State v. Rosemond
| Decision Date | 11 February 2002 |
| Docket Number | No. 3445.,3445. |
| Citation | 560 S.E.2d 636,348 S.C. 621 |
| Parties | The STATE, Respondent, v. Jerry ROSEMOND, Appellant. |
| Court | South Carolina Court of Appeals |
Assistant Appellate Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Senior Assistant Attorney General Charles H. Richardson, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for respondent.
Jerry Rosemond was convicted of strong arm robbery, resisting arrest, and assault and battery with intent to kill (ABIK). He appeals his conviction for strong arm robbery, arguing the trial court erred in failing to grant a directed verdict because there was no evidence he committed a larceny by using violence or intimidation. We affirm.
This appeal arises out of the alleged robbery of the Sphinx filling station, located on Pendleton Street in Greenville, South Carolina, on November 18, 1997. A witness to the event was Barbara Murray, a cashier working the second shift from 2:00 p.m. to 10:00 p.m.
According to Murray, a man walked into the store around 9:00 p.m. and went directly to the restroom. He stayed in the restroom for approximately five minutes and then came out and walked straight to the counter. Murray was just a few feet away on the other side of the cash register, sweeping in order to get ready for the next shift to take over.
Murray testified she did not think anything was unusual at first when the man walked up to the counter, as customers did that all the time, but she became frightened when he walked behind the counter:
(emphasis added).
Murray testified the man proceeded to flip the cash register up in the air and slam it to the ground while she stood a few feet away:
(emphasis added).
Murray explained she was frightened by the man's actions in slamming the cash register to the ground:
(emphasis added).
Murray stated she ran outside and saw the perpetrator running out of the side door and by the store. Murray acknowledged she was intimidated by the man:
Murray identified Rosemond at trial as the perpetrator. In contrast, Rosemond admitted he walked into the Sphinx on the evening in question, but testified he turned around and walked back out because he did not see anyone in the store. Rosemond stated he was arrested as he walked down the street. He denied committing the robbery or attacking the arresting officers.
Defense counsel moved for a directed verdict on the strong arm robbery charge, arguing there was no evidence that Rosemond acted with force or intimidation based on Murray's testimony that the perpetrator did not brandish a weapon and did not make any threats or comments directly towards her or anyone else. The trial court denied the motion.
Rosemond was convicted of strong arm robbery, resisting arrest, and ABIK. He received concurrent sentences of six years in prison on each of the charges. In addition, he was ordered to successfully complete a drug diversion program. Rosemond appeals his conviction for strong arm robbery.
"A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged." State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001) (citation omitted). "On a motion for a directed verdict in a criminal case, the trial court is concerned with the existence or non-existence of evidence, not its weight." State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000). "If the State presents any evidence which reasonably tends to prove the defendant's guilt, or from which the defendant's guilt could be fairly and logically deduced, the case must go to the jury." Id.
"On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State." McHoney, 344 S.C. at 97, 544 S.E.2d at 36 (citation omitted). "If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury." Id. (citation omitted).
Rosemond contends the trial court erred in denying his motion for a directed verdict on the charge of strong arm robbery because there was no evidence from which a jury could find that he committed a larceny with force or intimidation. We disagree.
Initially, a question arises as to whether this issue is preserved for review as defense counsel did not specifically renew his directed verdict motion on the strong arm robbery charge at the close of all the evidence.
When the prosecution rested, defense counsel first stated he "would like to renew all of [his] previous objections." Defense counsel next moved for a directed verdict as to strong arm robbery, which was denied. After the defense presented evidence, the trial court specifically asked defense counsel whether he had any motions, and counsel responded: "Just renew my previous objections." The court then asked for any requests to charge. Although defense counsel did request that larceny be charged as a lesser included offense, Rosemond sets forth no argument on appeal concerning the court's denial of the request to charge a lesser included offense.
Based on the foregoing, it is arguable the directed verdict issue is not preserved as defense counsel did not specifically renew his directed verdict motion at the conclusion of the evidence. Rather, he made only a general reference to renewing his "previous objections," a statement he made earlier which did not include his directed verdict motion. See State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (); State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998) (); see also State v. Parler, 217 S.C. 24, 59 S.E.2d 489 (1950)
(); Note to Rule 19, SCRCrimP ( the rule "is substantially the substance of Circuit Court Rule 76"); State v. Adams, 332 S.C. 139, 144, 504 S.E.2d 124, 126-27 (Ct.App.1998) () (citing, inter alia, State v. Parler, 217 S.C. 24, 59 S.E.2d 489 (1950) and the Note to Rule 19, SCRCrimP); State v. Harry, 321 S.C. 273, 277, 468 S.E.2d 76, 79 (Ct.App.1996) ("A motion for a directed verdict made at the close of the case is not sufficient to preserve error unless renewed at the close of all the evidence, because once the defense has come forward with its proof, the propriety of a directed verdict can only be tested in terms of all the evidence.") (alteration in original) (citation omitted).
Because the issue was probably preserved by reference to the original motion for...
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