State v. Warren, No. 2827.

CourtCourt of Appeals of South Carolina
Writing for the CourtCONNOR.
Citation500 S.E.2d 128,330 S.C. 584
PartiesThe STATE, Respondent, v. James Barney WARREN, Appellant.
Docket NumberNo. 2827.
Decision Date13 April 1998

330 S.C. 584
500 S.E.2d 128

The STATE, Respondent,
v.
James Barney WARREN, Appellant

No. 2827.

Court of Appeals of South Carolina.

Heard September 10, 1997.

Decided April 13, 1998.

Rehearing Denied May 21, 1998.


330 S.C. 587
Assistant Appellate Defender Robert M. Pachak, of SC Office of Appellate Defense, Columbia; and Francis X. McCann, Charleston, for appellant

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor Walter M. Bailey, Jr., Summerville, for respondent.

330 S.C. 588
CONNOR, Judge

James Barney Warren appeals his conviction for second-degree criminal sexual conduct with a minor. We affirm in part, reverse in part, and remand.

FACTS

In January 1994, fourteen-year-old Christy Chenault lived with her aunt and uncle, Mary and Raymond Garrison. Christy had been placed in relative custody foster care pursuant to a family court restraining order, which prohibited unsupervised contact between Christy and her mother and stepfather. The restraining order was put in effect after Christy's older sister, Brandy Nettles, alleged Warren had sexually abused her.1 Warren is Christy and Brandy's stepfather. Warren and Christy's mother, Cheryl Warren, lived down the street from the Garrisons.

On January 15, 1994, Christy called her parents to ask for permission to attend a friend's birthday party. Christy and several other witnesses who attended the party testified Christy's mother, stepfather, and stepbrother picked her up at the Garrisons' house and drove her to the party.

Christy testified Warren called her friend's house around 9:00 p.m. and told her he was coming to pick her up. Christy and several other witnesses who attended the party testified Warren arrived alone at the house around 9:30 or 10:00 p.m. Warren then drove Christy to the house where he and Christy's mother were living.

Christy said Warren starting touching her that night while they were watching television. Warren then told her to stand up and undress in front of him. After Warren undressed, he had oral sex and sexual intercourse with her.

On May 10, 1994, Christy told her friend Christian Beasley about what had happened with Warren. The same day,

330 S.C. 589
Christy called her aunt in Pennsylvania and then called Brandy. Christy's aunt called Marilyn Lassiter, a guardian ad litem, who instructed her to contact Christy's school guidance counselor and the police. Christy then spoke with Donna Hernandez, her guidance counselor, and told her what had happened with Warren. Hernandez reported the incident to the Dorchester County Department of Social Services (D.S.S.)

Christy was placed in foster care and eventually went to live with her aunt in Pennsylvania. She lived there until January 13, 1995, when she returned to South Carolina. Christy testified that while she was living in Pennsylvania, Warren called her and told her he still loved her and would not do it again.

In the early part of January 1995, while she was still living in Pennsylvania, Christy sent letters to D.S.S., the foster care review board, and family court Judge Watson. In each of these letters, Christy recanted her allegations of sexual abuse. Christy testified her parents told her where to send the letters. When Christy returned to South Carolina, she called Raymond Garrison. In the telephone conversation, which was taped by Garrison, Christy stated the allegations against Warren were false.

Zan Dickerson, an investigator with D.S.S., verified Christy had recanted her allegations of sexual abuse. Christy returned to her original allegations on May 18, 1995, just prior to attending a family court hearing. Christy stated she changed her story because she wanted to return home to be with her mother.

Warren testified he gave Christy permission to attend the party. However, Christy told him she would find a ride. He denied taking Christy to the party or picking her up. He claimed he spent the whole day and night of January 15, 1994, repairing a clothes dryer at home. He stated his wife left for work around 7:15 or 7:30 p.m. in her charcoal gray Honda Accord.2 He denied ever sexually molesting Christy or his other stepdaughter, Brandy.

330 S.C. 590
Christy's mother stated she arrived at work on January 15, 1994, at 7:38 p.m. in her Honda Accord. She denied telling Christy to write the letters in which Christy recanted her allegations of sexual abuse. Although Christy asked her to tell D.S.S. the allegations were false, she refused to do so. Instead, she told Christy she would have to contact D.S.S. on her own. Christy's mother claimed her mother's husband had actually molested Christy and Brandy.

Brandy testified she had made false allegations that Warren had raped her. She did this because she wanted the freedom to do what other teenagers were allowed to do. In a signed statement to the solicitor's office, dated June 23, 1994, Brandy stated she wanted to dismiss the charges she had made against Warren.

On June 6, 1994, D.S.S. filed a rule to show cause against the Warrens and the Garrisons for failure to comply with the family court order in effect. As to Warren, D.S.S. alleged he failed to comply with the order by sexually abusing Christy on January 15, 1994.

After a hearing, the family court judge found Warren in contempt. He sentenced Warren to one year imprisonment and ordered him to pay a fine of $1,500.

Subsequently, Warren was tried and convicted of second-degree criminal sexual conduct with a minor, based on the January 15, 1994 incident involving Christy.

DISCUSSION

I. Double Jeopardy

Warren argues his trial and conviction for second-degree criminal sexual conduct with a minor constituted double jeopardy. He contends he had already been punished for the same offense in family court when he was found in contempt.

At the conclusion of the family court contempt hearing, the judge orally ruled D.S.S. had proven by the preponderance of the evidence that Christy had been sexually abused by Warren. The judge separately addressed the issue of contempt. On this issue, the judge orally ruled as follows:

330 S.C. 591
We do have the issue of contempt of court against Mr. Warren and against Mrs. Warren. Both of whom have been ruled into court for contempt for failing to comply with prior Restraining Orders that would not allow Mr. Warren to have unsupervised contact with this young lady....
I do find the burden of proof in a rule to show [cause] for violating the Restraining Order requires proof beyond a reasonable doubt because it is a criminal action. I do find that certainly the Department of Social Services has met the burden of proof and that certainly there is no reasonable doubt, and I find that Mr. Warren did violate that Restraining Order, that he and Mrs. Warren did go to the birthday party of Amanda with Christy and let her off. The Garrisons weren't present to supervise this contact, and that in of itself would have been pretty innocent type behavior.
However, Mr. Warren came back to the birthday party, alone, not accompanied by Mrs. Warren or the Garrisons, and picked Christy up and took Christy back to the home and sexually abused Christy. He certainly violated the Restraining Order.... The purpose of the initial Restraining Order against Mr. Warren was to protect the children, Christy and Brandy from any further abuse or abusive conduct by Mr. Warren. That was the whole reason for the Restraining Order for Mr. Warren not to have any unsupervised contact with this young lady here. He violated it, as a result, the young lady was sexually abused....

By written order dated June 9, 1995, the judge made the following findings of fact:

2. That the Plaintiff Agency met its burden of proof by more than a preponderance of the evidence that Defendant, James Warren, sexually abused the minor child, Kimberly Christy Chenault,....
4. That the Plaintiff Agency has met its burden of proof beyond a reasonable doubt the Defendant, James Warren, violated this Court's prior restraining order which prohibited him from having any contact with the minor child, Kimberly Christy Chenault, unless under supervision of Raymond Garrison.
5. That the purpose of this Court's prior restraining order was to protect the minor child, Kimberly Christy Chenault,
330 S.C. 592
from possible sexual abuse, and the Defendant, James Warren's conduct in sexually abusing the minor child was in direct violation of this order.
6. That the Defendant, James Warren, is found to be in contempt of this court's order and should be confined to public works of Dorchester County or placed in other appropriate correctional facility for one (1) year and, upon release shall pay a fine of one thousand five hundred dollars ($1,500.00).

At trial, Warren moved to quash the indictment for criminal sexual conduct with a minor based on double jeopardy. Warren alleged he had already been punished and held in contempt of family court on the same charge. The trial judge denied the motion, finding the order was ambiguous. He noted the family court did not punish Warren for having sexual relations with Christy, but for violating the restraining order.

The Double Jeopardy Clause provides that "No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V. The Fifth Amendment protects against a second prosecution for the same offense after conviction or acquittal, and against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court stated:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are
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6 practice notes
  • State v. Bernacki, No. 18674.
    • United States
    • Supreme Court of Connecticut
    • September 26, 2012
    ...that order. Proof of these elements, however, was not required to support the convictions for criminal trespassing.” In State v. Warren, 330 S.C. 584, 599, 500 S.E.2d 128 (App.1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000), the South Carolina Court of Appeals concluded t......
  • State v. Bernacki, SC 18674
    • United States
    • Supreme Court of Connecticut
    • September 26, 2012
    ...2009 Ohio App. LEXIS 3819, *8-9 (September 2, 2009), appeal denied, 124 Ohio St. 3d 1416, 919 N.E.2d 215 (2009); State v. Warren, 330 S.C. 584, 598-99, 500 S.E.2d 128 (App. 1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000); see also People v. Wood, 260 App. Div. 2d 102, 107......
  • State v. Bernacki, SC18674
    • United States
    • Supreme Court of Connecticut
    • October 9, 2012
    ...that order. Proof of these elements, however, was not required to support the convictions for criminal trespassing.'' In State v. Warren, 330 S.C. 584, 599, 500 S.E.2d 1258 (App. 1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000), the South Carolina CourtPage 10of Appeals co......
  • State v. Wilkes, No. 3355.
    • United States
    • Court of Appeals of South Carolina
    • June 11, 2001
    ...jury's findings. Wilson v. State, 327 S.C. 45, 488 S.E.2d 322 (1997); State v. Lark, 64 S.C. 350, 42 S.E. 175 (1902); State v. Warren, 330 S.C. 584, 500 S.E.2d 128 (Ct.App.1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000). For purposes of conferring jurisdiction, the grand ......
  • Request a trial to view additional results
6 cases
  • State v. Bernacki, No. 18674.
    • United States
    • Supreme Court of Connecticut
    • September 26, 2012
    ...that order. Proof of these elements, however, was not required to support the convictions for criminal trespassing.” In State v. Warren, 330 S.C. 584, 599, 500 S.E.2d 128 (App.1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000), the South Carolina Court of Appeals concluded t......
  • State v. Bernacki, SC 18674
    • United States
    • Supreme Court of Connecticut
    • September 26, 2012
    ...2009 Ohio App. LEXIS 3819, *8-9 (September 2, 2009), appeal denied, 124 Ohio St. 3d 1416, 919 N.E.2d 215 (2009); State v. Warren, 330 S.C. 584, 598-99, 500 S.E.2d 128 (App. 1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000); see also People v. Wood, 260 App. Div. 2d 102, 107......
  • State v. Bernacki, SC18674
    • United States
    • Supreme Court of Connecticut
    • October 9, 2012
    ...that order. Proof of these elements, however, was not required to support the convictions for criminal trespassing.'' In State v. Warren, 330 S.C. 584, 599, 500 S.E.2d 1258 (App. 1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000), the South Carolina CourtPage 10of Appeals co......
  • State v. Wilkes, No. 3355.
    • United States
    • Court of Appeals of South Carolina
    • June 11, 2001
    ...jury's findings. Wilson v. State, 327 S.C. 45, 488 S.E.2d 322 (1997); State v. Lark, 64 S.C. 350, 42 S.E. 175 (1902); State v. Warren, 330 S.C. 584, 500 S.E.2d 128 (Ct.App.1998), rev'd on other grounds, 341 S.C. 349, 534 S.E.2d 687 (2000). For purposes of conferring jurisdiction, the grand ......
  • Request a trial to view additional results

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