State v. Reid

• Decision Date: 25 June 2009
• Docket Number: No. 4574.,4574.
• Citation: 383 S.C. 285,679 S.E.2d 194
• Parties: The STATE, Respondent, v. Jamey Allen REID, Appellant.
• Court: South Carolina Court of Appeals

679 S.E.2d 194

383 S.C. 285

The STATE, Respondent, v. Jamey Allen REID, Appellant.

No. 4574.

Court of Appeals of South Carolina.

Heard May 12, 2009.

Decided June 25, 2009.

Rehearing Denied July 22, 2009.

Appellate Defender Katherine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., of Columbia; and Solicitor Christina T. Adams, of Anderson, for Respondent.

PIEPER, J.:

Jamey Allen Reid appeals his convictions for attempted criminal sexual conduct (CSC) with a minor second degree and criminal solicitation of a minor. Reid contends the trial court erred in failing to grant a directed verdict of acquittal, arguing the State failed to prove Reid committed an overt act in furtherance of attempted CSC. Reid also claims the trial court erred in refusing to charge criminal solicitation of a minor as a lesser included offense of attempted CSC with a minor second degree. We affirm.

FACTS

On the night of January 9, 2006, Mark Patterson, a police officer for the Westminster Police Department and the Internet Crimes Against Children Task Force, conducted an undercover investigation on the internet. As part of the operation, Patterson entered a Yahoo chat room under the guise of a fourteen year old female, using the screen name "Skatergurl." Once logged in to the chat room, Patterson waited for requests to chat or to communicate via instant messenger from other individuals in the chat room. Software incorporated into Patterson's computer recorded the communications in real time.

At some point that night, Skatergurl received a message from a person with the screen name "Fine_Ass_Seminoles_Fan," (FASF) asking her where she lived. Skatergurl responded Oconee County. FASF then inquired of Skatergurl as to her name and age. Skatergurl responded with "Karen" and "fourteen." FASF said his name was Jamey. Thereafter, the following discussion occurred:

[FASF]: Well, what you looking for? ...

Sex, Love, Relationships, Friends, What?

[Skatergurl]: Laugh out loud. What's everybody looking for?

[FASF]: I asked. You tell me.

[Skatergurl]: I don't know. Fun stuff.

[FASF]: Sex? Love?

[Skatergurl]: L.O.L., Laugh out loud.

[FASF]: Honestly.

[Skatergurl]: What are you looking for?

[FASF]: Good Girl.

....

[FASF]: You need some loving? I'm asking?

[Skatergurl]: I don't know. Laugh out loud.

[FASF]: I do.

[Skatergurl]: Kewl.

The conversation turned to arranging a meeting place. FASF asked when and where they could meet. Skatergurl replied they could only meet at night and suggested Westminster Middle School. Skatergurl subsequently asked:

[Skatergurl]: Whatcha wanna do?

[FASF]: Go back to my apt. — I assume. Okay?

[Skatergurl]: Do what?

[FASF]: What you want to do. Tell me.

[Skatergurl]: I don't know.

[FASF]: Watch movie, I dunno, talk. Make love.

[Skatergurl]: Make love?

[FASF]: Yes. Wanna [] don't mean you have to.

[Skatergurl]: You don't care I am 14?

[FASF]: No. You?

FASF suggested meeting between 2:00 and 2:15 a.m. at the middle school that night. He told Skatergurl he would arrive in a black truck or a red car and he confirmed what Skatergurl would be wearing. Just before signing out of the chat room, FASF said, "we come here and make love, okay, snuggle, kiss, whatever, okay?" He then asked, "you wanna have sex, honestly," and Skatergurl responded, "I can try."

Officer Patterson called another Westminster police officer and they stationed their vehicles near the middle school. At approximately 2:30 a.m., a red Toyota Celica pulled into the parking lot. The officers stopped the car and arrested the driver, Jamey Allen Reid.

On February 7, 2006, an Oconee County grand jury indicted Reid for attempted CSC with a minor second degree and for criminal solicitation of a minor. A jury trial was held on March 7, 2007. At the close of the State's case, Reid's counsel moved for a directed verdict of acquittal. The court denied the motion. The jury convicted Reid on both charges. The trial court sentenced Reid to twenty years for the attempted CSC with a minor second degree conviction, which was suspended upon the service of ten years with five years probation. Reid was sentenced to ten years for the criminal solicitation of a minor, which was to run concurrently. This appeal followed.

ISSUES

I. Did the trial court err in refusing to direct a verdict of acquittal when the State failed to produce sufficient evidence for the charge of attempted CSC with a minor second degree?

II. Did the trial court err in refusing to find criminal solicitation of a minor was a lesser included offense of attempted CSC with a minor second degree?

STANDARD OF REVIEW

In criminal cases, appellate courts review errors of law only and are bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).

DISCUSSION

Reid first argues the trial court erred in refusing to direct a verdict of acquittal because the State failed to demonstrate Reid committed an overt act as required to prove guilt for attempted CSC with a minor second degree. We disagree.

In ruling on a motion for a directed verdict, a trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). "A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged." State v. McCombs, 368 S.C. 489, 493, 629 S.E.2d 361, 362-63 (2006). "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. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001). "If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find the case was properly submitted to the jury." State v. Cherry, 361 S.C. 588, 593-94, 606 S.E.2d 475, 478 (2004).

A person is guilty of CSC with a minor in the second degree if the actor engages in sexual battery with a victim who is fourteen years or less but who is at least eleven years of age. S.C.Code Ann. § 16-3-655(B) (Supp.2005).¹ "A person who commits the common law offense of attempt is punishable as for the principal offense." State v. Sutton, 340 S.C. 393, 396 n. 3, 532 S.E.2d 283, 285 n. 3 (2000); see also, S.C.Code Ann. § 16-1-80 (2003). Thus, the elements of attempted CSC with a minor in the second degree are: (1) an attempt; (2) to engage in a sexual battery; (3) with a victim; (4) who is fourteen years of age or less; (5) but who is at least eleven years of age. See S.C.Code Ann. § 16-3-655(B) (Supp.2005) (statutory elements of the object crime).

Generally, the mens rea of an attempt crime is one of specific intent such that the act constituting the attempt must be done with the intent to commit that particular crime. Sutton, 340 S.C. at 397, 532 S.E.2d at 285. "In the context of an attempt crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense." State v. Nesbitt, 346 S.C. 226, 231, 550 S.E.2d 864, 866 (Ct.App.2001) (internal quotes omitted). The State must prove the defendant's specific intent was accompanied by some overt act, beyond mere preparation, in furtherance of the intent. Id.; see also, State v. Sosbee, 371 S.C. 104, 109, 637 S.E.2d 571, 573 (Ct.App. 2006) (defining attempt, in a case categorizing criminal sexual conduct with a minor as a "most serious offense," as "an overt act that is done with the intent to commit a crime but that falls short of completing the crime.") (quoting Black's Law Dictionary 123 (7th ed.1999)).

Courts have struggled to determine the point at which conduct moves beyond the preparatory stage to the perpetration stage. A competition amongst policy considerations exists in this realm of the law. On the one hand, there exists a policy not to punish or convict innocent persons for evil or criminal thoughts alone;² on the other hand, a countervailing policy exists to allow law enforcement to prevent criminal conduct before it reaches the point of completion. South Carolina jurisprudence in the area of attempt law is sparse. Cases in South Carolina do not clearly establish any absolute guiding test for our trial courts to employ in resolution of this issue although Nesbitt utilizes the overt act discussion in State v. Quick, 199 S.C. 256, 19 S.E.2d 101 (1942), a case not dealing specifically with attempt.

Other state and federal courts have employed a variety of tests, some of which have been used in part or interchangeably by various courts demonstrating the difficulty in defining a universal test. These tests generally are either directed to how much has been done, or instead, how much remains to be done in furtherance of the object crime. Notwithstanding, one rule which does appear consistent throughout the country is the sequence of events need not reach the last proximate act necessary to completion, an original common law test. Wayne R. Lafave, 2 Subst. Crim. L. § 11.4 (2d ed.2008).

Case law additionally suggests varying proximity tests. One test credited to Justice Oliver Wendell Holmes, the common law "dangerous proximity" test, focuses on whether the act comes so close or near to the object crime that the danger of success is very great. Id.; see Joshua Dressler, Understanding Criminal Law 339 (5th ed.2009). Essentially, this test focuses upon how much remains to be done before the defendant would have succeeded in his goals; often, factors such as the nearness of danger, the substantiality of harm and the apprehension felt are considered. Dressler at 339 (referencing Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770 (1897)). Further, the more severe the object crime, the less close the...