State v. Parker

• Decision Date: 29 January 2001
• Docket Number: No. 3290.,3290.
• Citation: 344 S.C. 250,543 S.E.2d 255
• Parties: The STATE, Respondent, v. Sally Caulder PARKER and Timothy Kirby, Appellants.
• Court: South Carolina Court of Appeals

344 S.C. 250

543 S.E.2d 255

The STATE, Respondent, v. Sally Caulder PARKER and Timothy Kirby, Appellants.

No. 3290.

Court of Appeals of South Carolina.

Heard November 8, 2000.

Decided January 29, 2001.

Rehearing Denied March 12, 2001.

Assistant Appellate Defender Katherine Carruth Link, of SC Office of Appellate Defense, of Columbia, for appellants.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Robert Bogan, all of Columbia; and Solicitor Jay E. Hodge, Jr., of Darlington, for respondent.

CURETON, Judge.

In this criminal action, Timothy Kirby and Sally C. Parker appeal from their grand larceny convictions on the ground that the trial court lacked the requisite subject matter jurisdiction.¹ We agree and vacate the convictions.

FACTS AND PROCEDURAL HISTORY

The Marlboro County grand jury indicted Kirby and Parker on a single count of armed robbery for perpetrating a sham robbery of Boulevard Express, a local convenience store, on November 2, 1997. The crime netted the pair $1,192.00 in currency and two pistols. Kirby was also indicted for contributing to the delinquency of a minor because he arranged to have Sedrick Alford, a juvenile acquaintance, participate in the crime.

On the day in question, Kirby approached Alford and asked if he would like to make some money. Alford agreed and the pair traveled to Boulevard Express at approximately 5:00 p.m. Kirby left Alford at a nearby fast-food restaurant while he entered the convenience store. Therein, Kirby spoke with Parker as she worked. Kirby later revealed to Alford the plan to stage an armed robbery of the store later that evening while Parker was still working. The plan called for Alford to enter the store alone wearing a mask and carrying a pistol, both provided by Kirby, and demand money and a pistol from Parker, who would fully cooperate.

Alford carried out the plan at approximately 7:00 p.m. Parker aided Alford during the sham robbery by retrieving money from the store's safe and voluntarily showing him where the store's firearms were secreted behind the sales counter. Alford received $60 and a new pair of tennis shoes for his participation in the crime.

While investigating the apparent armed robbery, police received a tip which implicated Alford. On November 3, 1997, Alford was questioned by police and freely confessed his involvement in the sham robbery. He also revealed Kirby and Parker's involvement.

Based on Alford's confession, the police interviewed Parker. Although she admitted to having recognized Alford during the robbery, she denied any participation in it and claimed to have concealed Alford's identity from police in order to protect him. She did not testify at trial. Kirby testified and denied any involvement in the crime.

At the end of the state's case, the trial court directed a verdict for the defendants stating:

[this] is clearly a grand larceny case. I grant your motion as to armed robbery. I grant it as to robbery. But I will charge a less[e]r included offense of larceny which is the taking of the property of another with the intent of depriving the owner permanently thereof in the amount greater than $1,000. (emphasis added).

No one objected to the ruling. The jury found the pair guilty of grand larceny. This appeal followed.

LAW/ANALYSIS

Parker and Kirby argue the trial court lacked subject matter jurisdiction to convict them of grand larceny because it is not a lesser-included offense of the charged offense of armed robbery. We agree.

I.

Issues involving subject matter jurisdiction may be raised at anytime, including for the first time on appeal. Weinhauer v. State, 334 S.C. 327, 513 S.E.2d 840 (1999). Therefore, we consider the trial court's jurisdiction to try Parker and Kirby for grand larceny despite the lack of a ruling by the trial court on the issue.

A trial court acquires subject matter jurisdiction to hear a criminal case by way of a legally sufficient indictment or a valid waiver thereof. State v. Johnston, 333 S.C. 459, 510 S.E.2d 423 (1999). The scope of the jurisdiction conferred by an indictment is limited to the charged offense and any lesser-included offenses. State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993); State v. Tyndall, 336 S.C. 8, 518 S.E.2d 278 (Ct.App. 1999). Distinct offenses may be charged in separate counts of the same indictment. State v. Jones, 325 S.C. 310, 479 S.E.2d 517 (Ct.App.1996)(citing State v. Whitener, 228 S.C. 244, 89 S.E.2d 701 (1955)). However, two separate offenses cannot, ordinarily, be charged in a single-count indictment unless one is a lesser-included offense of the other. State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974).

An indictment sufficiently charges a particular offense when "it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend." Locke v. State, 341 S.C. 54, 56, 533 S.E.2d 324, 325 (2000) (citing Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998)).² An indictment must: (1) enumerate all the elements of the charged offense, regardless of whether it is a statutory or common law offense, and (2) recite the factual circumstances under which the offense occurred. See S.C.Code Ann. § 17-19-20 (1985); State v. Evans, 322 S.C. 78, 470 S.E.2d 97 (1996). Our supreme court has instructed us to apply "the indictment sufficiency test[ ] ... with a practical eye" to determine if the defendant was prejudiced by the content of the indictment. State v. Adams, 277 S.C. 115, 125, 283 S.E.2d 582, 587 (1981), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)

.

The indictment sub judice appears to be sufficient as the textual portion of the indictment sets forth the elements of both armed robbery and grand larceny³ while also providing an adequate factual basis for the offenses.⁴ However, separate offenses cannot be charged in a single-count indictment unless one is a lesser-included offense of the other. Fennell, 263 S.C. at 219,209 S.E.2d at 434. Scrutinizing the indictment with a practical eye, we conclude Kirby and Parker were prejudiced because they faced the charge of armed robbery at trial, but were forced at the end of the State's case to face the separate offense of grand larceny.

II.

Because grand larceny was neither sufficiently charged by the single-count indictment nor waived by the defendants, the only possible source of jurisdiction upon which the trial court could have continued to try Parker and Kirby is grand larceny's status as a lesser-included offense of armed robbery. "The test for determining if a crime is a lesser included offense is whether the greater of the two offenses includes all the elements of the lesser offense." State v. McFadden, 342 S.C. 629, 632, 539 S.E.2d 387, 389 (2000); see also Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998)

. If, under any circumstances, a person can commit the greater offense without being guilty of the purported lesser offense, then the latter is not a lesser-included offense. Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000).

In State v. Lawson, our supreme court, citing State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979), vacated Lawson's grand larceny sentence, recognizing Lawson's larceny as a lesser-included offense of robbery.⁵Lawson, 279 S.C. 266, 305 S.E.2d 249 (1983). See also State v. Pressley, 288 S.C. 128, 341 S.E.2d 626 (1986) (declining to overrule or modify Lawson). The Court in Brown recognized larceny as an element of common law robbery. This suggests that the Court in Lawson compared the common law elements of robbery and grand larceny to determine the latter's status as a lesser-included offense. However, statutory enactments involving larceny after the publication of Lawson have affected the status of grand larceny as a lesser-included offense of armed robbery.

"At common law every simple larceny, whatever the value of the property stolen, was a felony...." State v. Gray, 14 Rich. 174, 175 (1867). However, common law larceny recognized two separate punishments based on the value of the goods stolen. Id. "If the value of the property was not above twelve pence, the theft constituted the offence known as petit larceny" and the convicted offender would be sentenced to either a term of imprisonment or a whipping. Id. A theft greater than twelve pence was considered grand larceny "and was punished with death, though with benefit of clergy." Id. Thus, the common law regarded the petit/grand larceny distinction as merely a sentencing mechanism rather than an element of the offense. See 36 C.J. Larceny § 224 (1924) (recognizing petit and grand larceny as merely two separate "degrees" of larceny, not elements of the offense).

Common law petit larceny became a statutory offense after the enactment of an 1866 statute which reclassified the offense as a misdemeanor and established a twenty dollar threshold. Id. It has remained a statutory offense since 1866 and has changed little to this day.⁶ The enactment of the petit larceny statute did not impliedly convert grand larceny into a similar statutory crime. See State v. Prince, 316 S.C. 57, 66, 447 S.E.2d 177, 182 (1993)

("Common law offenses are not abrogated simply because there is a statutory offense proscribing similar conduct. Rather, it is presumed that no change in common law is intended unless the Legislature explicitly indicates such an intention by language in the statute.") (citations omitted).

Grand larceny remained a common law offense until 1993 when the legislature amended the petit larceny statute to add a statutory definition of grand larceny.⁷ "Larceny of goods ... valued in excess of one thousand dollars is grand larceny" and a felony. S.C.Code Ann. § 16-13-30(B) (Supp. 2000); see also Coakley v. Tidewater Constr. Corp., 194 S.C. 284, 9 S.E.2d 724 (1940) (requiring a clear legislative intent to change the common law). As...