State v. Thompson
| Decision Date | 14 June 2017 |
| Docket Number | Opinion No. 5492. |
| Citation | 803 S.E.2d 44,420 S.C. 386 |
| Parties | The STATE, Respondent, v. Demario Monte THOMPSON, Appellant. |
| Court | South Carolina Court of Appeals |
Appellate Defender John Harrison Strom, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General Deborah R.J. Shupe, both of Columbia; and Solicitor Douglas A. Barfield, Jr., of Lancaster, all for Respondent.
LEE, A.J.:
Demario Monte Thompson appeals his convictions and sentences for first-degree burglary and third-degree assault and battery, arguing the trial court erred by (1) admitting a trespass notice letter into evidence; (2) admitting the entire recording of a 911 call into evidence; (3) denying his motion for a directed verdict on the first-degree burglary charge; and (4) denying his motion for a new trial. We affirm.
FACTS/PROCEDURAL BACKGROUND
A Lancaster County grand jury indicted Thompson for first-degree burglary and attempted murder based on allegations he broke into Keasia Drafton's apartment and tried to kill her on July 2, 2014.1 Before trial, Thompson moved to suppress a trespass notice letter stating he was banned from the apartment complex where Drafton lived. Thompson argued (1) the letter was irrelevant, (2) the letter presented impermissible character evidence, and (3) the letter's prejudicial effect substantially outweighed its probative value. The State contended because the letter proved Thompson did not live in Drafton's apartment, he did not have inherent consent to be there. Further, the State agreed it would not discuss the reason Thompson was banned from the apartment during trial. The trial court denied Thompson's motion.
At trial, Deputy Reuben Silberman testified he responded to a disturbance at an apartment complex between 4 a.m. and 5 a.m. on July 2, 2014. He recalled the apartment "door appeared to have been kicked in" because "[t]he deadbolt was still engaged[,] and the door was hanging slightly off its hinges." Deputy Silberman stated he spoke with Drafton, who was "very upset" and had wounds
on her head and neck. The State introduced photos taken by Deputy Silberman depicting Drafton's wounds and the apartment door. Deputy Silberman believed the wound on Drafton's neck was due to strangulation. According to Deputy Silberman, Drafton answered the door in underwear and a tank top, and her clothes were torn. Deputy Silberman believed a physical altercation had occurred in the living room because "some things were thrown around the apartment."
Dominique Huff testified he lived in the apartment across from Drafton. Huff recalled he heard "a whole bunch of commotion" coming from Drafton's apartment and saw "the door was off the hinges." He stated he went back inside his apartment, but he came out again because "somebody yelled [someone] had a gun." He noted that when he came outside a second time, he saw Thompson "down by the trash can" arguing with a neighbor. Huff recalled Thompson raised his hand, but he could not tell if Thompson had a gun because it was dark.
Huff indicated Drafton was crying and appeared "hysterical."
Janice Sager, the manager of Drafton's apartment complex, testified Thompson was not a resident at the apartment complex, and the State introduced the trespass notice letter over Thompson's objection. Sager explained she drafted the letter stating Thompson was banned from the apartment complex at the direction of her district manager and Drafton signed it on March 18, 2014. The letter stated Drafton's lease would be terminated if she allowed Thompson into her apartment or onto the property, and it noted Thompson would be charged with trespassing.
During the testimony of Sandra Cauthen, Deputy Director of the Lancaster County Public Safety Communications, the State played a recording of a 911 call made by someone who identified herself as Drafton. Cauthen explained calls to 911 were automatically recorded, stored on a server for three years, and regularly maintained by the technology department. Cauthen stated she could not say with absolute certainty that Drafton was the caller. Thompson objected to the introduction of the recording, arguing (1) it was not properly authenticated to show Drafton was the caller and (2) it violated his Confrontation Clause rights because it was testimonial and Drafton did not testify.
In the 911 recording, a woman could be heard crying and stating she needed an officer. When the dispatcher explained an officer was in route, the woman responded, The woman stated she did not need an ambulance. The dispatcher determined the man had a gun. When asked where the gun was, the woman said, "He got it in his hand." The woman indicated the man was pointing the gun at her. The woman stated the man's name was "Demario Thompson."
When the dispatcher asked for her name, the woman answered, "Keasia Drafton." The dispatcher said, "Yes, she said he's standing there with a gun in his hand." The caller stated, The dispatcher asked the woman to tell her what the man was wearing. The woman responded, A man could be heard in the background asking whether it was "Demario," and the woman replied, "Yes." The man asked which way he ran, and the woman said, When asked what the man pointed, the woman stated he pointed a gun. When asked if the man hurt her, the woman responded, "Yes he kept pointing at—" before the recording cut off.
Suzanne Collins testified she was the dispatcher who answered the 911 call and indicated the recording accurately depicted the entirety of the call. Collins testified dispatchers rely on information a caller gives—such as the caller's identity—because dispatchers are unable to independently verify the information.
At the close of the State's case, Thompson moved for a directed verdict on the first-degree burglary charge, arguing the State did not present sufficient evidence to show (1) he did not have consent to enter Drafton's apartment and (2) he intended to commit a crime while inside. The trial court denied the motion, finding the record contained sufficient evidence to submit the issue to the jury. Thompson did not present any evidence at trial. The jury found Thompson guilty of first-degree burglary and third-degree assault and battery. After the verdict, Thompson moved for a new trial, and the trial court denied his motion. The trial court sentenced Thompson to fifteen years' imprisonment for first-degree burglary and time served for third-degree assault and battery. This appeal followed.
STANDARD OF REVIEW
"In criminal cases, an appellate court sits to review only errors of law, and it is bound by the trial court's factual findings unless the findings are clearly erroneous." State v. Spears , 403 S.C. 247, 252, 742 S.E.2d 878, 880 (Ct. App. 2013).
LAW/ANALYSIS
I. Trespass Letter
Thompson asserts the trial court erred in admitting the trespass notice letter because the letter was irrelevant, impermissible hearsay evidence, impermissible character evidence, and unfairly prejudicial. We disagree.
"The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion." State v. Pagan , 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006). "An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." Id. This court will not reverse the trial court's decision regarding a Rule 403 objection absent an abuse of discretion and resulting prejudice. State v. Gray , 408 S.C. 601, 608, 759 S.E.2d 160, 164 (Ct. App. 2014).
A. Relevance
Thompson argues the letter was not relevant because (1) he needed the tenant's consent to enter the apartment, not the landlord's consent; (2) the State presented no evidence he was aware of the letter; and (3) the letter was signed four months before the incident giving rise to his charges. We disagree.
"Evidence which is not relevant is not admissible." Rule 402, SCRE. "Evidence is relevant if it tends to establish or make more or less probable some matter in issue upon which it directly or indirectly bears." State v. Alexander , 303 S.C. 377, 380, 401 S.E.2d 146, 148 (1991).
We find the letter was relevant to the element of consent in first-degree burglary. See State v. Cross , 323 S.C. 41, 43, 448 S.E.2d 569, 570 (Ct. App. 1994) (). The letter shows Thompson was not a resident of the apartment complex. Therefore, Thompson would not have a possessory interest in Drafton's apartment or inherent consent to be there, requiring him to receive Drafton's consent before entering the apartment. Accordingly, we find the letter was relevant to an element of first-degree burglary in Thompson's case.
B. Hearsay
Thompson asserts the letter was impermissible hearsay because it was offered to prove the fact that Drafton, the declarant, did not consent to Thompson entering her apartment. We disagree.
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Rule 801(c), SCRE. Hearsay is inadmissible unless an exception or an exclusion applies. Rule 802, SCRE. One such exception is the business records exception, which states:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or...
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