State v. Odom

Citation772 S.E.2d 149,412 S.C. 253
Decision Date22 April 2015
Docket NumberAppellate Case No. 2012–206186.,2012–206186.,Nos. 27517,s. 27517
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Anthony Clark ODOM, Appellant.

Brian D. McDaniel, of Beaufort, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, for Respondent.

Opinion

Justice KITTREDGE.

Anthony Clark Odom (Appellant) appeals his conviction for criminal solicitation of a minor. We affirm.

I.

Appellant's conviction for criminal solicitation of a minor1 followed a series of internet chat sessions with an undercover Westminster, South Carolina, city police officer2 posing as a fourteen-year-old girl. The internet exchanges occurred from May 4–6, 2006, in Oconee County, South Carolina. A jury found Appellant guilty of one count of criminal solicitation of a minor, based on the internet chats that occurred from May 4–5, 2006. Appellant was acquitted of the count involving a chat room conversation that allegedly occurred on May 6, 2006. The trial court sentenced Appellant to seven years' imprisonment, suspended upon the service of five years' probation, along with conditions including registering as a sex offender. Appellant appealed his conviction, and the Court certified the case from the court of appeals pursuant to Rule 204(b), SCACR.

II.

“In criminal cases, the appellate court sits to review errors of law only.”State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Therefore, this Court is bound by the trial court's factual findings unless the appellant can demonstrate that the trial court's conclusions either lack evidentiary support or are controlled by an error of law. State v. Laney, 367 S.C. 639, 644, 627 S.E.2d 726, 729 (2006).

A.

Appellant argues that the officer posing as a fourteen-year-old girl must have a bond to be acting in his official capacity and therefore the trial court erred in refusing to instruct the jury on the law of bonding.3 We find no error.

First, there is no evidence that the undercover officer, Officer Patterson, was not bonded. Moreover, Officer Patterson was a municipal police officer with the Westminster City Police Department. State law does not mandate a bond requirement for full-time sworn (non-reserve) municipal police officers. Compare S.C.Code Ann. § 5–7–110 (Supp.2013) (containing no bond requirement for municipal police officers), with § 23–7–30 (Supp.2013) (requiring special state constables to file a bond before discharging his or her duties), and § 23–13–20 (Supp.2013) (requiring county deputy sheriffs to file a bond before discharging his or her duties), and § 23–27–70 (Supp.2013) (requiring deputy sheriffs of unincorporated areas to provide a bond before discharging his or her duties), and § 23–28–20 (requiring reserve police officers to provide a bond before discharging his or her duties). Therefore, had the trial judge instructed the jury on a bonding requirement, it would have been an erroneous instruction. We affirm on this issue.

B.

Appellant next assigns error to the trial court's refusal to dismiss the indictments due to vindictive prosecution. We find no error.

Initially, the State sought to indict Appellant for his conversations with an undercover officer in Spartanburg County.4 It was not the State's original intent to indict Appellant for his conversations with Officer Patterson in Oconee County that are the subject of this appeal. Rather, the AG's strategy was to try Appellant in Spartanburg County on other similar charges, and use the evidence gathered in the Oconee investigation as “prior bad acts” evidence5 in the Spartanburg trial.

Appellant was indicted in Spartanburg County on June 22, 2006. During pre-trial motions, the court suppressed all of the evidence obtained by the ICAC Task Force pursuant to 18 U.S.C. §§ 2703(d) (stating requirements for court orders to procure stored electronic communications) and 3127(2)(B) (2006) (permitting state criminal courts to “enter orders authorizing the use of a pen register or a trap and trace device”).6 The State appealed this ruling, and on March 30, 2009, this Court reversed. See State v. Odom, 382 S.C. 144, 676 S.E.2d 124 (2009).7 The State planned to proceed with the Spartanburg trial in August 2009.8

In June 2009, Officer Patterson, lead investigator in the Oconee County case, was dismissed from the police department. Officer Patterson was arrested in connection with a dispute with his ex-wife, a charge that was ultimately dismissed. Because the State planned to use evidence from the Oconee investigation in the Spartanburg trial, Appellant's defense counsel in that trial, James Huff, attempted to subpoena Patterson's personnel records, including his arrest records.

Before the Spartanburg trial began, the State notified Appellant that it planned to seek separate indictments in Oconee County. The Spartanburg trial began on February 22, 2010, and resulted in a mistrial due to a hung jury on March 2, 2010.

On April 12, 2010, a grand jury true billed the indictments in Oconee County. Appellant asserted that the State chose to prosecute him on the Oconee County charges in retaliation for counsel Huff's attempts to obtain the Patterson records in the Spartanburg trial.

The trial court held a pre-trial hearing on Appellant's vindictive prosecution motion. At the hearing, Huff stated that on February 16, 2010, he spoke to lead prosecutor Megan Wines on the telephone regarding the Patterson arrest records, during which Wines told Huff that she had instructed Patterson's criminal defense attorney to refuse to relinquish the records to Huff because she did not believe that Huff had the authority to subpoena the information. Wines also indicated that she was frustrated by Huff's pursuit of these records.

Huff further stated that he again discussed the matter of the records with Wines two days later. Huff stated that Wines again indicated that she was unhappy with him for pursuing the Patterson arrest records because she felt they were irrelevant to the Spartanburg charges. Huff related that, as a consequence of his pursuit of the records, Wines told him, “Fine. We'll just indict [Appellant] in Oconee.” Thus, Huff believed that the AG belatedly chose to indict Appellant in Oconee because Huff subpoenaed Patterson's records in the Spartanburg trial. According to Huff, from the time of Appellant's arrest until the second conversation with Wines, he received no indication from the AG's office that the AG planned to prosecute Appellant in Oconee County.

In contrast, Wines stated that she initially thought to use the Oconee charges as Lyle evidence in the Spartanburg trial in furtherance of the trial strategy devised by her predecessor, Solicitor Stumbo. However, prior to the call of the case in Spartanburg, she changed her mind because she felt that using the charges in such a way was complicating matters in the Spartanburg trial, and that Patterson's arrest was “too collateral an issue” to deal with in the Spartanburg case. She was also worried that the subpoena issue would further delay the start of the Spartanburg trial, which had already been delayed numerous times, including for the appeal of the pre-trial evidentiary ruling. Therefore, Wines claimed she decided to pursue indictments in Oconee County, where Patterson led the investigation, and where his arrest records would be more directly relevant. She further testified that another change in strategy was to seek separate indictments for each conversation due to the mistrial in Spartanburg where a single indictment for all of the conversations resulted in confusion for the jury.

While Wines admitted that she was irritated with Huff for serving subpoenas that she did not believe he had the authority to pursue, Wines testified that her decision to seek the indictments in Oconee County ultimately came down to a change in trial strategy:

And I was frustrated that the matter had come to Judge Hayes ordering that we would have a hearing on attorney/client privilege with regard to Mark Patterson's records which were not instrumental to the Spartanburg trial.... There was gonna [sic] be potential Lyle evidence, and I don't know that we would have ever gotten it in.
So it made sense to me at that point that I believe separate crimes had been committed, it made sense to change trial strategy and to go ahead and have those sent to the Oconee County Grand Jury, which was done in May.

The trial court denied Appellant's motion, stating:

I don't find that there was established any actual malice or evidence that would rise to an implied malice or vindictiveness. I think under the circumstances the explanation given by the State was reasonable, and given the wide discretion given to prosecutors, the evidence doesn't amount to the level that would give rise to the draconian remedy of dismissing the warrants.

“It is a due process violation to punish a person for exercising a protected statutory or constitutional right.” State v. Fletcher, 322 S.C. 256, 259–60, 471 S.E.2d 702, 704 (Ct.App.1996) (citing United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ); see also United States v. Wilson, 262 F.3d 305, 314 (4th Cir.2001) (stating if a prosecutor “responds to a defendant's successful exercise of his right to appeal by bringing a more serious charge against him, he acts unconstitutionally”); United States v. Lanoue, 137 F.3d 656, 664–65 (1st Cir.1998) (stating that such retaliatory conduct amounts to vindictive prosecution and “violates a defendant's Fifth Amendment right to due process”). On a claim of vindictive prosecution, courts generally “review the [trial court's] legal conclusions de novo and its findings of fact for clear error.” United States v. Jarrett, 447 F.3d 520, 524 (7th Cir. 2006) (citing United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir.2003) ). “A claim of prosecutorial vindictiveness turns on the...

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    • United States State Supreme Court of South Carolina
    • May 6, 2020
    ...430 S.C. 32 in 1995,2 Lyle has been our primary resource for analyzing Rule 404(b) objections and rulings. See, e.g. , State v. Odom , 412 S.C. 253, 260 n.5, 772 S.E.2d 149, 152 n.5 (2015) (relying on Lyle for the interpretation of Rule 404(b), and stating Lyle "explain[s] the permissible u......
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    ...... Goodwin, 457 U.S. at 373)). Accordingly, Gadsden did. not carry his "heavy burden of proving" that the. imposition of LWOP "could not be justified as a proper. exercise of prosecutorial discretion." State v. Odom, 412 S.C. 253, 264, 772 S.E.2d 149, 154 (2015). (quoting United States v. Wilson, 262 F.3d 305, 316. (4th Cir. 2001)). Aside from implying that the timeline of. the State's notice of LWOP was suspect, Gadsden provided. no evidence at the pre-trial hearing that the State was. ......
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    • July 17, 2019
    ...of proving" that the imposition of LWOP "could not be justified as a proper exercise of prosecutorial discretion." State v. Odom, 412 S.C. 253, 264, 772 S.E.2d 149, 154 (2015) (quoting United States v. Wilson, 262 F.3d 305, 316 (4th Cir. 2001)). Aside from implying that the timeline of the ......
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    ...[1982]; United States v Murph, 452 Fed Appx 31 [2d Cir 2011]; United States v Sanders, 211 F3d 711, 716-719 [2d Cir 2000]; State v Odom, 412 SC 253, 261-265 [2015]; see also Bordenkircher v Hayes, 434 US 357 [1978]). Accordingly, the judgments of conviction, as amended, are affirmed. Marano......
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