State v. Nance ( 2013 )

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.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Reginald A. Nance, Appellant.
Appellate Case No. 2010-160486
Appeal From Pickens County
G. Edward Welmaker, Circuit Court Judge
Unpublished Opinion No. 2013-UP-215
Heard May 6, 2013 – Filed May 22, 2013
AFFIRMED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General Julie Kate Keeney, all of Columbia, for
Respondent.
PER CURIAM: Reginald Nance appeals his conviction for possessing a weapon
during the commission of a violent crime, arguing the trial court erred in refusing
to direct a verdict in his favor after the State presented no evidence of a nexus
between a pair of burglaries and a gun recovered from an automobile in the
parking lot of the burglarized stores. We affirm.
An appellate court reviewing the denial of a motion for a directed verdict "views
the evidence and all reasonable inferences in the light most favorable to the [S]tate.
If there is any direct evidence or any substantial circumstantial evidence
reasonably tending to prove the guilt of the accused, [an appellate c]ourt must find
the case was properly submitted to the jury." State v. Weston, 367 S.C. 279, 292-
93, 625 S.E.2d 641, 648 (2006). "It is a well-established rule in criminal cases that
unless there is a total failure of evidence tending to establish the charge laid in the
indictment, the trial judge's ruling upon a motion for a directed verdict of acquittal
must stand absent an error of law." State v. Nix, 288 S.C. 492, 496, 343 S.E.2d
627, 629 (Ct. App. 1986).
Section 16-23-490(A) of the South Carolina Code (2003) requires the imposition
of a five-year prison sentence if "a person is in possession of a firearm . . . during
the commission of a violent crime and is convicted of committing or attempting to
commit a violent crime as defined in Section 16-1-60." Second-degree burglary is
classified as a violent crime. S.C. Code Ann. § 16-1-60 (Supp. 2012). For the
purposes of this statute, the possession of a firearm may be either actual or
constructive. State v. Jennings, 335 S.C. 82, 86, 515 S.E.2d 107, 109 (Ct. App.
1999).
In 2012, our supreme court reviewed section 16-23-490(A) and determined that, in
addition to possession of a weapon during the commission of a violent crime, the
State must also prove a nexus between the weapon and the crime. State v.
Whitesides, 397 S.C. 313, 318-19, 725 S.E.2d 487, 490 (2012). It reasoned:
The subject matter and general purpose of the statute lead
us to conclude that the General Assembly intended to
penalize possession of a firearm only when possession
furthers or is intended to further a violent crime. . . .
Visibly displaying a knife or an object that appears to be
a firearm furthers the criminal's objectives by increasing
the cost of resistance or interference. Thus, a nexus is
inherent in this prohibited conduct.
The statute also criminalizes the possession of a firearm
during the commission of a violent crime even if not
visibly displayed. Because a firearm has greater power
to inflict harm, its mere presence at the scene of the
crime is a greater threat than that of a knife or an object
that appears to be a firearm. Thus, the General Assembly
determined that merely possessing a firearm in
furtherance of a violent crime warrants a penalty.
However, the fact that the General Assembly sought to
deter even the possession of a firearm in connection with
a violent crime does not suggest that it intended to
criminalize any possession of a firearm, no matter how
unrelated, during the commission of a violent offense.
The General Assembly's evident purpose was to increase
the penalty of engaging in more dangerous conduct,
whether that conduct is displaying a knife, firearm, or
object that appears to be a firearm or possessing a firearm
in furtherance of a violent offense. The General
Assembly's purpose would not be furthered by penalizing
possession of a firearm that is entirely unrelated to the
violent offense. Indeed, finding that no nexus is required
may raise constitutional questions in some cases, since
the Second Amendment protects the possession of lawful
firearms by ordinary citizens. We have no reason to
suppose that the General Assembly intended to create
constitutional questions, and our interpretation of the
statute avoids them.
In sum, we find that the General Assembly's purpose in
enacting this statute was to penalize defendants who
actually or constructively possess a firearm in order to
further a violent crime and who thereby increase the
attendant risk of harm. We therefore hold that such a
nexus must be established in order to convict a defendant
for possessing a firearm during the commission of a
violent crime. . . .
A nexus may be established by showing that the firearm
furthered, advanced, or helped in the commission of the
crime. A nexus between possession of a firearm and
drug trafficking would exist if the firearm is accessible to
the trafficker and thereby provides defense against
anyone who may attempt to rob the trafficker of his drugs
or drug profits. Similarly, possessing a gun, and letting
everyone know that you are armed, lessens the chances
that a robbery will even be attempted.
Id. at 317-19, 725 S.E.2d at 489-90 (citations, footnotes, and quotation marks
omitted). In reaching this decision, our supreme court aligned South Carolina with
other jurisdictions that had considered similar facts and law. Id. at 319, 725 S.E.2d
at 490. In one of the cases cited by the Whitesides court, the Fifth Circuit Court of
Appeals listed several factors that might assist in answering the question "whether
a particular defendant's possession [of a weapon] further[ed], advance[d], or
help[ed] forward" an offense. United States v. Ceballos-Torres, 218 F.3d 409,
414-15 (5th Cir. 2000). In reviewing a conviction for weapon possession
connected to cocaine distribution,1 the Ceballos-Torres court identified "the type of
drug activity that is being conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the possession (legitimate or
illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time
and circumstances under which the gun is found." Id. at 414-15.
Here, Nance was convicted of two counts of second-degree violent burglary, each
of which section 16-1-60 classifies as a violent offense. On appeal, Nance
challenges the nexus between the gun and the burglaries but not his constructive
possession of the gun. Whitesides, which was published during the pendency of
1
We are aware most published opinions addressing the possession of a weapon
during the commission of a violent crime result from prosecutions for drug-related
offenses. Although cognizant of the "indisputable nexus between drugs and guns,"
we do not assume for purposes of this opinion that a similar connection exists
between other crimes and guns. See, e.g., State v. Butler, 353 S.C. 383, 391, 577
S.E.2d 498, 502 (Ct. App. 2003) (noting heightened danger to a law enforcement
officer stopping a motorist suspected of drug offenses justifies a pat-down frisk of
the motorist and passengers (quoting United States v. Sakyi, 160 F.3d 164, 169 (4th
Cir. 1998))). Nonetheless, we find the Ceballos-Torres factors are useful in
determining whether a nexus exists between a weapon and illegal activity.
Nance's appeal, is instructive. Under Whitesides, a nexus exists if the State
presents evidence "the firearm furthered, advanced, or helped in the commission of
the crime." Id. at 319, 725 S.E.2d at 490. We find the State presented evidence
establishing a nexus between the gun and the burglaries.
The State demonstrated Nance purchased a car for his girlfriend and pretended to
leave it at her house for the night. Instead, he used the car to pick up a friend and,
together, the men broke into two businesses. The girlfriend testified Nance's
zippered notebook, in which the gun was hidden, had not been in the car when she
locked it for the night. Nance's cohort in the burglaries testified Nance had access
to the gun each time he returned to the car, such as when he placed the drawer of
rolled coins in the back seat.
When police officers arrived, Nance's car, engine running, was parked behind the
burgled businesses. Officers found the gun hidden in the zippered notebook in the
back seat area, mixed in with property stolen from the Local Cash Advance and
Tobacco Warehouse, and within easy reach of Nance as he placed the stolen
property in the car. According to the officer who found it, the gun was loaded,
with eight rounds in the magazine and another in the chamber.
The majority of the Ceballos-Torres factors weigh in favor of a nexus. Nance
burglarized two businesses and kept the handgun within reach as he put stolen
goods into the car. The police officers who interrupted the burglary found the gun,
which was loaded with nine rounds, inches away from the stolen property.
Therefore, we find the evidence indicates Nance placed the gun in the car, and the
gun "furthered, advanced, or helped in the commission" of the burglaries by
providing a possible defense against anyone who either confronted Nance during
the crime or attempted to take the stolen property away from him. Accordingly,
the decision of the trial court is
AFFIRMED.
SHORT and PIEPER, JJ., and CURETON, A.J., concur.