State v. Sosebee ( 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.
William Sosebee, Appellant.
Appellate Case No. 2011-205447
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Unpublished Opinion No. 2013-UP-267
Heard June 4, 2013 – Filed June 19, 2013
AFFIRMED
Stephen D. Schusterman, of Schusterman Law Firm, of
Rock Hill, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Julie Kate Keeney, both of Columbia,
for Respondent.
PER CURIAM: William Sosebee appeals his convictions for attempted armed
robbery and kidnapping, arguing the trial court erred in denying his motions for:
(1) directed verdict or judgment notwithstanding the verdict (JNOV) on the charge
of kidnapping; (2) directed verdict and/or JNOV on the charge of attempted armed
robbery; and (3) dismissal of all charges based on double jeopardy. We affirm
pursuant to Rule 220(b), SCACR, and the following authorities:
1. As to this court's standard of review: State v. Brandt, 393 S.C. 526, 542,
713 S.E.2d 591, 599 (2011) (holding this court must find the case was properly
submitted to the jury if there is any direct or substantial circumstantial evidence
that reasonably tends to prove the guilt of the accused); id. ("When reviewing a
denial of a directed verdict, an appellate court views the evidence and all
reasonable inferences in the light most favorable to the State."); State v. Cherry,
361 S.C. 588, 594, 606 S.E.2d 475, 478 (2004) ("[A] trial judge is not required to
find that the evidence infers guilt to the exclusion of any other reasonable
hypothesis."); State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998) (stating
the trial court is concerned with the existence of evidence rather than its weight
when ruling on a motion for a directed verdict).
2. As to kidnapping: S.C. Code Ann. § 16-3-910 (2003) ("Whoever shall
unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other
person by any means whatsoever without authority of law . . . ."); State v. Hall, 280
S.C. 74, 77-78, 310 S.E.2d 429, 431-32 (1983) (holding the act of confinement can
constitute the separate offense of kidnapping when it is incidental to the
commission of another crime); State v. Porter, 389 S.C. 27, 39, 698 S.E.2d 237,
243 (Ct. App. 2010) ("Kidnapping is a continuous offense that commences when
one is wrongfully deprived of freedom and continues until freedom is restored.");
State v. Follin, 352 S.C. 235, 258, 573 S.E.2d 812, 824 (Ct. App. 2002) ("A motion
for JNOV is a civil trial motion, and thus it is improper for a party to move for
JNOV in a criminal trial.").
3. As to attempted armed robbery: S.C. Code Ann. § 16-11-330 (A) (2003)
("A person who commits attempted robbery while armed with a pistol, dirk,
slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, either
by action or words, he was armed while using a representation of a deadly weapon
or any object which a person present[s] during the commission of the robbery
reasonably believed to be a deadly weapon, is guilty of a felony . . . ."); State v.
Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995) ("Robbery is defined as the
felonious or unlawful taking of money, goods or other personal property of any
value from the person of another or in his presence by violence or by putting such
person in fear."); State v. Thompson, 374 S.C. 257, 262, 647 S.E.2d 702, 705 (Ct.
App. 2007) ("The crime is 'armed robbery' when a person commits a robbery while
armed with a deadly weapon."); id. ("A person is guilty of attempted armed
robbery if the person has a specific intent to commit armed robbery."); Follin, 352
S.C. at 258, 573 S.E.2d at 824 ("A motion for JNOV is a civil trial motion, and
thus it is improper for a party to move for JNOV in a criminal trial.").
4. As to double jeopardy: State v. Parker, 391 S.C. 606, 612-13, 707 S.E.2d
799, 802 (2011) ("[T]he determination of whether double jeopardy attaches
depends upon whether the prosecutorial conduct was undertaken with the intent to
subvert the Double Jeopardy Clause."); id. at 612, 707 S.E.2d 799, 802
("Prosecutorial conduct that might be viewed as harassment or overreaching, even
if sufficient to justify a mistrial on defendant's motion . . . does not bar retrial
absent intent on the part of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause." (quoting Oregon v. Kennedy, 456 U.S. 667, 675-76
(1982))); id. ("Hence, a properly granted mistrial poses no double jeopardy bar to a
subsequent prosecution."); State v. Kirby, 269 S.C. 25, 29, 236 S.E.2d 33, 34
(1977) (holding the constitutional prohibition against double jeopardy permits a
retrial following a mistrial if there was "manifest necessity" for the mistrial); State
v. Coleman, 365 S.C. 258, 263, 616 S.E.2d 444, 447 (Ct. App. 2005) ("The trial
court's finding concerning the prosecutor's intent is a factual one and will not be
disturbed on appeal unless clearly erroneous."); State v. Mathis, 359 S.C. 450, 460,
597 S.E.2d 872, 877 (Ct. App. 2004) (noting a defendant who moves for and is
granted a mistrial can invoke the Double Jeopardy Clause to prevent a second
prosecution if the prosecutor's conduct giving rise to the mistrial was intended to
"goad" or provoke him into moving for the mistrial).
AFFIRMED.
SHORT, THOMAS, and PIEPER, JJ., concur.