State v. Tumbleston, No. 4312.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Anderson
• Citation: 654 S.E.2d 849
• Parties: The STATE, Respondent, v. Vernon TUMBLESTON, Appellant.
• Decision Date: 27 November 2007
• Docket Number: No. 4312.

654 S.E.2d 849 The STATE, Respondent,
v.
Vernon TUMBLESTON, Appellant. No. 4312. Court of Appeals of South Carolina. Heard November 6, 2007. Decided November 27, 2007. Rehearing Denied January 17, 2008.

[654 S.E.2d 850]

Chief Attorney Joseph L. Savitz, III, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Julie Thames, all of Columbia; and Scarlett Anne Wilson of Charleston, for respondent.

ANDERSON, J.

Vernon Tumbleston appeals his convictions for first-degree criminal sexual conduct with a minor and committing a lewd act on a minor, arguing the trial court erred in denying his motion to quash the indictments. Specifically, Tumbleston maintains the indictments did not allege the specific time of each offense intended to be charged, and thus, failed to provide him with adequate notice to prepare a defense. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The present case revolves around the accusations of Tumbleston's granddaughter, B.J., who was ten years old at the time of Tumbleston's trial. In late 2004, B.J. told her mother Tumbleston had repeatedly molested her over the course of several years. The violation began when she was in kindergarten and continued throughout the second grade. B.J. alleged Tumbleston "licked [her] private," "stuck his private in [her] private," "stuck his private in [her] mouth," and "put [her] hand on his private." B.J. claimed these acts occurred more than once over the three-year period. B.J. did not tell her mother about the abuse until approximately three years after it began, when she refused to go shopping with Tumbleston. After hearing B.J.'s

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account of the sexual abuse, B.J.'s mother took her to a local pediatrician and the Low-country Children's Center for examination. Subsequently, a representative from "People Against Rape" notified the North Charleston Police Department of B.J.'s accusations. During the police investigation, Tumbleston agreed to give an oral statement regarding his alleged molestation of B.J. According to Tumbleston, "there [was] a possibility that he might have touched [B.J.] between her legs while he was asleep." Additionally, "it [was] possible [Tumbleston's] penis came out of his pants and touched [B.J.]."

Tumbleston was indicted on four counts of first-degree criminal sexual conduct with a minor and one count of committing a lewd act on a minor. The indictments alleged the charged offenses occurred between 2001 and 2004. Tumbleston moved to quash the indictments on the ground of insufficiency, asserting the indictments failed to indicate the specific time of each offense, thus depriving him of adequate notice. Despite Tumbleston's contention, the trial court found the indictments sufficient as long as the State "tie[d] in the dates of the time frame with some type of rational testimony from other people."

The jury found Tumbleston guilty on two counts of first-degree criminal sexual conduct with a minor and one count of committing a lewd act on a minor. The court directed a verdict of not guilty on one count of criminal sexual conduct, and the jury acquitted Tumbleston on another count of criminal sexual conduct. The trial court sentenced Tumbleston to concurrent terms of imprisonment totaling twenty-two years followed by five years probation.

STANDARD OF REVIEW

The trial court's factual conclusions as to the sufficiency of an indictment will not be disturbed on appeal unless so manifestly erroneous as to show an abuse of discretion. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). An abuse of discretion occurs when the trial court's ruling is based on an error of law or a factual conclusion without evidentiary support. Id.; see also State v. Douglas, 367 S.C. 498, 506, 626 S.E.2d 59, 63 (Ct.App.2006) cert. granted June 7, 2007; State v. Preslar, 364 S.C. 466, 472, 613 S.E.2d 381, 384 (Ct.App.2005). Accordingly, an appellate court is bound by the trial court's factual findings when the findings are supported by the evidence and not controlled by error of law. Baccus, 367 S.C. at 48, 625 S.E.2d at 220; Douglas, 367 S.C. at 506, 626 S.E.2d at 63.

LAW/ANALYSIS

I. Insufficient Indictment

Tumbleston avers the trial court erred in denying his motion to quash the indictments on the ground of insufficiency. Tumbleston contends the indictments did not allege the specific time of each offense intended to be charged, and therefore, failed to provide him with adequate notice to prepare a defense. We disagree.

A. The Indictment: A "Notice Document"

In State v. Gentry, 363 S.C. 93, 101-02, 610 S.E.2d 494, 499 (2005), our supreme court "abandoned the view that, in criminal matters, the circuit court acquires subject matter jurisdiction to hear a particular case by way of a valid [grand jury] indictment." State v. Means, 367 S.C. 374, 381, 626 S.E.2d 348, 352 (2006). Prior to Gentry, the circuit court did not have subject matter jurisdiction in a criminal case unless: (1) there was an indictment sufficiently stating an offense; (2) the defendant waived presentment of the indictment to the grand jury; or (3) the charge was a lesser-included offense of the crime charged in the indictment. Means, 367 S.C. at 381, 626 S.E.2d at 352; Evans v. State, 363 S.C. 495, 507-09, 611 S.E.2d 510, 516-18 (2005); Carter v. State, 329 S.C. 355, 362-63, 495 S.E.2d 773, 777 (1998); Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995); State v. Beachum, 288 S.C. 325, 326, 342 S.E.2d 597, 598 (1986); Summerall v. State, 278 S.C. 255, 256, 294 S.E.2d 344, 344 (1982); State v. Tabory, 262 S.C. 136, 139-40, 202 S.E.2d 852, 853 (1974). Consequently, a defective or insufficient indictment often resulted in the lack of subject matter jurisdiction, "which is a matter that may be raised at

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any time, including on direct appeal, in a [post-conviction relief] action or sua sponte by the trial or appellate courts." Means, 367 S.C. at 381, 626 S.E.2d at 352; see also State v. Munn, 292 S.C. 497, 499, 357 S.E.2d 461, 463 (1987) (concluding trial court lacks subject matter jurisdiction to convict defendant for an offense if there is no indictment charging him with the offense when the jury is sworn).

As our supreme court recognized in Gentry, the subject matter jurisdiction of the circuit court and the sufficiency of an indictment are two distinct concepts. Gentry, 363 S.C. at 102 n. 6, 610 S.E.2d at 499 n. 6 ("[P]resentment of an indictment or a waiver of presentment is not needed to confer subject matter jurisdiction on the circuit court."). "Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong." Gentry, 363 S.C. at 100, 610 S.E.2d at 498; Pierce v. State, 338 S.C. 139, 150, 526 S.E.2d 222, 227 (2000); Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994); see also S.C. Const. art. V, § 11 (providing circuit court "shall be a general trial court with original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law").

"However, an indictment is needed to give notice to the defendant of the charges against him." Gentry, 363 S.C. at 102 n. 6, 610 S.E.2d at 499 n. 6. (Emphasis added). Definitively, an indictment is a "notice document." See S.C. Const. art. I, § 11 ("No person may be held to answer for any crime the jurisdiction over which is not within the magistrate's court, unless on a presentment or indictment of a grand jury of the county where the crime has been committed...."); S.C.Code Ann. § 17-19-10 (2003) ("No person shall be held to answer in any court for an alleged crime or offense, unless upon indictment by a grand jury...."). Indeed,

[t]he indictment is the charge of the state against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation. When that indictment is presented, that accusation made, that pleading filed, the accused has two courses of procedure open to him. He may question the propriety of the accusation, the manner in which it has been presented, the source from which it proceeds, and have these matters promptly and properly determined; or, waiving them, he may put in issue the truth of the accusation, and demand the judgment of his peers on the merits of the charge. If he omits the former, and chooses the latter, he ought not, when defeated on the latter,-when found guilty of the crime charged,-to be permitted to go back to the former, and inquire as to the manner and means by which the charge was presented.

Gentry, 363 S.C. at 102, 610 S.E.2d at 499-500 (quoting State v. Faile, 43 S.C. 52, 59-60, 20 S.E. 798, 801 (1895), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)).

Pursuant to Gentry, an indictment reputed to be insufficient no longer raises a question of subject matter jurisdiction; rather, it raises a question of whether a defendant properly received notice he would be tried for a particular crime. See Evans, 363 S.C. at 507-09, 611 S.E.2d at...