*1 tion at trial required by Thus, as the statute. this issue provides no reversing basis for of litigation award ex- penses to Thompson.9
AFFIRMED. BEATTY, JJ.,
HUFF and concur.
Jeremy BRYSON, Appellant.
No. 3713. Appeals Court of of South Carolina. 6,
Heard Nov. 2003. 15, Decided Dec. 2003. Rehearing 30, Denied Jan. 2004. Withers,
Sessions v. 327 S.C. 488 S.E.2d 888 (Ct.App.1997); Gil Ivey, more 1986). 290 S.C. (Ct.App. Richardson, 9. Dep't South Transp. Carolina Cf. (Ct.App.1999) S.E.2d 3 (rejecting party’s assertion that his own attorney's statements to the court and to the constituted the value purposes 28-2-510(B)). attested to at trial for of section *3 Appellate Assistant Taggart, Defender Tara S. of the South Defense, Carolina of Appellate Columbia, Office for appel- lant.
Attorney Henry Dargan General McMaster, Deputy Chief Attorney McIntosh, General John W. Deputy Assistant Attor- ney Richardson; H. General Charles Attorney Assistant Gen- Brown; eral Melody Giese, J. and Solicitor Blair Warren all of Columbia, respondent.
HOWARD, J.: Jeremy Bryson was multiple indicted and tried for charges, including assaulting a law enforcement officer violation of South Carolina Code Annotated section 16-9-320(B) and pointing firearm violation of South (2003). Carolina Code Annotated section 16-23-410 ap- On peal, Bryson argues the circuit court lаcked jurisdiction for these two offenses because the court allowed trial, prior to immediately of both indictments as officer named identity the law enforcement changing Bryson the two agree with and vacate in each. victim We convictions. BACKGROUND
FACTUAL/PROCEDURAL a man and Bryson robbed co-defendant Jeremy forced Bryson and the co-defendant then gunpoint. woman at sexually victim was victim a vehicle where the female into at pointed gun co-defendant by Bryson while the assaulted her. released, law enforce- victim was
Shortly after the female Bryson in which of the vehicle initiated chase ment officers wrecked the co-defendant riding. The chase ended when gun. carrying a After Bryson vehicle. exited vehiсle Brantly, Bry- Deputies with Richardson and struggle a brief son was arrested. officer while
The arrest warrant officers, and the arrest deputies as assaulted arrest listed both both as victims. Howev- pointing a firearm listed warrant for Deputy charges only list er, for these two the indictments and read as follows: Richardson ON OFFICER ARREST—ASSAULT
RESISTING County on or about in Richland Jeremy That did willfully assault, beat or 25, 2000, knowingly and April *4 Richardson, RCSD, a law enforcement wound one M.S. of the said State, resisting the efforts while officer of this defendant, of said a lawful arrest officer to make Carolina, 9—320(b), of of Laws South §of Code violation 16— (1976), as amended. A FIREARM
POINTING County on or about Bryson did Richland Jeremy That firearm, to 25, 2000, a wit: Beta point present April Deputy Arms .380 at Caliber Pistol SN# B08830 one Micah Riсhardson. added).
(emphasis selection, jury Before the state moved to amend each indict- by ment substituting Deputy Brantly for Deputy Richardson against. as the officer whom the offense was committed.1 Bryson objected amendments, to asserting changes deprive would him of of notice what he was required amendments, defend. The circuit court ruling allowed the change of the -victim’s not change name did nature charged. offenses
Bryson was also simultaneously indicted and tried for the charges other from his stemming day conduct on the of his arrest, including kidnapping, criminal sexual conduct in the degree, possession first of a pistol by person a age under the twenty-one, of a carrying pistol, two counts of armed robbery.2
Bryson was of all charges except charge convicted assaulting an officer while an charge, arrest. On this Bryson found guilty of the lesser-included offense of resisting arrest.3
Bryson was to thirty-year sentenced concurrent terms for kidnapping, criminal sexual conduct in the first degree, for each of the two counts of armed robbery. He was year in prison carrying sentenced one a pistol and arrest, run concurrently with thirty-year sen- tences. He was five-years sentenced to imprisonment each possession firearm, firearm and pointing both to run consecutively thirty-year to the concurrent sentences. record, According 1. Deputy longer to the employed Richardson was no by department the sheriffs at the time of trial was unavailable as witness. trial, prossed 2. Prior possession the state nolle one count of aof possession pistol person stolen vehicle and a by second count of age twenty-one. under the Ritter, 3. See State v. (holding resisting arrest is a lesser-included offense of arrest). officer
HI resisting pointing his convictions for appеals firearm.
LAW/ANALYSIS Assaulting Subject I. Matter Jurisdiction Resisting while Arrest an Officer have matter subject the circuit court did not Bryson argues resisting while try assaulting him for officer jurisdiction to for the lesser- agree and vacate his conviction arrest.4 We included offense of arrest. jurisdiction a court is fundamen subject matter of State, 343 any and can raised at time. Brown
tal be (2001). 342, 346, S.E.2d to jurisdiction acquires subject matter A trial court indictment by way legally a criminal sufficient hear case 459, 462, Johnston, or a thereof. State v. valid waiver Const, I, (1999); (Supp. 11§ art. see S.C. S.E.2d 2002) any person may be held to answer (stating “[n]o magistrate’s which is not within the jurisdiction over crime the court, grand jury of presentment on a or indictment unless committed”). county has of where the crime bеen the indictment does legally to a sufficient An amendment long so subject jurisdiction trial not divest the court of the offense change not the nature as the amendment does (2003) (“If ... § Ann. 17-19-100 charged. See S.C.Code ... court any in form in indictments any be defect there indictment may trial shall be had amend the before which the nature ... does not if such amendment however, [; amendmеnt shall ... such charged if] offense defendant, shall ... the defendant as a operate surprise cause.”). demand, entitled, to a continuance of the upon be changes that to an indictment Conversely, an amendment a different charges or. the nature of the offense indicted for an officer 4. Because arrest, by examining begin inquiry we our court had whether the circuit indictment of that offense determine jurisdiction try Bryson. We will then consider offense circuit court’s over lesser-included Bryson was convicted. arrest for which *6 jurisdiction. offense divests the trial court of (1995) 41 § Am. Jur.2d Indictments and 174 Informations (“An impermissibly indictment is if amended the altered in- charges changes dictment a different offense the nature offense.”); 640-41, v. Lynch, 635, the State 344 S.C. 545 (2001) 511, S.E.2d 514 (holding the nature of the offense changed when an indictment for first-degree burglary was amended to the aggravating circumstance from enter- ing during causing physical injury darkness to “the because proof required aggravating for each circumstance mate- [was] rially different”); State, 7, 9, v. Hopkins 317 S.C. (1994) 389, (holding 390 the nature of changed the offense the becausе amendment to the indictment increased maxi- the crime); Riddle, penalty 211, 212, mum for the State 301 S.C. 253, (1990) 391 (holding S.E.2d 253 the nature of the offense changed when an indictment was amended from assault third-degree with intent to commit criminal sexual conduct to assault with intent first-degree commit criminal sexual conduct punishment because the for the amended offense was punishment differеnt from original offense); for the State Sowell, 278, 283-84, 316, (1910) 67 S.E. 317-19 when an (holding amendment to an indictment substituted and different distinct offense from the charged, one trial of subject court is divested jurisdiction because the grand jury had not indicted the defendant on the substituted offense); Gunn, 124, 132-36, see also State v. 313 S.C. 437 75, S.E.2d (holding 80-82 scope by offense). conferred an indictment is limited to the carefully cоnsidering After case, the indictment this we replaced conclude properly indicted count of assaulting an officer while arrest with a second unindicted count of analysis the same crime. Our predicat- is ed wording on the of South Carolina Code Annotated section 16-9-320(B). That section “It states: is unlawful for a person to knowingly assault, beat, willfully ... or wound an pеrson officer when the is an arrest being by made one whom the person reasonably knows or should know is a officer, law enforcement process whether under or not.” 16-9-320(B). § S.C.Code Ann.
Criminal strictly against statutes are “construed and in favor Blackmon, state defendant.” State v. 304
118 (1991). However, 270, 273, “[i]f S.E.2d S.C. unambiguous, conveys plain is language statute’s rules of meaning, employ is no nеed to clear and definite there are statutory interpretation.... When the terms statute clear, according to their apply must those terms the court 366-67, meaning.” Morgan, State v. literal omitted). (internal citations (Ct.App.2002) S.E.2d that one of the elements The statute states plainly officer” is that “an assaulting an officer while “an” an article that modifies be assaulted. Because is noun, of the statute indicates the plain language singular Third an assault on one officer. See Webster’s crime involves *7 (1986). Thus, if two officers are Dictionary New Int’l 75 arrest, assaulted, two or in the course of the wounded beaten 16-9-320(B) are committed.5 separate violations section 851, 313-14, S.E.2d 352 573 Maybank, See State (“After Maybank he was the offiсers told (Ct.App.2002) 853 arrest, Maybank fights ... in several brief engaged under ... indicted for ... two later [two officers] [was] with arrest.”); resisting officer assaulting police counts of while Hollman, 489, 503, 102 S.E.2d also 232 S.C. see State (1958) separate act constitutes two (holding single offense are distinct elements one offenses when “there other”), grounds rev’d on other which are not included the State, by, Stevenson v. S.E.2d for by deciding that convictions (overruling holding Hoilman’s aggravated nature and battery high both assault violation). jeopardy do not a double resisting arrest constitute case, Bryson passenger in vehicle present In the wrecked, After the vehicle high-speed in a chase. involved with several sheriffs fought the vehicle and Bryson exited war- Bryson. arrеst arrested subsequently who deputies Brantly as assaulted Richardson and Deputies rant listed and the language of the statute plain on the officers. Based state, have been indicted by Bryson could alleged facts as resisting arrest. assaulting an officer while for two counts of cases, stating reported there was Carolina 5. We have found no South assaulting whеn the only charge while an officer one during of an arrest. the course defendant assaulted two officers Instead, Bryson was for assaulting indicted one count of an arrest, officer while with the indictment listing Depu- ty Richardson as the assaulted officer. At grand the time the convened, jury the state did not indict for the addition- assaulting Deputy Brantly. al count of Howevеr, selection, before the state moved to amend charge indictment substitute listing the unindicted Deputy Brantly as the assaulted officer the indicted charge listing Deputy Richardson as the assaulted officer. The cir- cuit permitted court the amendment.
Because
amendment substituted a different charge from
presented
jury,
the one
grand
we
hold
divested the cirсuit
subject
jurisdiction
court of
try
Bryson for
an
officer
arrest.6 See
§Ann.
only
S.C.Code
17-19-100
it
(stating
is
when an amend-
ment
indictment does not change the nature of the
offense
that the amendment does not divest
trial
Const,
jurisdiction);
court of
see also S.C.
art.
I,
(stating
person
§ 11
may
“[n]o
be held to
any
answer
crime the
over which is not
magistrate’s
within the
court,
on presentment
unless
of а grand jury
indictment
committed”).
county
where the crime has been
suggest
6. We note two cases that
an amendment to an indictment that
changes
identity
of the victim does not divest the circuit court of
*8
Johnson,
161,
subject
jurisdiction.
166,
matter
State v.
314 S.C.
442
191,
(Ct.App.1994)
S.E.2d
194
(holding
changed
an amendment that
the
of
property
name
the owner of
listed in an indictment for breach of
offensе);
Sweat,
change
trust did not
of
nature
221
State v.
S.C.
270, 273-74,
234,
(1952) (holding
235-36
an amendment to a
larceny
change
indictment did not
the nature of the offense when the
goods
changed
name listed as the
of
owner
the stolen
was
to the name
owner).
of
distinguishable
the actual
These cases are
because each
crime,
only
particular
involved
one
of
present
count
a
while the
case
arrest,
assaulting
involves two counts of
resisting
an officer while
separate
distinguished only by knowing
counts can
identity
be
of
Guthrie,
103, 111-12,
the victim involved. See State v.
352 S.C.
572
309,
(Ct.App.2002)
S.E.2d
(holding
313-14
is
element
an essential
ingredient of the crime when an amendment
that
to
element would
materially
proof required
to convict the defendant of the
crime);
(1995)
41 Am.
§
Jur.2d Indiсtments and
168
Informations
(stating an amendment is substantive and
permitted
thus not
unless
“the same defense is available to the defendant both before and after
evidence”).
upon
the amendment and
the same
subject
juris
circuit court lacked
matter
Because
for
Bryson on
indictment
assault
try
to
the amended
diction
arrest,
resisting
the court lacked
Brantly while
ing Deрuty
of
for
lesser-included offense
jurisdiction
convict
Ritter,
53,
at
STROM, Acting Judge, concurring.
STILWELL, J., concurring part in in dissenting part. STILWELL, J. (concurring part in dissenting part). I Although agree that the conviction pointing a firearm should be vacated for the reasons majority stated argument 7. Because oral would aid resolving any not the Court in issue appeal, on we argument decide this pursuant case without oral to Rule 215, SCACR. *10 conviction compelled I to dissent as to the opinion, am resisting arrest. charged Bryson with drawn originally
The indictment as
arrest. The
police
on a
officer while
assault
him of
charge,
that
but convicted
the lesser-
acquitted him of
Ritter,
resisting arrest. See State
included offense of
(1988) (16-9-320(B)
all of the
includes
I believe that do not deprived the court name of the victim change it the nature jurisdiction because did not conviction for I affirm the charged. would therefore offense resisting arrest.