The State v. Campbell
| Decision Date | 15 February 2011 |
| Docket Number | Unpublished Opinion No. 2011-UP-059 |
| Parties | The State, Respondent, v. Russell Campbell, Jr., Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Richland County
AFFIRMED
William T. Toal, of Columbia, for Appellant.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R.J. Shupe, Office of the Attorney General, of Columbia, for Respondent.
Russell Campbell, Jr. appeals from the trial court's denial of his motion for judgment notwithstanding the verdict, a new trial, and sentence reconsideration. Campbell argues the trial court erred in: (1) allowing the admission of expert opinion testimony; (2) not dismissing the indictment for obtaining money or other property; (3) not charging the incontestability insurance statute; and (4) not directing a verdict for Campbell. We affirm.1
The Richland County Grand Jury indicted Campbell for obtaining property by false pretenses and making a false statement or misrepresentation. The indictments alleged Campbell provided false information on an application for life insurance for Russell Campbell, Sr., Campbell's father (Father), with the intent to defraud Auto-Owners Life Insurance Company (Auto-Owners). The State asserted Campbell signed the applications. Father lived two years and eight months after the issuance of the policy, and upon his death, Campbell received $50,159.74.
Prior to trial, Campbell moved to quash the indictment alleging he obtained property by false pretenses on the ground that a life insurance policy is not money, valuable security, chattel, or real or personal property. The State asserted Campbell not only obtained the policy and collected the proceeds after Father's death, but the policy itself was a valuable security because other companies purchase life insurance policies before the death of the insured. The court denied Campbell's motion, finding the broad statutory language encompassed the right to receive benefits from a life insurance policy. At the conclusion of the State's case, Campbell moved for a directed verdict on both charges, arguing (1) there was no evidence the Auto-Owners' policy had any cash value at the time the company issued the policy; (2) the State could not rely on the fact that Campbell received the policy proceeds because the policy was incontestable under state law; and (3) the policy's effective date preceded the application date, thus Auto-Owners did not rely on it to issue the policy. The court denied the motion, finding the evidence went beyond mere conjecture or suspicion, and there was evidence that reasonably tended to prove Campbell's guilt.
After a three-day trial, the jury found Campbell guilty of both charges. The court sentenced Campbell to three years imprisonment and ordered him to pay $50,159.74 in restitution for the charge of making a false statement or misrepresentation, and ten years imprisonment, suspended on the service of three years with five years' probation for the charge of obtaining property by false pretenses. Campbell filed a motion for judgment notwithstanding the verdict, a new trial, and sentence reconsideration. The court denied Campbell's motion. This appeal followed.
In criminal cases, the appellate court sits to review errors of law only and is bound by the trial court's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). Thus, on review, the appellate court is limited to determining whether the trial judge abused his discretion. Id. An abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law. State v. Garrett, 350 S.C. 613, 619, 567 S.E.2d 523, 526 (Ct. App. 2002).
Campbell argues the trial court erred in allowing expert opinion testimony by the investigating officer because it was hearsay. We disagree.
Joe Jordan, an officer with the State Law Enforcement Division, testified he learned in his investigation that the insurance companies would not have issued the policies if they had known Father's true medical condition. He also testified he sent copies of the application to the handwriting analysis unit and learned the signature on the application belonged to Campbell. Campbell objected on the ground of hearsay. However, the court held matters learned in the course of an investigation were admissible.
Rule 801(c), SCRE, defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See State v. Vick, 384 S.C. 189, 199, 682 S.E.2d 275, 280 (Ct. App. 2009) (); but see State v. Thompson, 352 S.C. 552, 558, 575 S.E.2d 77, 81 (Ct. App. 2003) ().
Assuming without deciding that Jordan's testimony was hearsay, "the improper admission of hearsay testimony constitutes reversible error only when the admission causes prejudice." Vick, 384 S.C. at 199, 682 S.E.2d at 280. "Error is harmless when it could not reasonably have affected the result of the trial." Id. "[T]he admission of improper hearsay evidence is harmless where the evidence is merely cumulative to other evidence." Id. at 199-200, 682 S.E.2d at 280.
Scott Brown, assistant manager at Auto-Owners, testified that Auto-Owners issues a policy if all the medical questions on the application are answered "no," and denies the application if any of the answers are "yes." A forensic handwriting expert also testified he examined the signature on the Auto-Owners application and determined Campbell "probably" signed Father's name as the proposed insured. Therefore, we find Jordan's testimony was merely cumulative to the other evidence presented at trial, and any error in allowing the admission of Jordan's testimony was harmless.
Campbell argues the court erred in not dismissing the indictment for obtaining money or other property because a life insurance policy is not property. We disagree.
The indictment reads: Section 16-13-240 of the South Carolina Code makes it a crime for any person to obtain from another person by false pretense or representation "any chattel, money, valuable security, or other property, real or personal, with intent to cheat and defraud a person of that property." S.C. Code Ann. § 16-13-240 (2003).
At trial, Campbell moved to dismiss the indictment for obtaining property by false pretenses on the ground that a life insurance policy is a chose in action, not real or personal property. The State argued Campbell received the policy and the money from the policy, and the policy itself was a valuable security because other companies purchase life insurance policies before the death of the insured. The court denied Campbell's motion, finding the broad definition of property includes the right to receive insurance benefits.
In support of his argument that choses in action are not considered property, Campbell cites to Brown v. Brown, 279 S.C. 116, 302 S.E.2d 860 (1983), and Tiffault v. Tiffault, 303 S.C. 391, 401 S.E.2d 157 (1991). In Tiffault, the court overruled Brown and held that vested military retirement benefits constitute property, which is subject to equitable distribution. 303 S.C. at 392, 401 S.E.2d at 158. Further, in Ball v. Ball, 312 S.C. 31, 33-34, 430 S.E.2d 533, 534-35 (Ct. App. 1993), this court, in determining that nonvested pension rights are marital property, held South Carolina courts construe the term "property" very broadly, and it "is a general term that is used to designate a right of ownership and it includes every subject of whatever nature upon which the right of ownership can legally attach, including choses in action." Thus, our courts have determined choses in action are property, and we find the court did not err in denying Campbell's motion to dismiss the indictment for obtaining property by false pretenses.
Campbell argues the court erred in failing to direct a verdict because the insurance company issued the policy prior to the date of the alleged fraudulent application, and thus, the application could not form the basis for the fraudulent intent to receive a policy. We disagree.
The trial court is concerned with the existence or nonexistence of evidence, not its weight, when ruling on a motion for a directed verdict. State v. Brannon, 388 S.C. 498, 501, 697 S.E.2d 593, 595 (2010). The defendant is entitled to a directed verdict if the State fails to produce evidence of the offense charged. Id. "When reviewing a denial of a directed verdict, this court views the evidence and all reasonable inferences in the light most favorable to the nonmoving party." Id.
Campbell asserts the application for insurance was dated July 11, 2002, yet the policy was issued on June 28, 2002. Therefore, Campbell maintains the application, dated...
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