The State, Respondent, v. Sidney Stclair Moorer, Appellant.
Appellate Case No. 2019-001636
In The Court of Appeals THE STATE OF SOUTH CAROLINA
Heard April 13, 2022 – Filed June 7, 2023
Opinion No. 5988
Appeal From Horry County
AFFIRMED
Appellate Defender Taylor Davis Gilliam, of Columbia, for Appellant.
HILL, A.J.: Sidney S. Moorer (Sidney) appeals his convictions for kidnapping and conspiracy to kidnap. Sidney argues the trial court erred in (1) transferring venue of his case back to Horry County; (2) denying his motion for directed verdict on both the kidnapping and conspiracy to kidnap charges; and (3) qualifying Grant Fredericks as an expert in forensic video analysis and allowing him to testify the Moorers’ truck was the vehicle videotaped going toward and away from the place from which the victim disappeared. We affirm.
I. BACKGROUND FACTS
From July 2013 until late October or early November 2013, Sidney, a thirty-eight-year-old man, had an affair with Heather Elvis (Victim), a nineteen-year-old woman. Sidney and Victim met at the Tilted Kilt, a restaurant at Broadway at the Beach in Myrtle Beach, where Victim worked as a hostess and Sidney did maintenance work. Victim and Sidney communicated with each other on their cell phones around 400 to 500 times a month until their relationship ended when Tammy Moorer (Tammy), Sidney‘s wife, found out about the affair. During the affair, Tammy‘s and Sidney‘s cell phone records showed they also regularly communicated, but from November 2, 2013, to December 18, 2013, communication between Tammy‘s and Sidney‘s cell phones stopped.
On the evening of December 17, 2013, Victim went on a first date with a man her age. During the date, Victim acted happy, and her date dropped Victim off at her apartment after 1:00 a.m. on December 18, 2013. Meanwhile, Sidney and Tammy were, by their own admission, together. Location data from their cell phones indicated they were in the area of Victim‘s apartment and the area of Longbeard‘s Bar, from 11:00 p.m. until 1:30 a.m. At 1:19 a.m., Sidney purchased a pregnancy test kit from Walmart. From Walmart, Sidney and Tammy traveled to a Kangaroo Express gas station and parked across
After receiving the payphone call, Victim called her roommate Brianna Warrelmann, who was out of town. Victim was upset and crying. Warrelmann calmed Victim down, told Victim not to meet with Sidney, and told Victim to go to sleep and they would talk in the morning. However, it appears Victim called the pay phone number two times from the area of her apartment, changed into her favorite outfit, and—according to the location data from her cell phone—left her apartment at 2:32 a.m. Victim called the payphone a third time while driving, and at 2:43 a.m., when she arrived in the same area that Sidney and Tammy had been just four hours earlier, she called the payphone another six times. None of the calls were answered.
Victim returned home, where, at 3:16 and 3:17 a.m., she called Sidney‘s cell phone twice. The first call to Sidney‘s cell phone went to voicemail, but the second call lasted a little over four minutes. Location data from Sidney‘s phone shows he was at or near his home when he spoke to Victim. Location data from Victim‘s phone showed after this call, Victim left her apartment and went to Peachtree Landing (the Landing), which is located about a five-minute drive from the Moorers’ home. While at the Landing, Victim called Sidney‘s cell phone four more times—at 3:38 a.m., 3:39 a.m., 3:40 a.m., and 3:41 a.m. All four calls went to voicemail. The 3:41 a.m. phone call was the last one made from Victim‘s phone, and to this date, there has been no further activity on Victim‘s phone. At 4:37 a.m., Tammy texted Sidney for the first time since November 2, 2013.
Victim‘s car was discovered at the Landing at 4:00 a.m. on December 18, 2013, by an officer on routine patrol, who noted no signs of a struggle at the Landing and nothing appeared to be wrong with the car. On the evening of December 19, 2013, when her car was still abandoned at the Landing, the police
Based on Victim‘s phone records, a search of her apartment, and discussion with her coworkers and roommate, it became apparent Victim may have been pregnant with Sidney‘s child,1 and Sidney became the prime suspect in Victim‘s disappearance. On December 20, 2013, the police visited the Moorers’ home. Tammy gave the police consent to enter the home and property, where they discovered the Moorers had a home surveillance system; a black 2013 Ford F-150 Ford Platinum truck that Tammy told them could not be unlocked at the time; and a bag of cement, a spent shotgun shell, and a bottle of cleaning fluid piled by the Moorers’ parked camper. The day after this police visit, Sidney purchased a new home surveillance system. Video from this new surveillance system showed Sidney, Tammy, Tammy‘s sister, and Tammy‘s sister‘s boyfriend cleaning, pressure washing, and vacuuming the Moorers’ Ford F-150 on December 22, 2013, and then burning the rags used to clean the car. Later in February 2014, officers searched the Moorers’ home and their Ford F-150, finding no evidence of Victim‘s disappearance.
Investigators began looking into Sidney‘s life more closely and discovered Tammy may have also been involved in Victim‘s disappearance. Phone records and location data from the Moorers’ two cell phones2 and their computer revealed a grim picture of a wife who was irate with her husband for having an affair with a younger woman; who threatened Victim upon
In the course of their investigation, officers discovered two surveillance systems had captured an image of a pickup truck driving between the Moorers’ home and the Landing in the early morning hours of December 18, 2013. One was a home surveillance system located five minutes from the Landing, which showed a dark color pickup truck heading towards the Landing at approximately 3:45 a.m. and then passing back about ten minutes later. The second was a business’ surveillance system located two or three minutes from the Landing, which showed a dark pickup truck going towards the Landing at 3:39 a.m. and returning from the Landing at 3:46 a.m. The police asked a forensic video analysist, Grant Fredericks, to assist them in identifying the truck from these videos. After conducting many tests, including a “headlight spread pattern analysis,” Fredericks formed the opinion the truck in the video footage was the Moorers’ Ford F-150.
A Horry County Grand Jury indicted Sidney and Tammy for kidnapping and conspiracy to kidnap Victim. Sidney and Tammy were tried separately. Sidney‘s first trial, held in 2016, ended in a mistrial. This appeal is from his 2019 retrial.
At Sidney‘s retrial, the State presented evidence from police investigators; a cellphone location data analyst; Victim‘s coworkers, who testified Victim was a dependable worker; Victim‘s roommate; the man with whom Victim went on her December 17, 2013 date; witness testimony indicating the
The State sought to paint the picture that in the weeks before Victim‘s disappearance, Tammy was infuriated with Sidney for having an affair with Victim; Sidney‘s phone was under Tammy‘s control; Tammy sought revenge on Sidney for the affair by sending sexual messages to other men on Sidney‘s phone; and upon hearing rumors that Victim was pregnant with Sidney‘s child, Sidney and Tammy sought to dispose of Victim and her unborn child to prevent Victim from forever having a hold on Sidney and ruining their family. The State‘s theory was that, on the night of Victim‘s disappearance, Tammy had control over Sidney‘s cell phone and actions, and together they sought to lure Victim to an unsafe and remote location by asking Victim to take the pregnancy test they had purchased at Walmart. The State contended the Moorers tried to destroy incriminating evidence by purchasing a new surveillance system and removing the one they had the night of the disappearance, deleting Sidney‘s Google GPS data and account, and removing the SD card from their Ford F-150‘s navigational system. The State also claimed the Moorers tried to avoid detection by using a payphone to call Victim and tried to avoid video evidence by not parking in the gas station parking lot by the payphone. The State noted Tammy returned Sidney‘s cell phone to his control for the first time in six weeks shortly after Victim disappeared.
As a final piece of incriminating evidence, the State offered testimony from Tammy‘s cousin Donald Demarino, who stated that after Victim‘s disappearance, Sidney showed him a picture of Victim on a mobile phone. Demarino explained the picture showed Victim was not “under her own free will,” and based on the picture, he did not expect anyone to hear from Victim ever again. Demarino stated he did not tell anyone
After the State rested, Sidney moved for a directed verdict, arguing the State had not presented substantial circumstantial evidence to support the charges of kidnapping or conspiracy to kidnap. The trial court denied the motion.
During the defense‘s case, Sidney called Bruce Koenig as an expert witness in forensic analysis. Koenig testified there was no way to scientifically prove the vehicle in the surveillance videos was the Moorers’ truck because the picture contained “nothing unique” and he saw more “differences than similarities” between the vehicle in the video and the Moorers’ truck. However, Koenig agreed, based on Fredericks’ work, the vehicle in the surveillance videos was likely a Ford F-150.
Tammy‘s sister, who lived next door to the Moorers, also testified for the defense, stating Tammy texted her when Tammy and Sidney came home at 3:10 a.m. on December 18, 2013; she then sent the Moorers’ children home; and she saw the Moorers outside their door waiting for their children. Tammy‘s sister also testified she and her boyfriend gave Sidney his Christmas present, a car washing kit, on December 22, 2013, because the weather was nice and they wanted to wash their own car. She testified Sidney and Tammy also washed their car that day, and she noted the Moorers always burned trash. After the defense rested, Sidney renewed his motion for a directed verdict, which the trial court denied.
The jury found Sidney guilty of both kidnapping and conspiracy to kidnap. The trial court imposed concurrent sentences of thirty years’ imprisonment for each charge. This appeal followed.
II. STANDARD OF REVIEW
“In criminal cases, the appellate court sits to review errors of law only. This Court is bound by the trial court‘s factual findings unless they are clearly erroneous.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) (internal citations omitted).
1. Venue
After the 2016 mistrial, Sidney moved to change venue in his case from Horry County. The trial court granted this motion, changing the venue to Georgetown County because Sidney could not receive a fair and impartial trial in Horry County due to the massive pre-trial publicity and social media exposure. In particular, the trial court noted a number of possible jurors had posted on their social media that they “knew how to get around the Judge by just saying that [they] can be unbiased.”
Three years later, in May 2019, the State requested the venue be returned to Horry County, noting since the 2016 order changing venue, two juries had been empaneled for this case in Horry County (one in August 2017 for Sidney‘s charge of obstruction of justice related to the facts of this case and one in October 2018 for Tammy‘s trial on these charges); social media saturation had died down; and a fair and impartial jury could be empaneled in Horry County. The trial court granted the State‘s venue motion and transferred venue back to Horry County.
Sidney argues the trial court erred in transferring venue back to Horry County because “social media saturation” regarding Victim‘s disappearance “pervaded” Horry County and jurors had shown “their ability and willingness to bypass impartiality determinations at trial.” Sidney also asserts the venue should have been changed because Victim‘s aunt was the Horry County Clerk of Court, and “her last name and familial status created the appearance of a conflict.” We disagree.
Sidney moved to transfer venue on the first day of his retrial. The trial court noted that out of the 300 hundred members of the jury venire, 173 indicated they had no knowledge of the case on their juror questionnaires. The trial court said these statistics confirmed its decision to change venue back to Horry County but ruled Sidney‘s motion would continue until a jury was empaneled.
During the ensuing voir dire process, several venire members noted they had heard about the case. Almost all of these
After jury selection, Sidney brought up the motion he had filed to excuse the jury and continue trial based on the inherent conflict of interest in holding the case in Horry County where Victim‘s aunt was the clerk of court. Sidney noted the clerk was Victim‘s aunt and the clerk acted as an “extension of the court.” The trial court denied this motion, noting while the clerk was “very much involved with this proceeding, as she should be, she‘s in charge of the courthouse,” it had asked the clerk to let her assistants be the ones in the courtroom handling the case. The trial court did note, however, that the clerk‘s name, Renee Elvis, was on the juror summons.
We find the trial court did not abuse its discretion in denying Sidney‘s motions to change venue back to Horry County. See State v. Evins, 373 S.C. 404, 412, 645 S.E.2d 904, 908 (2007) (“A motion to change venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion.“). First, as to Sidney‘s argument regarding the pre-trial publicity and social media saturation of this case, the trial court carefully examined the jury pool as to their knowledge of the case and their ability to be impartial, excusing every juror who stated they could not be impartial based on their knowledge of the case or knowing
Additionally, Sidney cannot prove any actual prejudice from pretrial publicity because none of the members of the venire with knowledge of the case or who knew any of the witnesses in the case were seated on the petit jury. See Evins, 373 S.C. at 413, 645 S.E.2d at 908 (“It is the defendant‘s burden to demonstrate actual juror prejudice as a result of such publicity.“); id. at 412–13, 645 S.E.2d at 908 (finding defendant did
Second, the trial court was well within its discretion to not change venue due to Victim‘s aunt being the Horry County Clerk of Court. Sidney did not demonstrate he was prejudiced by Victim‘s aunt‘s position as the clerk of court. Sidney did not allege Victim‘s aunt had acted improperly as the clerk of court in this case; he only challenged the appearance of impropriety.
The trial court acted prudently to prevent the appearance of any impropriety by asking Victim‘s aunt to let one of her assistant clerks handle the case, asking Victim‘s aunt to not be in the courtroom for the trial, and not mentioning the clerk‘s name to the jury. Victim‘s aunt was not present for the jury selection, she had no hand in the voir dire process or selecting the jury, and the only time her name was said or provided to
2. Directed Verdict
Sidney argues the trial court erred in denying his motion for a directed verdict because there was no direct or substantial circumstantial evidence that he kidnapped or conspired with Tammy to kidnap Victim. We disagree.
While the State did not present any direct evidence of Sidney‘s guilt, it did present substantial circumstantial evidence. See State v. Zeigler, 364 S.C. 94, 103, 610 S.E.2d 859, 863 (Ct. App. 2005) (“The appellate court may reverse the trial judge‘s denial of a motion for a directed verdict only if there is no evidence to support the judge‘s ruling.“); State v. Curtis, 356 S.C. 622, 633, 591 S.E.2d 600, 605 (2004) (“In reviewing a motion for directed verdict, the trial judge is concerned with the existence of the evidence, not with its weight.“); id. at 633–34, 591 S.E.2d at 605 (“If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the [c]ourt must find the case was properly submitted to the jury.“).
The State presented evidence indicating Victim disappeared against her will. The State also presented evidence Sidney kidnapped Victim, including evidence indicating: (1) Sidney had motive to kidnap and harm Victim—to appease Tammy‘s anger about the affair and to avoid any negative consequences of Victim‘s possible pregnancy; (2) Sidney went to Walmart hours before Victim disappeared to purchase a pregnancy test
Finally, as to Sidney‘s argument there were no signs of struggle at the Landing or in the Moorers’ truck, we note evidence of a struggle is not required to prove a kidnapping occurred, and in cases of inveigling or decoying, there would not be signs of struggle because the victim is tricked into going with their kidnapper willingly. See Stokes, 345 S.C. at 373, 548 S.E.2d at 204 (“[T]he fact that [a victim] was ‘inveigled’ or ‘decoyed’ into going [somewhere with the defendant] negates, in legal contemplation, the voluntariness of her participation.” (internal footnotes omitted)); State v. East, 353 S.C. 634, 637, 578 S.E.2d 748, 750 (Ct. App. 2003) (“South Carolina‘s kidnapping statute requires proof of an unlawful act taking one of several alternative forms, including ... inveiglement[ or] decoy ....” (emphasis added)). The State alleged the Moorers lured Victim to the Landing by having Sidney contact Victim and asking her to meet for the purpose of taking a pregnancy test to determine if she was pregnant with Sidney‘s child. Thus, the State did not have to prove the Moorers kidnapped Victim by force or prove there was a struggle. See Ray v. State, 330 S.C. 184, 188, 498 S.E.2d 640, 642 (1998) (kidnapping was proven when evidence showed the defendant inveigled victim into his truck under the pretense he was taking her to the hospital); see also United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983) (“nothing in the policy of the kidnapping statute justifies rewarding the kidnapper simply because he is ingenious enough to conceal his true motive from his victim until he is able to transport her ... [to another location].“). Accordingly, because the State presented substantial circumstantial evidence Sidney kidnapped Victim, we affirm the trial court‘s denial of Sidney‘s directed verdict motion as to the kidnapping charge.
The State also presented sufficient evidence that Sidney and Tammy conspired to kidnap Victim. Tammy‘s and Sidney‘s iPhones’ locations demonstrated they tracked Victim‘s whereabouts following Tammy‘s discovery of the affair. This and other evidence illustrated vividly that Sidney and Tammy were operating in tandem, focusing their joint attention on Victim before she vanished. Tammy controlled Sidney‘s iPhone from November 2, 2013, until the very hour of Victim‘s disappearance, when Sidney began using it again. Sidney admitted that he and Tammy were together in their Ford F-150 in the early morning hours of December 18, 2013, including at the payphone where Sidney called Victim on the night of Victim‘s disappearance and when the SD card was removed from the Moorers’ truck‘s navigational system. Tammy also helped Sidney clean the Moorers’ Ford F-150 truck and would not consent to allowing police officers into the truck. Accordingly,
Conspiracy often can only be proven by circumstantial means, as the crime often lurks in dark caverns, far from the light of day. We conclude there was evidence of a common design and mutual tacit agreement between Tammy and Sidney that went well beyond mere association or suspicion. See State v. Fleming, 243 S.C. 265, 274, 133 S.E.2d 800, 805 (1963). Given the timelines and conduct the evidence bore out, the Moorers’ truck‘s path to the Landing was a fateful link in their long-laid plans, plans that required Sidney and Tammy‘s mutual cooperation. State v. Jeffcoat, 279 S.C. 167, 170, 303 S.E.2d 855, 857 (1983).
3. Expert Testimony
Sidney argues the trial court erred in qualifying Fredericks as an expert in forensic video analysis and allowing him to testify as to his conclusion that the Moorers’ truck was the one in the surveillance videos to the exclusion of “all other vehicles based on headlight pattern” because the conclusion was refuted by Koenig and was unreliable.
This issue is unpreserved for our review. At no time during the pre-trial hearing on the admissibility of Frederick‘s testimony or the trial did Sidney object to Frederick‘s qualifications as an expert in forensic video analysis. Instead, at the pre-trial hearing and at trial, Sidney made it clear that he did not object to Frederick‘s qualifications as an expert or his ability to conclude that the vehicle in the surveillance videos was a Ford F-150. Sidney‘s only objections at the pre-trial hearing and at trial pertained to whether Fredericks could conclude that the vehicle seen in the surveillance videos was the Moorers’ Ford F-150 to the exclusion of all others based on headlight spread pattern analysis. Specifically, at trial, Sidney objected to (1) Frederick‘s ability to conclude the vehicle seen in the surveillance videos was the Moorers’ truck as being outside the scope of Fredericks’ expertise and (2) Fredericks’ stating his opinion before testifying as to his methodology and how he reached his determination. The trial court sustained both objections. As to the first objection, the trial court explained at this point, the State could only ask
IV. CONCLUSION
Accordingly, we affirm (1) the trial court‘s denial of the motion to change venue, (2) the trial court‘s denial of Sidney‘s motion for a directed verdict as to his kidnapping and conspiracy to kidnap charges, and (3) the admission of Fredericks’ expert opinion testimony.
AFFIRMED.
GEATHERS, J., and LOCKEMY, A.J., concur.