DocketNumber： 3383
Citation Numbers： 553 S.E.2d 464, 347 S.C. 153
Judges： Huff, Shuler, Anderson
Filed Date： 2/25/2002
Status： Precedential
Modified Date： 10/19/2024
Jon Pierre LaCoste was convicted of resisting arrest, disorderly conduct, and assault. He appeals, arguing the trial court erred in (1) refusing to grant a directed verdict on each of his indicted charges, (2) excluding certain hearsay statements, (3) refusing to give a full and complete charge on the right to resist an illegal arrest, and (4) charging simple assault as a lesser included offense of criminal domestic violence. We reverse and remand.
FACTUAL/PROCEDURAL BACKGROUND
LaCoste was indicted on charges of criminal domestic violence (CDV), resisting arrest, and disorderly conduct following an incident at The Galleria Mall in York County. At trial, Joyce Giles testified she visited the mall on the afternoon of July 14, 1998. As she was leaving in her car, she noticed a man and a woman “hitting at each other.” The man, whom she identified as LaCoste, “grabbed at [the woman],” who “jerked away,” and began striking him with her purse. She believed LaCoste was trying to rob the woman and that the woman was attempting to get away from him. She was also concerned because LaCoste was considerably larger than the woman. LaCoste slapped at the woman, making contact seven or eight times. As the pair moved about the parking lot exchanging blows, Giles called 9-1-1. During the four to five minutes before the police arrived, the two continued “pushing and shoving each other.”
Officer Jeremy McCloud of the Rock Hill Police Department testified he arrived at the mall in response to a possible domestic disturbance dispatch. As he approached, he noticed the man and woman in . a verbal altercation which he immedi
By this time, Officer Jeffrey Cornwell of the York County Sheriffs Department arrived to assist McCloud. LaCoste continued to resist and was sprayed by Officer Cornwell, again to no avail. He held his arms straight to avoid being handcuffed. The two officers held LaCoste on the hood of the car until additional units arrived and only then were they able to physically overpower him and handcuff him. Because he had been in an altercation with LaCoste, Officer McCloud did not personally conduct any interviews.
Giles testified she approached the woman after officers placed LaCoste in a police car. The woman said LaCoste was her husband, he was a karate expert, and she was afraid of him.
LaCoste and his wife testified in his defense. The couple had separated approximately two or three weeks prior to the incident and remained separated at the time of trial. They both testified Mrs. LaCoste came to the mall looking for her husband to discuss finances. LaCoste was at the mall buying shoes. Mrs. LaCoste, who was already upset, became angry when she saw LaCoste’s girlfriend, Angela Ervin, who was working at the mall. Ervin saw Mrs. LaCoste and smirked at
Once outside the mall, Mrs. LaCoste checked to see if Ervin was inside LaCoste’s car. Ervin was not inside, but Mrs. LaCoste grabbed a shopping cart and banged it into the car’s headlights. She then began scratching the car with her keys. LaCoste pleaded with her to stop, telling her someone was going to see her and she might get arrested. She then turned the keys on LaCoste, lunging at him with the keys in one hand while swinging her purse at him with her other hand. After a while, he grabbed the keys from her and threw them to the ground. Mrs. LaCoste testified her husband never hit her.
About this time, Officer McCloud arrived. LaCoste testified he tried to explain the situation to the officer, but the officer would not listen. He testified that during the altercation with his wife, he asked a woman who was with a man in a military uniform to call the police and the woman then walked over to a telephone. He thus thought McCloud was there upon his request. LaCoste stated he did not comply with McCloud’s requests that he put his arms behind his back to be handcuffed because he knew he had not done anything wrong.
The jury found LaCoste guilty on the indictments for resisting arrest and disorderly conduct. On the charge of criminal domestic violence, the jury found him guilty of simple assault, which the trial court submitted as a lesser included offense. The trial court sentenced him to one year imprisonment, suspended upon service of ninety days with one year of probation for resisting arrest, and thirty days imprisonment, suspended, with one year probation for the disorderly conduct and simple assault convictions. This appeal follows.
LAW/ANALYSIS
I. Statements of Unknown Declarants
LaCoste argues the trial court erred in refusing to admit certain hearsay statements made by two unknown bystanders, one male and one female, which corroborated his testimony. He contends the statements were admissible under the excited utterance exception. As to the male bystander, we agree.
The court held an in camera hearing upon LaCoste’s request to determine the admissibility of any statements made by the unknown man and woman. During the hearing, Corn-well testified the man who approached him said LaCoste did not assault the lady (Mrs. LaCoste), he had done nothing wrong, and police should not be trying to handcuff him. He indicated LaCoste was in fact the victim of the woman’s attack. Cornwell remembers the man was speaking and that he claimed to be a witness to the incident. However, Cornwell testified he did not know whether the man was in fact an eyewitness. About the woman, Cornwell testified he didn’t recall her having much to say and stated, “I think she was there for the same purpose, but I didn’t really get in a conversation with her.” The trial court refused to admit the unknown man’s statement because Cornwell was not able to verify the man was an eyewitness and, as such, the probative value of the statements was outweighed by the prejudice because the statements were unreliable. LaCoste was permitted, however, to elicit some testimony about the man and woman in the jury’s presence. Cornwell testified he thought the man and woman were together, but he was not certain. Both were agitated and claimed to be witnesses, but the woman appeared less agitated than the man.
LaCoste also proffered the testimony of James Whiting, a mall security officer, concerning the two bystanders. Whiting testified he received a call that an officer needed help in the parking lot. When he reached the parking lot, he saw LaCoste in handcuffs and a number of police cars. He also saw an elderly man and lady who were “hollering,” “He didn’t do it. He didn’t do it.” The pair were upset, and ■ said the
Rulings on the admissibility of evidence are within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of that discretion resulting in prejudice to the complaining party. State v. Hughey, 389 S.C. 439, 453, 529 S.E.2d 721, 728-29 (2000); State v. Varvil, 338 S.C. 335, 340, 526 S.E.2d 248, 251 (Ct.App.2000).
Hearsay is inadmissible except as provided by statute, the South Carolina Rules of Evidence, or other court rules. Rule 802, SCRE. The excited utterance exception permits introduction of a hearsay statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Rule 803(2), SCRE. “The rationale behind the excited utterance exception is that the startling event suspends the declarant’s process of reflective thought, reducing the likelihood of fabrication. In determining whether a statement falls within the excited utterance exception, a court must consider the totality of the circumstances.” State v. Dennis, 337 S.C. 275, 284, 523 S.E.2d 173, 177 (1999).
Our supreme court addressed the admissibility of hearsay statements made by unknown declarants in State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998). Hill was convicted of murdering a police officer in the parking lot of a car wash after the officer pulled him over. Id. at 98, 501 S.E.2d at 124. His defense at trial was that a person who had been hiding in his backseat shot the officer. Id. at 99, 501 S.E.2d at 124. The defense offered testimony of Kenneth Grant, a man who went to the car wash approximately fifteen minutes after the shooting. Grant testified in camera that after being at the car wash for fifteen or twenty minutes, he heard an unknown person in the crowd say there were two suspects. Id. at 99, 501 S.E.2d at 125. Hill attempted to introduce the statement under the
The supreme court agreed, and held the excited utterance exception is limited to firsthand information, such as the statements of an actual witness to an event. Id. The court further held, “[t]he hearsay statement of an unknown bystander is admissible under the excited utterance exception only when the circumstances which surround it would affect the declarant in a way that assures its spontaneity and, therefore, its reliability for trustworthiness.” Id. at 99-100, 501 S.E.2d at 125. The unknown declarant must have had an opportunity to personally observe the matter and must have perceived the event, and if the circumstances indicate the bystander did not observe the act, the declaration should be excluded. Id. at 100, 501 S.E.2d at 125. In Hill, the statement made by the unknown declarant occurred some thirty to thirty-five minutes after the event, and there was no indication that the knowledge of the declarant was firsthand. Because there was no evidence the unknown declarant witnessed the shooting and it was unknown whether the declaration was made “under the stress of excitement cause by the event,” the supreme court found no error in the trial court’s exclusion of Grant’s testimony. Id.
Under the totality of the circumstances, we find the statements of the unknown male bystander should have been admitted. First, the defense was prepared to offer evidence the man was an actual eyewitness to the incident between LaCoste and his wife. Cornwell testified the man talked with him and identified himself as a witness to the events. Hill indicates statements are limited to firsthand knowledge, but does not require the firsthand knowledge of unknown declarants be established by evidence outside the statements themselves. Therefore, the man’s claim to Cornwell that he witnessed the event was sufficient.
Second, the evidence demonstrates the man was under the stress of a startling event to the extent that his ability for reflective thought was suspended, and thus his statements fit within the excited utterance exception as the court found. According to Cornwell, the man was agitated and claimed to be a witness to the altercation in question. The fact that he
II. Directed Verdict Motions
LaCoste also contends the trial court should have directed a verdict in his favor on each of the indicted offenses because Officer McCloud did not have probable cause to arrest him when he placed him under arrest, and thus his resistance of the arrest was lawful. We disagree.
First, we note appellant did not specifically raise any lack of probable cause to arrest as a ground in his motion for directed verdict. Further, in ruling on a motion for a directed verdict, the trial court considers the existence of evidence rather than its weight, and if there is any direct or substantial circumstantial evidence tending to prove the defendant’s guilt or from which his guilt may be logically deduced, the case should be submitted to the jury. State v. Fennell, 340 S.C. 266, 270, 531 S.E.2d 512, 514 (2000). In reviewing the denial of a motion for directed verdict, this court must view the evidence by the same standard in the light most favorable to the State. State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998).
Viewing the evidence in the light most favorable to the State, we find sufficient evidence to support the submission of each of the indicted charges to the jury.
It is unlawful to: (1) cause physical harm or injury to a person’s own household member, (2) offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
A spouse fits within the definition of a household member regardless of whether the parties are currently cohabitating. S.C.Code Ann. § 16-25-10 (Supp.2000).
Through the testimony of Giles, the State introduced evidence that LaCoste repeatedly struck a woman who identified herself as his wife and who, immediately after the incident, reported being afraid of him. Despite the lack of testimony regarding injuries to Mrs. LaCoste, this evidence is sufficient to support submission of the case to the jury on the theory that LaCoste caused physical harm to a household member or attempted to cause the same with the “apparent present ability under circumstances reasonably creating fear of imminent peril.”
LaCoste was also charged with violating S.C.Code Ann. § 16-9-320(A) (Supp.2000), which prohibits, inter alia, the knowing and willful resist of an arrest being made by one the person knows or reasonably should know is a law enforcement officer.
Officer McCloud arrived on the scene wearing his uniform and driving his marked Rock Hill Police Department patrol car. When he tried to place LaCoste under arrest, LaCoste resisted verbally and physically. He continued to resist after Officer Cornwell arrived despite the officers’ use of pepper spray, holding his arms stiff to prevent the officers from handcuffing him. He was not handcuffed until additional officers arrived to assist in holding his hands behind his back. The trial court properly denied LaCoste’s directed verdict motion on this charge.
Finally, LaCoste faced a charge of disorderly conduct in violation of S.C.Code Ann. § 16-17-530 (1985), which prohibits, inter alia, disorderly or boisterous conduct or the use
Officer McCloud testified that, as he approached LaCoste and instructed him to stop, LaCoste threw up his arms in a hostile manner and began yelling obscenities at the officer, insisting he would not comply with the officers demands. After the officer informed LaCoste he was under arrest for disorderly conduct, LaCoste continued to repeatedly shout obscenities and challenge the officer. Additionally, he taunted officers McCloud and Cornwell regarding their lack of success in bringing him under control. This testimony constituted ample evidence of disorderly conduct to enable the trial court to deny LaCoste’s motion for directed verdict.
III. Jury Charge on Right to Resist Unlawful Arrest
Next, LaCoste maintains the trial court should have issued the entire charge he requested on the right to resist an unlawful arrest. We find no error.
The law to be charged to the jury is determined by the evidence presented at trial. State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 512 (2000). “The substance of the law must be charged to the jury, not particular verbiage.” State v. Hughey, 339 S.C. 439, 450, 529 S.E.2d 721, 727 (2000). As long as the charge is substantially correct and covers the law, reversal is not required. State v. Hoffman, 312 S.C. 386, 395, 440 S.E.2d 869, 874 (1994).
LaCoste submitted the following proposed charge on the right to resist an illegal arrest:
Separate and distinct from the law of self-defense is the right of any citizen to resist an unlawful arrest. Under the law of the state a person has the right to resist an unlawful arrest by force, if such be necessary. In so doing, he may use such force as is apparently necessary to regain his liberty if such be necessary.
In order to justify the use of force in resisting an unlawful arrest, it is not necessary for the defendant to show that he had no opportunity to retreat or escape. He may stand his ground and use such force as may be apparently necessary to repel an unlawful arrest or detention or interference with*165 his person, provided such force is reasonable in degree and kind.
The trial court instructed the jury that the State had the burden to prove beyond a reasonable doubt that the arrest was lawful. He charged them that “[n]o citizen is required to submit to an illegal arrest and may use reasonable force in resisting an illegal arrest.” LaCoste objected, but the court ruled the instruction given was legally sufficient. The charge issued by the trial court essentially restated the instruction LaCoste requested, albeit more succinctly. The single concept requested by LaCoste which the court’s charge did not cover was that a person resisting an illegal arrest need not show lack of opportunity for retreat or escape, but is entitled to stand his ground. However, we are of the opinion that the court did not err in failing to include this in the charge, as it was-not required by the evidence presented at trial.
IV. Simple Assault as Lesser Included Offense
Finally, LaCoste argues simple assault is not a lesser included offense of criminal domestic violence and the trial court erred in submitting it as such to the jury. We disagree.
“The test for determining if a crime is a lesser included offense is whether the greater of the two offenses includes all the elements of the lesser offense.” State v. McFadden, 342 S.C. 629, 632, 539 S.E.2d 387, 389 (2000). If the lesser offense includes an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 81, 492 S.E.2d 76, 78 (1997).
Criminal domestic violence is defined by S.C.Code Ann. § 16-25-20 (Supp.2000), which provides:
It is unlawful to: (1) cause physical harm or injury to a person’s own household member, (2) offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
Assault is an attempted battery or “an unlawful attempt or offer to commit a violent injury upon another person, coupled with the present ability to complete the attempt or offer by a
Assault and subsection (2) of the CDV statute appear very similar. LaCoste contends, however, that simple assault is not a lesser included offense of CDV because assault includes the elements of violent injury and person of another. These differences are in fact more semantical than they are practical.
First, in regard to violent injury, “[t]he adjective ‘violent’ may be somewhat misleading.” William Shepard McAninch & W. Gaston Fairey, The Criminal Law of South Carolina 188 (3d ed.1996). For example, assault and battery has also been defined as “any touching of the person of an individual in a rude or angry manner, without justification.” State v. Mims, 286 S.C. 553, 554, 335 S.E.2d 237, 237 (1985); see also State v. Germany, 211 S.C. 297, 300, 44 S.E.2d 840, 841 (1947) (“Violence [as included in the definition of assault and battery] does not necessarily import serious injury.”); cf. State v. DeBerry, 250 S.C. 314, 319, 157 S.E.2d 637, 640 (1967) (serious bodily injury is not necessary to establish assault and battery of a high and aggravated nature). Further, the essential purpose of § 16-25-20 of the Criminal Domestic Violence Act is “to protect against harm and violence from members of an individual’s household.” Arthurs v. Aiken County, 338 S.C. 253, 266, 525 S.E.2d 542, 549 (Ct.App.1999) (emphasis added). Finally, assault and battery of a high and aggravated nature (ABHAN) and assault of a high and aggravated nature (AHAN) have been determined to be lesser included offenses of criminal sexual conduct (CSC) in the first degree, in spite of the fact that ABHAN and AHAN specifically include the term “violent” within their definitions, while first degree CSC does not. See State v. Frazier, 302 S.C. 500, 502, 397 S.E.2d 93, 94 (1990) (ABHAN is an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation; ABHAN is a lesser included offense of CSC in the first degree); State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct.App.1996) (because AHAN contains the same elements of ABHAN with the exception of the element of touching the victim, and ABHAN is a lesser included offense of first degree CSC, AHAN is also a lesser included offense of CSC in the first degree); S.C.Code Ann. § 16-3-652(1) (Supp.2000) (first degree CSC requires a sexual
As for the element of the person of another, to attempt to cause harm to a household member is in fact an attempt to cause harm to the person of another. The term “household member” is simply another requirement under § 16-25-20. The statute merely includes the additional element that the person of another be a household member. Therefore, the person of another is in fact an element of criminal domestic violence. In that simple assault contains no element which is not included within the offense of CDV, the former is a lesser included offense of the latter.
CONCLUSION
Because the trial court erred in refusing to admit the excited utterances of the unknown male bystander, we reverse on this issue. Accordingly, LaCoste’s convictions are reversed and remanded for a new trial consistent with this opinion. See State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994) (wherein supreme court reversed all of the appellant’s remaining convictions, including resisting arrest, where the trial court improperly admitted evidence pitting witnesses).
REVERSED AND REMANDED.
. The trial court, however, did not err in excluding any alleged statements made by the woman. The record is unclear as to whether she was an eyewitness to the event. During his in camera testimony, Cornwell answered affirmatively to a question of whether the man and woman claimed to be witnesses. During another portion of his testimony, however, Cornwell remembered the woman’s presence and believed she was there for the same reason as the unknown man, but he did not speak with her and she did not say much. Unlike the unknown man, he attributed no particular statement to the unknown woman. Whiting’s testimony also fails to identify the woman as an eyewitness. Because it is unclear on the record before us whether the woman saw the incident in question, we find any statements attributed to her were properly excluded.