

352 S.C. 363
issues of arguable merit. Morgan did not file a pro se response. After a thorough review of the record, in accordance with Anders and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991), this Court ordered the parties to address whether the trial court erred in denying Morgan's motion for a directed verdict on the charge of CSC with a minor. We affirm

FACTS/PROCEDURAL BACKGROUND

Detective Stephen Thompson of the Rock Hill Police Department took Morgan's six-year-old daughter (the victim) into emergency protective custody on August 30, 1999. On September 10, 1999, Department of Social Services investigators Tammy Boheler and a Ms. Kline1 drove the victim to an appointment with a psychologist. While en route, Kline asked the victim a series of questions about "good touching" and "bad touching." During the course of this conversation, the victim denied having ever been touched in her private areas. However, in a subsequent interview with Boheler, the victim complained of sexual assault by Morgan. As a result of the victim's allegations, Boheler contacted Detective Thompson, who met with the victim four days later. At that meeting, the victim again stated Morgan had sexually abused her. The next day, Morgan was arrested.

The York County Grand Jury indicted Morgan for criminal sexual conduct with a minor. The indictment alleged Morgan "perform[ed] cunnilingus upon his daughter" and "rubb[ed] his penis into her vaginal area."

Morgan exercised his right to a jury trial. The victim testified during the State's case-in-chief. She averred Morgan had "licked" her vagina with his tongue. The victim further related that Morgan had touched her vagina with his hand and his penis, but that Morgan did not "go inside" her with his penis. Nevertheless, the victim declared it had "hurt" when Morgan touched her with his penis. The victim stated Morgan referred to his "private part" as "his dick" and that it hurt when he touched her "private part" with "his dick." A

352 S.C. 364
physical examination of the victim revealed no genital abnormalities

At the conclusion of the State's case, Morgan moved for a directed verdict, contending conviction for CSC with a minor required evidence of intrusion or penetration and that no such evidence existed. The judge denied the motion. After testifying in his own defense, Morgan renewed his directed verdict motion, which the judge denied as to the cunnilingus allegation. However, the judge ruled he would not instruct the jury on the sexual intercourse charge because the State had not demonstrated there had been an "intrusion" by Morgan into the victim's vagina. Thus, the only issue for jury consideration was whether Morgan had committed sexual battery on the victim by performing cunnilingus on her.

The jury found Morgan guilty. The circuit judge sentenced Morgan to fifteen years.

ISSUE

Is the act of cunnilingus statutorily encapsulated as a separate and distinct act constituting sexual battery under S.C.Code Ann. § 16-3-651(h) (1985)?

STANDARD OF REVIEW

When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 (Ct.App.2002). On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State. State v. Walker, 349 S.C. 49, 562 S.E.2d 313 (2002); State v. Condrey, 349 S.C. 184, 562 S.E.2d 320 (Ct.App.2002). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this Court must find the case was properly submitted to the jury. State v. Harris, 351 S.C. 643, 572 S.E.2d 267 (2002); State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct.App.1999).

352 S.C. 365
LAW/ANALYSIS

Appellate counsel asserts Morgan was entitled to a directed verdict. We disagree.

I. "CUNNILINGUS" AS A SEPARATE AND DISTINCT ACT OF "SEXUAL BATTERY"

Citing § 16-3-651(h), Morgan's trial counsel argued, at the directed verdict stage, the State was required to prove an "intrusion" into the victim's vagina before obtaining a conviction against Morgan. According to counsel, "[w]hile the statute says that cunnilingus may be a sexual battery, that still does not obviate the need for intrusion." Counsel claimed no such "intrusion" occurred as a result of the cunnilingus being performed upon the victim. We disagree with Morgan's interpretation of § 16-3-651(h).

A. Statutory Authority: Sections 16-3-655(1) & 16-3-651(h)

Section 16-3-655(1) provides "[a] person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with [a] victim who is less than eleven years of age." S.C.Code Ann. § 16-3-655(1) (1985) (emphasis added). "Sexual battery" is statutorily defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes." S.C.Code Ann. § 16-3-651(h) (1985) (emphasis added).

B. Statutory Construction

Penal statutes are strictly construed against the State and in favor of the defendant. State v. Fowler, 322 S.C. 157, 470 S.E.2d 393 (Ct.App.1996). The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible. State v. Baucom, 340 S.C. 339, 531 S.E.2d 922 (2000); City of Camden v. Brassell, 326 S.C. 556, 486 S.E.2d 492 (Ct.App.1997). All rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language

352 S.C. 366
used, and that language must be construed in the light of the intended purpose of the statute. State v. Hudson, 336 S.C. 237, 519 S.E.2d 577 (Ct.App.1999). The determination of legislative intent is a matter of law. City of Sumter Police Dep't v. One (1) 1992 Blue Mazda Truck, 330 S.C. 371, 498 S.E.2d 894 (Ct.App.1998).

The legislature's intent should be ascertained primarily from the plain language of the statute. Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App.1996). Words must be given their plain and ordinary meaning without resorting to subtle or forced construction which limits or expands the statute's operation. Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996); City of Sumter Police Dep't, 330 S.C. at 375, 498 S.E.2d at 896. When faced with an undefined statutory term, the court must interpret the term in accord with its usual and customary meaning. Hudson, 336 S.C. at 246, 519 S.E.2d at 581.

The terms must be construed in context and their meaning determined by looking at the other terms used in the statute. Southern Mut. Church Ins. Co. v. South Carolina Windstorm & Hail Underwriting Ass'n, 306 S.C. 339, 412 S.E.2d 377 (1991). Courts should consider not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997); see also Stephen, 324 S.C. at 340, 478 S.E.2d at 77 (statutory provisions should be given reasonable and practical construction consistent with purpose and policy of entire act). In interpreting a statute, the language of the statute must be construed in a sense which...

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69 practice notes
  • In re Keeley, Interim Decision #3907
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 20 Octubre 2017
    ...State v. Higham, 865 A.2d 1040, 1049 (R.I. 2004); (21) South Carolina, S.C. Code Ann. § 16-3-651(h) (Law. Co-op. 1996); State v. Morgan, 574 S.E.2d 203, 209 (S.C. Ct. App. 2002); (22) South Dakota, S.D. Codified Laws § 22-22-2; (23) Tennessee, Tenn. Code Ann. § 39-13-501(7); State v. Marcum......
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • 1 Febrero 2008
    ...240, 242 (2002); Ray Bell Constr. Co. v. Sch. Dist. of Greenville County, 331 S.C. 19, 26, 501 S.E.2d 725, 729 (1998); State v. Morgan, 352 S.C. 359, 365-66, 574 S.E.2d 203, 206 (Ct.App.2002); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct.App.1999). "Once the legislature has m......
  • Coastal Conservation v. Dept. of Health, No. 4450.
    • United States
    • Court of Appeals of South Carolina
    • 23 Octubre 2008
    ...729 (1998); Thompson ex rel. Harvey, 377 S.C. at 156, 659 S.E.2d at 180-181; Bass, 365 S.C. at 469, 617 S.E.2d at 377; State v. Morgan, 352 S.C. 359, 365-66, 574 S.E.2d 203, 206 (Ct.App.2002); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct.App. The first inquiry in deciphering ......
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • 18 Mayo 2007
    ...to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Wilds, 355 S.C. at 274, 584 S.E.2d at 141; State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct.App.2002). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to pro......
  • Request a trial to view additional results
69 cases
  • In re Keeley, Interim Decision #3907
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 20 Octubre 2017
    ...State v. Higham, 865 A.2d 1040, 1049 (R.I. 2004); (21) South Carolina, S.C. Code Ann. § 16-3-651(h) (Law. Co-op. 1996); State v. Morgan, 574 S.E.2d 203, 209 (S.C. Ct. App. 2002); (22) South Dakota, S.D. Codified Laws § 22-22-2; (23) Tennessee, Tenn. Code Ann. § 39-13-501(7); State v. Marcum......
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • 1 Febrero 2008
    ...240, 242 (2002); Ray Bell Constr. Co. v. Sch. Dist. of Greenville County, 331 S.C. 19, 26, 501 S.E.2d 725, 729 (1998); State v. Morgan, 352 S.C. 359, 365-66, 574 S.E.2d 203, 206 (Ct.App.2002); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct.App.1999). "Once the legislature has m......
  • Coastal Conservation v. Dept. of Health, No. 4450.
    • United States
    • Court of Appeals of South Carolina
    • 23 Octubre 2008
    ...729 (1998); Thompson ex rel. Harvey, 377 S.C. at 156, 659 S.E.2d at 180-181; Bass, 365 S.C. at 469, 617 S.E.2d at 377; State v. Morgan, 352 S.C. 359, 365-66, 574 S.E.2d 203, 206 (Ct.App.2002); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct.App. The first inquiry in deciphering ......
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • 18 Mayo 2007
    ...to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Wilds, 355 S.C. at 274, 584 S.E.2d at 141; State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct.App.2002). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to pro......
  • Request a trial to view additional results

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