State v. Rowell, 2399

CourtCourt of Appeals of South Carolina
Citation321 S.C. 114,467 S.E.2d 247
Decision Date04 April 1995
Docket NumberNo. 2399,2399
PartiesThe STATE, Respondent, v. Karen ROWELL, Appellant. . Heard

Page 247

467 S.E.2d 247
321 S.C. 114
The STATE, Respondent,
Karen ROWELL, Appellant.
No. 2399.
Court of Appeals of South Carolina.
Heard April 4, 1995.
Decided Oct. 16, 1995.
Refiled Jan. 30, 1996.
Certiorari Granted Aug. 23, 1996.

Assistant Appellate Defender, Robert M. Pachak, of S.C. Office of Appellate Defense, Columbia, for appellant.

Attorney General T. Travis Medlock; Chief Deputy Attorney General Donald J. Zelenka; and Assistant Attorney General William Edgar Salter, III, Columbia; and Solicitor Ralph J. Wilson, Conway, for respondent.



After a careful consideration of this Petition for Rehearing, it is ordered that the Opinion and Dissent heretofore filed as Opinion No. 2399 on October 16, 1995, be withdrawn and the attached Opinion and Dissent be substituted therefore. The Petition for Rehearing is denied.

For the Majority:

/s/ William T. Howell, C.J.

/s/ Carol Connor, J.

For the Dissent:

/s/ Jasper M. Cureton, J.

[321 S.C. 117] CONNOR, Judge:

This case involves a tragic automobile-pedestrian accident in which two children were killed. The jury found Rowell, the driver of the automobile, guilty of two counts of reckless

Page 249

homicide. The trial judge sentenced her to five years, suspended on the service of three years, with two years probation. Rowell appeals the trial judge's denial of her directed verdict motion. We reverse and remand.

I. Issue

Rowell appeals only the trial judge's refusal to direct a verdict in her favor. She moved for a directed verdict at the end of the state's case and renewed this motion at the close of all the evidence. She argues the state has not shown recklessness, an essential element of reckless homicide under S.C.Code Ann. § 56-5-2910 (1991), 1 which requires the state to prove death resulted from driving a vehicle "in reckless disregard of the safety of others." There is no issue concerning proximate cause in this case, as it is quite clear Rowell's actions proximately caused the children's deaths.

II. Analysis

A. Standard of Review

In reviewing the denial of a motion for directed verdict, we must determine whether any evidence exists which tends to prove the guilt of the accused, or from which her guilt may be fairly and logically deduced. State v. Hicks, 305 S.C. 277, 407 S.E.2d 907 (Ct.App.1991); State v. Edwards, 298 S.C. 272, 379 S.E.2d 888, cert. denied, 493 U.S. 895, 110 S.Ct. 246, 107 L.Ed.2d 196 (1989) (where the state relies on circumstantial evidence, the test to survive a directed verdict motion is whether there is any substantial evidence which tends to prove the guilt of the accused). Moreover, we must consider all evidence in the light most favorable to the state. State v. Simpson, 275 S.C. 426, 272 S.E.2d 431 [321 S.C. 118] (1980). Because trial judges must be concerned with the existence or non-existence of evidence, not with its weight, if there is any direct or any substantial circumstantial evidence, we must affirm the denial of a directed verdict motion. State v. Venters, 300 S.C. 260, 387 S.E.2d 270 (1990); State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924 (1955). However, where there is a failure of competent evidence tending to prove the offense charged, the trial judge should grant the motion. Id.

B. Summary of Testimony 2

When the accident occurred, Rowell was driving south on Wiley Drive, a two-way street in a residential area of North Myrtle Beach. Wiley Drive, which is 20 feet 7 inches wide, did not have lines down the middle, nor on the sides, of the road. The accident occurred just after dusk. There were two street lights on the block where the accident occurred. A resident testified the lack of street lights in the area caused it to be quite dark at night. Two of the state's witnesses testified it was not so dark that you could not see.

Rowell's car crossed over the lane for oncoming traffic onto a grassy shoulder, striking five pedestrians, one of whom was holding an infant, walking north. Three-year-old Hank Tomlinson and twelve-year-old Erica Spon died from the injuries they received. Jennifer and Destiny Tomlinson, Hank's mother and sister, respectively, and Randi and Sarah Slaughter, who were sisters, survived.

Shortly before the accident, Alberta Kissell had driven through the area, travelling in the opposite direction from Rowell. She testified she observed three children on her right and

Page 250

saw a child pushing another child in a stroller on her left. Kissell "got in the middle of the road" and stopped and flashed her high beams to warn the children. As she proceeded north, [321 S.C. 119] she saw Rowell's car turning onto Wiley Drive. She noticed Rowell was not speeding.

Sarah Slaughter testified she, Jennifer, and Randi were in the middle of the street when Kissell's car passed. Jennifer and Randi testified their group was on the east side of the road when Kissell drove by. Sarah was holding Destiny, and Erica and Hank were walking on the opposite side of the street. Randi Slaughter testified that after Kissell's car passed, Jennifer Tomlinson directed Erica, who was pushing Hank in the stroller, to cross to the other side of the road.

Rowell, who is hearing impaired, 3 testified she thought she saw two small children on her right. She further testified that, thinking the left side of the road was clear, she tried to go around them by veering that way. Tragically, Rowell hit the group of pedestrians on her left.

The testimony concerning the location of the impact is conflicting. Eric Ayersman, an officer with the North Myrtle Beach Department of Public Safety who investigated the scene, testified the impact occurred on a grassy shoulder, two to four feet off the road. On the other hand, Rowell said she was still on the road and the stroller was right on the edge of the road when her car slid. She further recalled:

It was, like, it was like they all came out of nowhere. You know, on the left it was very, very dark. It was darker than on the right. I could see the two kids, you know, if I had seen the two kids on the right. That's why I moved into the middle. But the part of that area where the accident happened is where it's very, very dark.

C. Mens Rea in General

Courts have long accepted the idea that a criminal act must include the element of mens rea. The United States Supreme Court held:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a [321 S.C. 120] consequent ability and duty of the normal individual to choose between good and evil.

Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952) (conviction for conversion of government property reversed where intent was presumed from the act itself). Mens rea is the yardstick by which we measure criminal intent. "The required mens rea for a particular crime can be classified into a hierarchy of culpable states of mind in descending order of culpability, as purpose, knowledge, recklessness, and negligence." State v. Jefferies, 316 S.C. 13, ----, 446 S.E.2d 427, 430 (1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995) (citing United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980)). The legislature may, of course, criminalize behavior without regard to intent or knowledge. See, e.g., State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992) (holding felony DUI does not require recklessness); Guinyard v. State, 260 S.C. 220, 195 S.E.2d 392 (1973) (affirming conviction under statute that prohibited having sexual intercourse with a patient or trainee at any state mental health facility despite defendant's claim that the victim's status was not known to him); see generally State v. Jefferies (determining the mens rea required for the crime of kidnapping in the absence of specific statutory language).

D. Specific Mens Rea of Recklessness

The South Carolina legislature has chosen to include the specific mens rea of recklessness in our reckless homicide statute. Recklessness is a state of mind in which the actor is aware of his or her conduct, yet consciously disregards a risk which his or her conduct is creating. See William Shepard McAninch & W. Gaston Fairey, The Criminal

Page 251

Law of South Carolina 12-15 (2d ed. 1989). It has also been defined as "something more than mere negligence or carelessness ... a conscious failure to exercise due care or ordinary care or a conscious indifference to the rights and safety of others or a reckless disregard thereof." State v. Tucker, 273 S.C. 736, 739, 259 S.E.2d 414, 415 (1979). The Model Penal Code includes definitions of the various kinds of culpability. It defines "recklessly" as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial[321 S.C. 121] and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Model Penal Code § 2.02(2)(c) (1985).

The trial judge here held there was evidence of recklessness because there was evidence Rowell had crossed over the oncoming lane, thereby violating a statute. However, the Supreme Court, in In re Stacy Ray A., 303 S.C. 291, 400 S.E.2d 141 (1991), reversed the trial judge's conclusion that Stacy Ray A., a juvenile, committed reckless homicide. Under the facts of that case, the juvenile's car had stopped on the outermost portion of the decedent's lane, while the decedent's car had stopped partially off the paved portion of the road. The Court held, absent evidence of speeding, alcohol or drug use, or any other willful...

To continue reading

Request your trial
2 cases
  • State v. Rowell, 24641
    • United States
    • United States State Supreme Court of South Carolina
    • January 22, 1997 five years' imprisonment, suspended upon the service of three years' imprisonment and two years' probation. In State v. Rowell, 321 S.C. 114, 467 S.E.2d 247 (Ct.App.1995), the Court of Appeals reversed by a vote of 2-1 with Judge Cureton dissenting. The majority held that respondent was ......
  • South Carolina Nat. Bank v. Devine Blossom
    • United States
    • Court of Appeals of South Carolina
    • October 4, 1996
    ...the master's order granting foreclosure were stayed by appellants' appeal. For the foregoing reasons, the order of the circuit court is [321 S.C. 114] HOWELL, C.J., and CURETON, J., concur. --------------- 1 Because oral argument would not aid the court in resolving the issues, we decide th......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT