*1 motion for directed verdict issue of attorney’s on the fees.7 Pike, at 518 (requiring court to affirm the of a appellate denial directed verdict motion when is any there evidence to support ruling below). However, attorney’s because issue of fees is claim, inextricably linked Van conflict of Epps’ interest issue fees is attorney’s also remanded to be determined de novo at the new trial.
CONCLUSION reasons, For the foregoing the decision of trial judge PART, PART, AFFIRMED IN IN and RE- REVERSED MANDED.
HEARN, C.J., HOWARD, KITTREDGE, JJ., concur.
No. 3751. Appeals Court Carolina. South Submitted June 2003.
Decided 2004. March Rehearing April Denied again Epps' 7. We our affirm of Van note that decision to the denial attorney's exclusively motion for verdict directed as to fees is based on remand, Epps may again the record before On Van move us. for a issue, judge directed verdict on this trial rule on shall her presented motion based evidence at the new trial. *2 Columbia, Assistant Defender Tara Appellate Taggart, S. for Appellant. McMaster,
Attorney Henry General Dargan Deputy Chief McIntosh, Attorney General W. John Assistant Deputy Attor- ney General Charles H. Richardson and Assistant Attorney Columbia; Spencer, General David all of and Solicitor Warren Giese, Columbia, Blair for Respondent.
HOWARD, J.:
John was convicted of two counts of kidnapping, two counts of first-degree burglary, and one count of grand larceny of a motor vehicle. Subsequently, he was sentenced to thirty years imprisonment each the kidnapping charges, years forty for each of imprisonment the burglary charges, years and five imprisonment for the grand larceny of motor vehicle all charge, concurrently. to run appeals, arguing charging grand larceny of motor *3 vehicle was insufficient to subject jurisdiction confer matter because the of the indictment failed allege to the motor vehicle’s value was in excess one thousand dollars. We affirm. BACKGROUND
FACTUAL/PROCEDURAL A grand jury indicted for two counts of kid napping, two counts of first-degree burglary, and one count of a grand larceny of motor vehicle. indictment for grand larceny of a motor captioned vehicle was “GRAND LARCE NY OF MOTOR VEHICLE UNDER S.C.Code: 16-13- $5000 30(B)(1),” alleged: and John Barnett or County
[t]hat did Richland on about 10, 2000, carry March and feloniously away person- take al property of Rosa Daniels to wit: Pontiac 6000 with 542KJD, tag valued under Against peace $5000.00. State, and of the dignity contrary to the statute such provided.1 case made and added).
(emphasis Subsequently, Barnett was convicted on all the charges thirty sentenced to years imprisonment for each of the kidnap- originally alleged The indictment Clanda James owned the motor However, vehicle. the indictment was amended to name Rosa Daniels the burgla- for each of forty years imprisonment ping charges, for the years imprisonment and five ry charges, concurrently. Barnett all to run charge, a motor vehicle appeals.
LAW/ANALYSIS grand larceny the indictment argues subject juris to confer matter vehicle insufficient motor allege the indictment did because the diction one thousand was valued at more than dollars. stolen vehicle disagree. We indictment, this of an sufficiency
In evaluating eye with a in view practical “look at the issue should Court Gunn, State v. surrounding circumstances.” (1993); Thompson, see also State n. 1 (Ct.App.1991) n. 409 S.E.2d give this should evaluating an Court (holding when whole”). If as reading common sense [to] “a certainty particularity with sufficient the offense is stated judgment pronounce, what to enable the trial court know answer, he know what is called and the defendant to subject jurisdic to confer matter sufficient State, tion. Carter v. sufficiency true an indictment “The test certain, but it more definite and
not whether could be made necessary elements of offense whether it contains sufficiently apprises defendant charged intended to be The amendment of the name of the owner of the motor vehicle. jurisdictional flaw. not a See State victim under these circumstances is 1994) Johnson, (Ct.App. *4 (holding changing proper the name of the owner of the an amendment change of did not the nature ty listed in an indictment breach trust 234, offense); Sweat, 270, 273-74, 70 v. 221 S.C. S.E.2d of the State (1952) (holding an a indictment did 235-36 amendment to offense, changed change the the the nature of the where indictment 103, 111-12, victim); Guthrie, 572 also State v. name the see an (Ct.App.2002) (holding an element is 313-14 essential S.E.2d to would ingredient the crime when an amendment that element change required of the materially proof the to convict the defendant (stat crime); (1995) § and 168 41 Am.Jur.2d Indictments Informations permitted "the ing and thus not unless an amendment is substantive available, and to both after defense is the defendant before same evidence”). the same amendment 203 State, what he must be to meet.” v. prepared Browning (1995) (citations S.C. S.E.2d 320 465 359 omit- ted). “An indictment if it passes legal ‘charges muster crime in . .. substantially language prohibit- of the statute the crime or so the nature of the offense ing plainly Reddick, charged may be v. easily understood....’” 348 State 631, 635, (Ct.App.2002) S.C. (quoting S.E.2d (1985)). Ann. 17-19-20 S.C.Code 16-13-30(B)
South Carolina Code Annotated section (2003) chattels, defines grand larceny “[larceny] goods, instruments, personalty or other valued excess of one Parker, 567, 570, thousand dollars----” State v. See (2002) (“[G]rand is the felonious another, taking and of the carrying away goods of where the $1,000.”). Larceny value exceeds taking carrying away of the goods of another without consent. State Brown, S.E.2d
It is clear the indictment sufficiently alleges larceny, misdemeanor, alleged feloniously as it took a motor vehicle from Rosa Daniels against peace dignity of the Brown, at State. 720 (holding larceny is the taking carrying away goods of consent). However, without another remaining inquiry whether the sufficiently motor vehicle alleges dollars, was worth more one elevating than thousand 16-13-30(B). charge § Ann. larceny. See S.C.Code Wilkes, This case is analogous State (2003). Wilkes, In was defendant convicted of count one arrest and resisting two counts assault on employee. correctional facility One of the indictments was ON captioned, “ASSAULT CORRECTIONAL FACILITY 16-3-630,” § and the EMPLOYEE other indictment was cap- tioned EM- “ASSAULT ON CORRECTIONAL FACILITY PLOYEE.” Both indictments alleged the defendant “did 1999[,] on or assault ... County April Chester about [an officer] while him after his attempting process she[/he] indictments, bodies, arrest.” Neither of the their al- within employees. officers were correctional leged facility appeal, On this Court vacated the two indictments for on facility assault a correctional the indict- employee, holding *5 failed to they because defective jurisdictionally were ments employee. This facility was a correctional the officer allege could of the indictments captions held the further Court Id. at indictments. the otherwise defective cure at 718. reversed, certiorari, holding court supreme our grant On juris- matter subject to confer were sufficient the indictments because, captions the reading to the circuit court diction indictment, the indictments with the conjunction certainty particularity with sufficient the offense “stated pronounce what judgment know the trial court to to enable what he was called being know ... defendant] [the at 719. Id. at to answer.” case, the indictment although present In the was in vehicle’s value the motor state specifically fails to dollars, the indictment caption of thousand excess of one cites LARCENY” and is charge “GRAND states 13—30(B)(1).” cou- language, this We conclude “S.C.Code: 16— body of the language with the pled certainty with larceny grand the offense of sufficient to state judg- knew what the circuit court such that particularity against. what to defend Barnett knew ment to pronounce Thus, defective. jurisdictionally is not the indictment
CONCLUSION reasons, of the circuit court the decision foregoing For AFFIRMED. J.,
GOOLSBY, concurs. BEATTY, J., opinion. in a dissenting separate BEATTY, J.: court the circuit Barnett maintains
I dissent. respectfully charge larceny jurisdiction grand matter subject lacked charge. Specifi- indicted on properly he was not because could be the indictment language he contends cally, petit charge mean he faced misdemeanor construed to Put felony. which is larceny, than grand rather an failed to include differently, alleges essential element of value —that $1,000. stolen was in excess of I property agree. *6 2000, July
In a grand jury indicted Barnett for two counts of two counts of kidnapping, first-degree burglary, grand larceny. caption The of Barnett’s indictment for larce- read ny “GRAND LARCENY OF MOTOR VEHICLE UN- 16-1S-30(B)(1). DER and referenced $5000” S.C.Code Section The of the indictment alleged:
That John Barnett did Richland on or County May about 10, 2000, feloniously carry take and away personal the Daniels, of Rosa to property wit: 1988 Pontiac 6000 with 542KJD, tag S.C. valued under $5000.00.
Grand involves stolen property valued excess of $1,000, petit larceny whereas to stolen applies property valued $1,000 16-13-30, at or less. § See S.C.Code Ann. et seq. Parker, 567, 570, v. (Supp.2002); State 351 S.C. 571 S.E.2d 288, (2002). 289 “The of monetary goods value taken is an Parker, element of the offense of grand larceny.” 351 at 571, 290; State, 571 62, at S.E.2d see also Johnson v. 319 S.C. 64, (1995) 459 S.E.2d 841 (grand larceny involved taking away more; at or carrying goods valued value is $200 offense); Ates, of grand element State v. 297 S.C. (1989) (“In 377 n. S.E.2d a grand larceny element; prosecution, value is critical it State’s burden $200.”) prove value of stolen goods (emphasis exceeds added).2 jurisdiction
The circuit court lacks convict defendant of an offense unless the defendant presentment, waives the of fense is a lesser-included offense the crime charged sufficiently or there is an indictment that states Owens, 637, 648, v. the offense. State (2001). “An indictment if it apprises sufficient defendant elements of the offense to be intended chai'ged apprises defendant of what he must be State, 2, 4, Granger prepared meet.” v. 507 S.E.2d (1998) added). The (emphasis indictment sufficiency Previously, goods grand larceny $200 the value of for was or more. (1985). § See S.C.Code Ann. The 16-13-30 statute has been amended $1,000. goods grand larceny to set value of at more than 16-13-30(B)(1) (Supp.2002). § S.C.Code Ann all the sur- “practical eye”; viewed with criteria must be be an accurate weighed must before rounding circumstances or was not whether a defendant was preju- determination of Gunn, be diced can reached. State face of looking both This includes surrounding the trial. and the circumstances the indictment Reddick, State its face” and the indictment “on (examining (Ct.App.2002) to determine whether “events at trial” considering the charges against apprised were on notice appellants them). with violation charged caption
The 13—30(B)(1). § read caption Ann. S.C.Code 16— with “GRAND LARCENY OF MOTOR charged However, indict- VEHICLE $5000.” UNDER make reference to the code section specific ment failed to *7 not list the elements larceny, did applicable “[Ojne infer the elements of an offense cannot the offense. McCloud, 354 indictment.” State v. caption from (Shuler, J., 47, 534, 40, (Ct.App.2003) S.E.2d 537 S.C. 579 175, Lark, 350, 353, 42 64 S.E. dissenting) (citing State v. S.C. 141, 136, (1902)); Tabory, v. see also State 176-77 (1974) (“[T]he may support State not a convic- charged by relying upon to be tion for an offense intended body contained in the language to the exclusion of caption indictment.”). of the eye” supreme phrase “practical court used the
Our
sufficient. See
legally
an indictment
determine whether
Gunn,
78.
called to
at
437 S.E.2d at
Courts are
determine wheth-
totality
examine the
of the circumstances to
crime for which he was
er a defendant was aware
be
surrounding
“All the
circumstances must
charged.
Id.
determination whether a defen-
before an accurate
weighed
Viewing
or
can be reached.”3
prejudiced
dant was was
I
with a
believe
indictment
practical eye,
of the elements of
apprise
was insufficient
in the
Nothing
he
have
to meet.
prepared
crime
should
been
Hiott,
Reddick,
(citing
State
560 S.E.2d at
v.
348 S.C.
Shoemaker,
(1981);
State v.
276 S.C.
276 S.E.2d
(1981);
Evans,
v.
In
State
our supreme court reversed this Court’s
decision to vacate two indictments for assault on a correctional
facility
employee.
(2003).
353 S.C.
However, in the instant case there is no such clarity.
In
actuality,
of the indictment merely charges petit
*8
larceny. The
caption
the indictment lists the code section
where grand larceny of more than
and less than
$1000
$5000
set forth. This caption may assist the judge in determining
sentence;
proper
however,
it does not
provide
missing-
element required in the body of the indictment for grand
larceny.
Tabory,
charged: or, caption. An indictment stated grand criminal question should not leave this defen- indictment requires clearly the law indictments decipher; dants question. answer this Barnett’s
Weighing surrounding circumstances indict- conviction, I subsequent believe was not ment elements the crime of sufficiently apprised grand I have been construed larceny. believe the could $1,000, malting stolen valued at less than property to involve Therefore, the crime a misdemeanor. petit larceny, from the by missing property value indict- prejudiced reasons, I the conviction for ment. For the believe foregoing be vacated. should