State v. Larmand

The Supreme Court of South Carolina
The State, Petitioner,
v.
Francis Larmand, Respondent.
Appellate Case No. 2013-001143
ORDER
The petition for rehearing is granted on allegations 1 and 4 in the petition, and
denied as to all other allegations in the petition. This Court dispenses with any
further briefing and substitutes the attached opinion for the opinion previously filed
in this matter. Contrary to the position taken by respondent in the petition for
rehearing, the remand ordered in the substituted opinion is to a panel of the South
Carolina Court of Appeals and not to the Court of Appeals en banc.
As to petitioner's motion to revoke bond, this Court declines to rule on this motion.
Instead, this motion should be considered by the Court of Appeals once this matter
is returned to that Court.
s/ Jean H. Toal C.J.
s/ Costa M. Pleicones J.
s/ Donald W. Beatty J.
s/ John W. Kittredge J.
s/ Kaye G. Hearn J.
Columbia, South Carolina
December 23, 2015
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
Francis Larmand, Respondent.
Appellate Case No. 2013-001143
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From York County
William H. Seals, Jr., Circuit Court Judge
Opinion No. 27562
Heard February 3, 2015 – Refiled December 23, 2015
REVERSED
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W Elliott and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
all of Columbia, for Petitioner.
C. Rauch Wise, of Greenwood, for Respondent.
CHIEF JUSTICE TOAL: The State appeals the court of appeals' decision in
State v. Larmand, 402 S.C. 184, 739 S.E.2d 898 (Ct. App. 2013), reversing the trial
court's denial of Frank Larmand's (Respondent) motion for a directed verdict on
charges for lynching, conspiracy, and pointing and presenting a firearm. We
reverse.
FACTS/PROCEDURAL BACKGROUND1
Respondent and his wife (collectively, the Larmands) are residents of
Kannapolis, North Carolina. Together, they own a branch of Pop-A-Lock, a
national locksmith franchise company providing customers with roadside
assistance and locksmith services, and operate their branch in and around the
Charlotte metropolitan area. Ryan Lochbaum worked at the Larmands' branch of
Pop-A-Lock for several years until his termination in October 2008 for misconduct
and providing unauthorized services to customers.
Approximately seven months after Lochbaum's termination, the Larmands
became suspicious that he and one of their current employees, Mike Taylor, were
conspiring to defraud Pop-A-Lock. Specifically, the Larmands believed that
Taylor would occasionally relay a customer's location to Lochbaum, who would
then place a removable magnetic sign on his vehicle and masquerade as the Pop-A-
Lock locksmith. According to the Larmands, after the customer paid Lochbaum
for "Pop-A-Lock's" services, Taylor and Lochbaum would split the money between
themselves, and Taylor would inform the Larmands that the customer had left the
designated location before he arrived.
To confirm their suspicions, the Larmands set up a "mystery shopper call"
for Taylor. During the call, Respondent's brother-in-law, Leo Lemire, posed as a
customer needing locksmith services at the Charlotte Knights' former stadium
(Knights' Stadium) located in Fort Mill, South Carolina. Respondent and Lemire
waited at the stadium in the hope of catching Taylor and Lochbaum.
Ultimately, neither Taylor nor Lochbaum responded to the telephone call.
Therefore, around midnight, Respondent and Lemire drove to Lochbaum's house in
Rock Hill, South Carolina, to investigate further, and potentially confront
Lochbaum.2 The two men parked at least one-quarter mile away from Lochbaum's
house, despite the ample street parking available closer to the house. Further, they
1
Because this appeal involves Respondent's motion for a directed verdict, we view
the evidence in the light most favorable to the State. State v. Walker, 349 S.C. 49,
53, 562 S.E.2d 313, 315 (2002).
2
At trial, a police officer and Lochbaum testified that it takes approximately one-
and-a-half hours to drive from Respondent's home in Kannapolis to Lochbaum's
home in Rock Hill.
parked their vehicle facing the neighborhood's sole entrance and exit.
Meanwhile, Lochbaum and three of his neighbors—Mark Whittington,
Devin Fivecoat, and Ron Lee—were socializing outside Lochbaum's house.
Respondent, dressed in all-black clothing, approached the group and stood and
stared silently, looking "edgy" and "agitated." Eventually, Respondent stated he
wanted to speak to Lochbaum, and Lochbaum asked his neighbors to give them
some privacy.
Respondent and Lochbaum began arguing loudly and pushing one another.
Approximately one minute into the exchange, Respondent broke eye contact with
Lochbaum and looked toward the vacant, darkened field abutting Lochbaum's
house. Lochbaum then saw Lemire (also wearing all-black clothing) approaching
quickly and pointing a handgun at Lochbaum. Lemire said, "This is what you get
when you fuck with my family," and pulled the hammer of the gun back.
Lochbaum seized the gun and began to struggle with Lemire. Respondent
placed Lochbaum in a chokehold and attempted to pull him away from Lemire.
Whittington, Fivecoat, and Lee, who had been watching the exchange from several
houses away, ran down the street and jumped into the fray in an effort to separate
Lemire, Respondent, and Lochbaum. Lochbaum's next-door neighbor, Jesse
Harris, also heard the commotion and ran out to stop the fight.3 Throughout the
scuffle, Lemire screamed at everyone, "F-you, he's f'ing with my family, he's f'ing
with my family."
Lochbaum, Whittington, Fivecoat, Lee, and Harris were able to wrestle the
gun away from Lemire and pull Respondent away from Lochbaum. Respondent
and Lemire quickly left the scene, driving at approximately sixty miles per hour in
a thirty-five mile per hour zone without illuminating the vehicle's headlights.
Ultimately, a grand jury indicted Respondent and Lemire for lynching,
conspiracy, and pointing and presenting a firearm. At trial, Respondent moved for
a directed verdict at the conclusion of the State's case. He argued that the State had
failed to provide any testimony that the attack on Lochbaum was premeditated, or
that Respondent and Lemire jointly planned the attack. Rather, Respondent
asserted he was merely speaking with Lochbaum when Lemire appeared, and he
only reacted to Lochbaum's "affirmative action" of "jump[ing] on [] Lemire" to
3
During the struggle, Harris placed his finger between the gun's hammer and the
gun to prevent it from being fired. At some point, the hammer of the gun "clicked"
on Harris's finger, indicating that the gun would have discharged during the fight
had Harris's finger not stopped the hammer.
grab the gun. The trial court denied Respondent's motion, and the jury later
convicted Respondent and Lemire of second-degree lynching, criminal conspiracy,
and pointing and presenting a firearm.
The court of appeals reversed the trial court's decision to deny Respondent's
motion for a directed verdict. Larmand, 402 S.C. at 187, 739 S.E.2d at 900.
Specifically, with respect to the lynching and conspiracy charges, the court of
appeals found a complete lack of evidence of premeditation or a common plan to
assault Lochbaum. Id. at 190–94, 739 S.E.2d at 901–03. With respect to the
firearm charge, the court of appeals found that the State did not present any
evidence of a conspiracy between Respondent and Lemire, and it was undisputed
that Respondent never had possession of the gun. Id. at 194, 739 S.E.2d at 903–04.
Therefore, the court of appeals reversed all three of Respondent's convictions. Id.
at 194, 739 S.E.2d at 904.4
We granted the State's petition for a writ of certiorari to review the court of
appeals' decision.
ISSUE
Whether the court of appeals applied the correct standard of review in
considering the trial court's denial of Respondent's directed verdict
motion?
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). A court is "bound
by the trial court's factual findings unless they are clearly erroneous." Id.ANALYSIS
"A defendant is entitled to a directed verdict when the State fails to produce
evidence of the offense charged." State v. Walker, 349 S.C. 49, 53, 562 S.E.2d
313, 315 (2002). In reviewing a defendant's motion for a directed verdict, the trial
judge is only concerned with the existence of evidence, not with its weight. State
v. Butler, 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014) (citation omitted).
On appeal from the denial of a directed verdict, appellate courts must view
the evidence and reasonable inferences in the light most favorable to the State. Id.4
Because the court of appeals found these issues dispositive, it did not reach the
remainder of Respondent's arguments on appeal.
If there is either any direct evidence or any substantial circumstantial evidence
reasonably tending to prove the defendant's guilt, appellate courts must find that
the trial judge properly submitted the case to the jury. State v. Cherry, 361 S.C.
588, 593–94, 606 S.E.2d 475, 478 (2004); see also Walker, 349 S.C. at 53, 562
S.E.2d at 315 ("When a motion for a directed verdict is made in a criminal case
where the State relies exclusively on circumstantial evidence, the trial judge is
required to submit the case to the jury if there is any substantial evidence which
reasonably tends to prove the guilt of the accused, or from which his guilt may be
fairly and logically deduced." (citation omitted)).
In pursuing a lynching conviction, the State must produce at least some
evidence that two or more persons had a common, premeditated intent to commit a
joint act of violence on the person of another. See S.C. Code Ann. § 16-3-220(2003) (defining second-degree lynching as "[a]ny act of violence inflicted by a
mob upon the body of another person and from which death does not result")
(recodified as amended at S.C. Code Ann. § 16-3-210(C) (Supp. 2014)); S.C. Code
Ann. § 16-3-230 (2003) (defining a mob as "the assemblage of two or more
persons, without color or authority of law, for the premeditated purpose and with
the premeditated intent of committing an act of violence upon the person of
another") (recodified at S.C. Code Ann. § 16-3-210(A) (Supp. 2014)); State v.
Smith, 352 S.C. 133, 137, 572 S.E.2d 473, 475 (Ct. App. 2002). The premeditated
intent to do violence may be formed either before or during the assemblage, but by
definition cannot be spontaneous. Smith, 352 S.C. at 137, 572 S.E.2d at 475.
Moreover, "[t]o establish the existence of a conspiracy, proof of an express
agreement is not necessary, and direct evidence is not essential, but the conspiracy
may be sufficiently shown by circumstantial evidence and the conduct of the
parties." State v. Kelsey, 331 S.C. 50, 63, 502 S.E.2d 63, 70 (1998).5 Because the
crime of conspiracy is the agreement itself, the State need not show any overt acts
in furtherance of the common scheme or plan. State v. Wilson, 315 S.C. 289, 292,
294, 433 S.E.2d 864, 867, 868 (1993). Nonetheless, substantive crimes committed
in furtherance of the conspiracy may constitute circumstantial evidence from
which a jury could infer the existence of the conspiracy, its object, and scope. Id.At issue here is whether the State presented any evidence demonstrating a
5
See also S.C. Code Ann. § 16-17-410 (2003 & Supp. 2014) (defining a criminal
conspiracy as "a combination between two or more persons for the purpose of
accomplishing an unlawful object or lawful object by unlawful means"); State v.
Gunn, 313 S.C. 124, 134, 437 S.E.2d 75, 80 (1993) (stating that the "gravamen of
the offense of conspiracy is the agreement or combination," not merely a common
objective between similarly situated people (citations omitted)).
premeditated intent on the part of Respondent to assault Lochbaum (for the
lynching charge), or that Respondent and Lemire entered into an agreement to
perpetrate the assault (for the conspiracy charge).6 The State contends that the
court of appeals applied an improper standard of review in conducting its inquiry.
Specifically, the State argues that the court of appeals expressly credited the
defense evidence and made credibility determinations, thereby erroneously
substituting its own judgment for that of the trial court and the jury. We agree.
While the court of appeals should have considered the evidence in the light
most favorable to the State, it instead primarily cited to Respondent's and Lemire's
testimony, including their explanations for their actions. See, e.g., Larmand, 402
S.C. at 191–92, 739 S.E.2d at 902; id. at 194, 739 S.E.2d at 903. In doing so, the
court of appeals incorrectly minimized the circumstantial evidence the State
presented regarding premeditation and an agreement between Respondent and
Lemire.
Specifically, the State demonstrated: (1) Respondent and Lemire lived
approximately one-and-a-half hours away from Lochbaum's house; (2) Respondent
and Lemire arrived at Lochbaum's neighborhood late at night, unannounced; (3)
Respondent and Lemire wore all-black clothing; (4) Respondent and Lemire
parked their vehicle over one-quarter mile away from Lochbaum's house, facing
the sole entrance and exit to the neighborhood, despite ample street parking near
Lochbaum's house; (5) Respondent and Lemire approached Lochbaum's house on
foot, rather than conducting a "drive by" to look for incriminating evidence of
Lochbaum's involvement in the scheme to defraud Pop-A-Lock, such as the
magnetic sign on Lochbaum's vehicle; (6) Respondent was "edgy" and "agitated"
when he approached Lochbaum's house, and stood and stared silently at Lochbaum
and his neighbors; (7) Respondent broke off arguing with and pushing Lochbaum
to observe Lemire's approach from the adjoining vacant, darkened lot; (8) Lemire
approached Respondent and Lochbaum a mere one minute after Whittington,
Fivecoat, and Lee departed, despite parking at least one-quarter mile away; (9)
Lemire approached from a vacant, darkened lot rather than from the lit street or
sidewalk; (10) upon his approach, Lemire immediately pointed the gun at
Lochbaum and drew the hammer of the gun back; (11) Lemire told Lochbaum,
"This is what you get when you fuck with my family," and later during the
altercation refused to let go of his gun because Lochbaum was "f'ing with [his]
family;" (12) Respondent never confronted Lemire or tried to get him to lower the
weapon or return to their vehicle; and (13) Respondent and Lemire drove away
6
We need not address the firearm charge separately, as its validity rises and falls
on the existence of a conspiracy under the "hand of one is the hand of all" theory.
together at a high rate of speed without illuminating their vehicle's headlights.
Although Respondent presented plausible explanations for each of these
facts, our duty is not to weigh the plausibility of the parties' competing
explanations. Rather, we must assess whether, in the light most favorable to the
State, there was substantial circumstantial evidence from which the jury could infer
Respondent's guilt. Cf. Jackson v. Virginia, 443 U.S. 307, 317 n.9 (1979) (citing
Holland v. United States, 348 U.S. 121, 140 (1954) (rejecting the contention that
circumstantial evidence must exclude every hypothesis but that of guilt)). Given
the deferential standard of review, we find the State presented sufficient
circumstantial evidence of premeditation and a common plan or scheme such that
the trial judge properly denied Respondent's motion for a directed verdict.
Accordingly, the court of appeals erred in reversing Respondent's convictions.
CONCLUSION
For the foregoing reasons, the decision of the court of appeals is reversed.
However, because the court of appeals did not address the remainder of
Respondent's arguments on appeal, we remand the matter to the court of appeals
for further action not inconsistent with this opinion.
REVERSED.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.