State v. Sutton, No. 25130.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOORE, Justice
• Citation: 340 S.C. 393,532 S.E.2d 283
• Parties: The STATE, Petitioner, v. Michael SUTTON, Respondent.
• Docket Number: No. 25130.
• Decision Date: 15 May 2000

340 S.C. 393
532 S.E.2d 283

The STATE, Petitioner,
v.
Michael SUTTON, Respondent

No. 25130.

Supreme Court of South Carolina.

Heard March 22, 2000.

Decided May 15, 2000.

Rehearing Denied June 6, 2000.

340 S.C. 394

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General G.

340 S.C. 395

Robert DeLoach, III, all of Columbia; and Solicitor E.L. Clements, III, of Florence, for petitioner

Assistant Appellate Defender M. Anne Pearce, of South Carolina Office of Appellate Defense, of Columbia, for respondent.

MOORE, Justice:

The Court of Appeals vacated respondent's attempted murder conviction and sentence. State v. Sutton, 333 S.C. 192, 508 S.E.2d 41 (Ct.App.1998). We granted the State a writ of certiorari to review the Court of Appeals' decision. We affirm as modified.

FACTS

On December 22, 1994, respondent Michael Sutton shot Dennis Thomas three times at a Florence nightclub. Thomas died over a year and a day later on January 22, 1996.¹ Sutton was indicted for assault and battery with intent to kill (ABIK), attempted murder, and possession of a firearm during the commission of a violent crime. At trial, Sutton moved for a directed verdict on the ground that ABIK and attempted murder are the same offense. The trial judge denied Sutton's motion. The jury convicted Sutton on all charges and he was sentenced to twenty years for the ABIK; life for the attemptedmurder, to run concurrently, and five years for the possession of a firearm offense, to run consecutively.

ISSUE

Did the Court of Appeals err in vacating Sutton's attempted murder conviction and sentence?

DISCUSSION

The Court of Appeals held ABIK and attempted murder are the same offense and since ABIK embraces the whole offense

340 S.C. 396

of attempted murder, in essence, there was a double jeopardy violation.² The State contends this was error

We have never been presented with the issue whether attempted murder is an offense in this state. We read the Court of Appeals' decision to hold that the offense of attempted murder does not exist. The Court of Appeals states that ABIK embraces the whole of attempted murder and then states the cases have always equated ABIK with attempted murder. We agree in result.

ABIK³ is an unlawful act of violent nature to the person of another with malice aforethought, either express or implied. State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996). The often cited language to describe ABIK is: if the victim had died from the injury, the defendant would have been guilty of murder. See, e.g., State v. Atkins, 293 S.C. 294, 360 S.E.2d 302, 305 (1987). Furthermore, a specific intent is not required to commit ABIK. State v. Foust, 325 S.C. 12, 479 S.E.2d 50, 51 (1996).⁴

340 S.C. 397

In general, "[a]ttempt is a specific intent crime." 21 Am.Jur.2d Criminal Law § 176 (1998). "The act constituting the attempt must be done with the intent to commit that particular crime." Id. See also Wharton's Criminal Law Attempt §§ 694-695 (1996)("To constitute an attempt, there must be an intent to commit a particular crime ... Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.")⁵ In the context of an "attempt" crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense. In other words, the completion of such acts is the defendant's purpose. United States v. Calloway, 116 F.3d 1129 (6th Cir.1997). Attempted murder would require the specific intent to kill and conduct towards that end. ABIK requires an unlawful act of violence to the person of another with malice. Clearly, each offense has an element the other does not. However, simply because convictions for both offenses would not violate double jeopardy, we are not constrained to recognize the offense of attempted murder

Under our current common law, we recognize ABIK and assault with intent to kill (AIK). Assault...