State v. Penny

• Decision Date: 17 February 2016
• Docket Number: Unpublished Opinion No. 2016-UP-065,Appellate Case No. 2013-001554
• Parties: The State, Respondent, v. Dennis M. Penny, II, Appellant.
• Court: South Carolina Court of Appeals

The State, Respondent, v. Dennis M. Penny, II, Appellant.

Appellate Case No. 2013-001554

Unpublished Opinion No. 2016-UP-065

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard November 10, 2015

February 17, 2016

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.

Appeal From Chesterfield County

Paul M. Burch, Circuit Court Judge

AFFIRMED

Appellate Defender Laura Ruth Baer, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Interim Senior Assistant Deputy Attorney General John Benjamin Aplin, Assistant Attorney General Mark Reynolds Farthing, and Assistant Attorney General Mary Williams Leddon, all of Columbia; and Solicitor William Benjamin Rogers, Jr., of Bennettsville, for Respondent.

PER CURIAM: Dennis M. Penny, II appeals his conviction for burglary in the second degree, arguing (1) the trial court should have directed a verdict of acquittal because the State did not present evidence that Penny entered the victim's dwelling without the victim's consent, (2) the trial court should have directed a verdict of acquittal because the State failed to present evidence that Penny intended to commit a crime within the victim's dwelling, and (3) the trial court should have suppressed evidence of Penny's flight following the issuance of an Amber Alert. We affirm.

1. We disagree with Penny's argument that the State failed to present evidence that he entered the victim's home without the victim's consent. Although the victim testified Penny would have been allowed to enter the residence if he had knocked on the door instead of forcing his way inside, this circumstance did not amount to unlimited consent. See State v. Singley, 392 S.C. 270, 276, 709 S.E.2d 603, 606 (2011) ("[O]ur burglary laws protect an interest separate and apart from ownership: the right to be safe and secure in one's home."); State v. Coffin, 331 S.C. 129, 132, 502 S.E.2d 98, 99 (1998) (affirming a conviction for burglary in the first degree and stating that, although the appellant had been a guest in the victim's home, the victim "was entitled to terminate appellant's lawful possession by evicting him" before he entered the home and fatally stabbed her); id. at 131, 502 S.E.2d at 99 (explaining further that "[i]t is undisputed [the victim] was a person in lawful possession and that she did not consent to appellant entering the mobile home at the time of the stabbings" (emphasis added)).

2. Penny further argues the trial court should have directed a verdict in his favor because the State did not offer either direct or circumstantial evidence of any crime that he intended to commit once inside the residence. We disagree. Penny correctly asserts a conviction for burglary in the second degree requires evidence that the defendant entered a dwelling with the intent to commit a crime therein. See S.C. Code Ann. § 16-11-312(A) (2003) ("A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein."); cf. State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000) ("First degree burglary requires evidence that the defendant entered a dwelling without consent and with intent to commit a crime in the dwelling."). However, contrary to Penny's contention that there was no evidence presented of any specific criminal act that he intended to commit while inside the residence, Penny's forcible entry into the victim's residence, which resulted in damage to both the storm door and the inside metal door, gave rise to an inference of his intent to commit a crime once he gained entry to the home. See McMillian v.State, 383 S.C. 480, 487, 680 S.E.2d 905, 908 (2009) (rejecting the petitioner's argument that his plea counsel erred in advising him that intent to commit a crime could be inferred from an act of trespass); id. ("Certainly, a jury would have been free to disbelieve McMillian's version of events and find that he had the intent to commit a crime based on his conduct at the time of [his trespass into the victims' residence]."); Pinckney v. State, 368 S.C. 502, 505, 629 S.E.2d 367, 369 (2006) ("[T]here is no requirement that the intent element is satisfied only by proving an intent to commit the specific crime that is charged in the indictment as an aggravating circumstance. The only requirement is that there be intent to commit any crime at the time of entry."); State v. Tuckness, 257 S.C. 295, 299, 185 S.E.2d 607, 608 (1971) ("Intent is seldom susceptible to proof by direct evidence and must ordinarily be proved by circumstantial evidence, that is, by facts and...