The State v. Phillips, 4833.

• Decision Date: 04 August 2011
• Docket Number: No. 4833.,4833.
• Citation: 712 S.E.2d 457,393 S.C. 407
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent,v.Lawrence PHILLIPS, Appellant.

393 S.C. 407

712 S.E.2d 457

The STATE, Respondent,

v.Lawrence PHILLIPS, Appellant.

No. 4833.

Court of Appeals of South Carolina.

Heard April 5, 2011.Decided May 25, 2011.Rehearing Denied Aug. 4, 2011.

Appellate Defenders M. Celia Robinson and Breen Stevens, both 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, all of Columbia; and Solicitor Issac McDuffie Stone, III, of Beaufort, for Respondent.CURETON, A.J.

Lawrence Phillips appeals his conviction and sentence for second-degree arson, arguing the trial court erred in refusing to direct a verdict of acquittal and in sentencing him to life imprisonment without the possibility of parole (LWOP). We affirm the refusal to direct a verdict but reverse the LWOP sentence and remand for resentencing.

FACTS

Phillips lived in a double-wide mobile home he rented from James Cook. On September 14, 2007, Phillips packed his belongings in his car and drove away. Within minutes, the mobile home burned.

Phillips was indicted and tried for second-degree arson. The State notified him it intended to seek a sentence of LWOP based upon a 1979 conviction from South Carolina for “burning” and a 1985 conviction from Florida for second-degree burglary. Phillips had pled guilty to the 1979 offense and received a youthful offender sentence. Prior to trial, Phillips moved to “disqualify” the State's LWOP notice. He argued that neither of the listed offenses was a serious or a most serious offense for sentence enhancement purposes. The State submitted a copy of the 1979 indictment, which stated Phillips burned “a building, the property of Laurens County School District # 56.” The trial court determined the 1979 conviction for burning contained the same elements as second-degree arson, a serious offense. Furthermore, the trial court found the 1985 second-degree burglary conviction from Florida constituted a serious offense. Accordingly, the trial court did not preclude the State from pursuing an LWOP sentence.

Phillips was tried in July 2008. Lori Joslin, Phillips's next-door neighbor, recalled that at approximately 7:00 a.m. on September 14, 2007, Phillips visited her to retrieve a rifle she had stored for him and to leave a lawnmower at her home. According to Joslin, Phillips stated he was leaving town and wondered aloud how his house would look in flames. Joslin watched as Phillips packed many of his personal belongings into his car and left. She did not believe he intended to return. Within thirty minutes after their conversation, Joslin looked out her window and saw flames and smoke coming from Phillips's home. Joslin called 911 and reported the fire.

Emergency personnel arrived and extinguished the fire. A paramedic who responded to the call testified he found two fires inside the home. The South Carolina Law Enforcement Division (SLED) investigated the fires and determined they had been intentionally set, originating in the living room and the master bedroom.

Phillips's sister, Rhonda Wilson, testified she went to her brother's house on the day it burned to feed his animals. She added that Phillips regularly asked her to feed his animals when he went out of town. Wilson testified that when she arrived, the fire had been extinguished, but she found her brother's pit bull, rabbits, and quail at the house. While there, Wilson retrieved their father's golf clubs, a rake, a shovel, a garden hose, and some gas cans.

Phillips moved the trial court to direct a verdict in his favor, arguing that because he left the house without intending to return, the house did not qualify as a dwelling. According to Phillips, arson in the third degree, rather than in the second degree, was the appropriate charge because the house was an unoccupied building instead of a dwelling. The trial court denied the motion and submitted the issue to the jury. However, the trial court charged the jury on both second-degree and third-degree arson.

Shortly after beginning deliberations, the jury sent the trial court a note asking for the definition of reasonable doubt and whether someone must actually live in a house for it to be considered a dwelling. The trial court provided the jury with a written copy of the jury charge. The jury returned a verdict of guilty of second-degree arson. Based upon the 1979 and 1985 convictions for burning and second-degree burglary, respectively, the trial court sentenced Phillips to LWOP. This appeal followed.

STANDARD OF REVIEW

“In criminal cases, the appellate court sits to review errors of law only.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court is bound by the trial court's factual findings unless they are clearly erroneous. Id.

LAW/ANALYSIS

I. Directed Verdict on the Charge of Second–Degree Arson

Phillips first argues the trial court erred in refusing to direct a verdict on the charge of second-degree arson. He contends that when he departed from the home, it no longer qualified as a dwelling house. We disagree.

A. Directed Verdict

“A defendant is entitled to a directed verdict when the State fails to present evidence of the offense charged.” State v. Heath, 370 S.C. 326, 329, 635 S.E.2d 18, 19 (2006). A trial court considering a motion for directed verdict is concerned with the existence or nonexistence of evidence, not with its weight. State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). When reviewing the denial of a directed verdict, the appellate court views the evidence and all reasonable inferences in the light most favorable to the State. Id. An appellate court may reverse the trial court's denial of a directed verdict motion only if no evidence supports the trial court's ruling. State v. Gaster, 349 S.C. 545, 555, 564 S.E.2d 87, 92 (2002). If any direct evidence or substantial circumstantial evidence reasonably tends to prove the guilt of the accused, this court must find the case was properly submitted to the jury. Weston, 367 S.C. at 292–93, 625 S.E.2d at 648.

B. Arson Statutes

In 2007, the South Carolina Code defined second-degree arson as follows:

A person who wilfully and maliciously causes an explosion, sets fire to, burns, or causes to be burned or aids, counsels, or procures the burning that results in damage to a dwelling house, church or place of worship, a public or private school facility, a manufacturing plant or warehouse, a building where business is conducted, an institutional facility, or any structure designed for human occupancy to include local and municipal buildings, whether the property of himself or another, is guilty of arson in the second degree....

S.C.Code Ann. § 16–11–110(B) (Supp.2007).

For the purposes of the arson and burglary statutes, a “dwelling house” is “any house, outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property.” S.C.Code Ann. § 16–11–10 (2003). In addition, “all houses, outhouses, buildings, sheds and erections which are within two hundred yards of [any dwelling house] and are appurtenant to it” constitute parcels of the dwelling house. Id.

We affirm the trial court's refusal to direct a verdict of acquittal on the charge of second-degree arson because the evidence adduced at trial required that the issue be submitted to the jury. Phillips contends his abandonment of the mobile home prior to Joslin's observing the fire changed its status as a dwelling. This argument is meritless. In State v. Glenn, Glenn and her husband purchased and lived in a mobile home until her husband died. 297 S.C. 29, 30, 374 S.E.2d 671, 671 (1988). After holding a wake for her husband in the mobile home, Glenn learned the home might be repossessed. Id. at 30–31, 374 S.E.2d at 671. She announced to family members that the home would burn before she allowed it to be repossessed. Id. at 31, 374 S.E.2d at 671. A few days after the funeral, Glenn stopped by the home and retrieved her Bible; shortly thereafter, a witness found the home in flames. Id. at 31, 374 S.E.2d at 671–72. Glenn was tried for second-degree arson and sought a directed verdict based on her contention the mobile home was not a “dwelling” because no one lived there at the time of the fire. Id. at 31, 374 S.E.2d at 672. Our supreme court affirmed the denial of a directed verdict, holding that despite Glenn's departure and removal of her belongings, “ample evidence existed that ... Glenn did not vacate her mobile home but left with the intention of returning.” Id. at 32, 374 S.E.2d at 672.

In the case at bar, Phillips avers he “left” the mobile home on the morning of the fire, intending never to return. He retrieved his gun from Joslin's care and loaded his car with most of his belongings. However, he left his lawnmower with Joslin, his father's golf clubs in his mobile home, and several live animals at his home. Phillips's leaving his lawnmower with Joslin was an ambiguous act that could support either Phillips's abandonment of the home or his intent to return.¹ Leaving his father's golf clubs and his rake, shovel, garden hose, and gas cans in the mobile home would suggest Phillips intended to return only if he valued those items. Certainly, his sister did; she retrieved them after the fire. However, Phillips's leaving his dog, rabbits, and quail at the mobile home is evidence he intended to return as he had done often before. Wilson testified her brother regularly asked her to feed his animals when he went out of town, and she went to his house the day of the fire to feed them.

Viewed together, this evidence supports a finding that Phillips “left with the intention of returning,” certainly to care for his animals and possibly to resume living in the home. See id. Consequently, the trial court did not err in refusing to direct a...