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3941 - State v. Green

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State, Respondent,

v.

Alvin Jermaine Green, Appellant.


Appeal From Clarendon County
Howard P. King, Circuit Court Judge


Opinion No. 3941
Heard December 7, 2004 – Filed January 31, 2005


VACATED


Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Cecil Kelley Jackson, of Sumter, for Respondent.


ANDERSON, J.:  Alvin J. Green was convicted of criminal sexual conduct (CSC) with a minor in the first degree and CSC with a minor in the second degree.  He contends the trial court lacked subject matter jurisdiction over both offenses.  We vacate the convictions and sentences of Green.

FACTUAL/PROCEDURAL BACKGROUND

Green was charged with two counts of CSC with a minor, both stemming from alleged sexual assaults on the same victim.  The allegation of CSC with a minor in the first degree concerned events before the victim’s eleventh birthday and the second-degree allegation related to a period of time after the victim’s eleventh birthday.  However, three of the four dates listed in the two-count indictment were off by ten years.  At trial, the State moved to amend the indictment to correct the three dates that were ten years earlier than the offenses allegedly occurred.  Defense counsel objected to the amendment, but conceded the language in the indictments followed the statute creating the offenses.  After a discussion, the trial court allowed the amendment, concluding the dates originally included were scrivener’s errors.  Green then waived presentment to the amended indictment while purporting to preserve his objection to the amendment itself.  After the State rested, the defense noted the first count of the amended indictment (for CSC with a minor in the first degree) contained a time span for the alleged offenses which included dates in which Green was too young to be prosecuted in circuit court as well as dates in which such prosecution was proper.  In response, the trial court again amended the first count of the indictment to include only dates in which Green was old enough to be tried as an adult.  The jury found Green guilty as charged and the trial court sentenced him to concurrent fifteen-year prison terms.

LAW/ANALYSIS

The Circuit Court does not have subject matter jurisdiction to convict a defendant of an offense unless: (1) there has been an indictment which sufficiently states the offense; (2) the defendant has waived presentment of the indictment; or (3) the offense is a lesser included offense of the crime charged in the indictment.  State v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002); State v. Guthrie, 352 S.C. 103, 572 S.E.2d 309 (Ct. App. 2002).  An indictment is sufficient to convey jurisdiction if it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend.  Koon v. State, 358 S.C. 359, 595 S.E.2d 456 (2004).  The acts of a court with respect to a matter as to which it has no jurisdiction are void.  Guthrie, 352 S.C. at 107, 572 S.E.2d at 312.

Under section 17-19-100 of the South Carolina Code, if an indictment contains any defect or, “on the trial of any case there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof,” the trial court “may amend the indictment . . . if such amendment does not change the nature of the offense charged.”  S.C. Code Ann. § 17-19-100 (2003).  “After such amendment the trial shall proceed in all respects and with the same consequences as if the indictment had originally been returned as so amended, unless such amendment shall operate as a surprise to the defendant, in which case the defendant shall be entitled, upon demand, to a continuance of the cause.”  Id.  The appropriate analysis for determining whether an amendment to an indictment deprives the trial court of subject matter jurisdiction is whether the amendment changed the nature of the offense charged, not whether the amendment in any way surprised or prejudiced the defendant.  State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001).

Generally, amendments are permitted for the purpose of correcting an error of form, such as a scrivener’s error.  Cutner v. State, 354 S.C. 151, 580 S.E.2d 120 (2003). Otherwise, if the defendant objects to an amendment on grounds that the amended indictment would change the nature of the offense, the trial judge is obligated to inform the parties of the necessity of reindictment or obtain a waiver of presentment from the defendant.  Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994).

“Critical determinations to be made by a court when confronted with the issue of amending the date alleged in an indictment is always whether the amendment alters the nature of the offense charged and surprises the accused, preventing a fair trial.”  State v. Quarles, 261 S.C. 413, 417, 200 S.E.2d 384, 385 (1973).  “A motion to amend the date alleged in an indictment is addressed to the sound discretion of the trial judge, and the burden of showing an abuse of discretion and resulting prejudice is upon the party adversely affected by his ruling thereon.”  Id. at 417, 200 S.E.2d at 386.

The indictment as crafted by the drafter reveals a date deficiency.  The dates contained in the indictment presented to the grand jury apply to a two-year-old defendant and an unborn victim.  At a minimum, the indictment is fatally flawed in regard to an identification and articulation of criminal sexual conduct charges.

Initially, the State moved to amend the indictment to change the dates of the alleged offenses to a current era.  After granting the amendment, the court was confronted with charges against the defendant which could not be tried in the circuit court because of the age of the defendant, i.e., under the age of sixteen.  The court redacted the indictment by extirpating certain dates contained in the indictment relating to the defendant’s being under the age of sixteen.

We decline to place our approbation and imprimatur upon the subject matter juxtaposition between the family court and the circuit court.  The prosecutorial endeavors are not efficacious.  Approval of the amendment activities and rulings in the case under the rubric and guise of salutary and salubrious amendments flies in the face of the grand jury and indictment procedure enunciated in the South Carolina Constitution and applicable statutes.

No precedent is cited in approving the amendatory activities involving the indictment in this case.  The indictment moves through a peripatetic journey from the circuit court to the family court and back to the circuit court as finally amended.

The gravamen of our conclusion rests upon the efficacy of sections 20-7-400 and 20-7-7605 of the South Carolina Code.  Section 20-7-400, titled “Exclusive original jurisdiction of family court,” states:

(A) Except as otherwise provided herein, the court shall have exclusive original jurisdiction and shall be the sole court for initiating action:

                   . . . .

(3) Concerning any child seventeen years of age or over, living or found within the geographical limits of the court’s jurisdiction, alleged to have violated or attempted to violate any State or local law or municipal ordinance prior to having become seventeen years of age and such person shall be dealt with under the provisions of this chapter relating to children.

S.C. Code Ann. § 20-7-400 (1985 & Supp. 2003) (emphasis added).  Under the Children’s Code, the general sessions court ordinarily lacks jurisdiction over individuals under the age of seventeen, with certain exceptions.  See S.C. Code Ann. § 20-7-7605 (Supp. 2003).  Section 20-7-7605 reads in pertinent part:

In accordance with the jurisdiction granted to the family court pursuant to Sections 20-7-400, 20-7-410, and 20-7-420, jurisdiction over a case involving a child must be transferred or retained as follows:

(1) If, during the pendency of a criminal or quasi-criminal charge against a child in a circuit court of this State, it is ascertained that the child was under the age of seventeen years at the time of committing the alleged offense, it is the duty of the circuit court immediately to transfer the case, together with all the papers, documents, and testimony connected with it, to the family court of competent jurisdiction, except in those cases where the Constitution gives to the circuit court exclusive jurisdiction or in those cases where jurisdiction has properly been transferred to the circuit court by the family court under the provisions of this section. The court making the transfer shall order the child to be taken immediately to the place of detention designated by the court or to that court itself, or shall release the child to the custody of some suitable person to be brought before the court at a time designated.  The court then shall proceed as provided in this article.  The provisions of this section are applicable to all existing offenses and to offenses created in the future unless the General Assembly specifically directs otherwise.

                   . . . .

(4) If a child sixteen years of age or older is charged with an offense which, if committed by an adult, would be a misdemeanor, a Class E or F felony as defined in Section 16-1-20, or a felony which provides for a maximum term of imprisonment of ten years or less, and if the court, after full investigation, considers it contrary to the best interest of the child or of the public to retain jurisdiction, the court, in its discretion, acting as committing magistrate, may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offense if committed by an adult.

(5) If a child fourteen or fifteen years of age is charged with an offense which, if committed by an adult, would be a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more, the court, after full investigation and hearing, may determine it contrary to the best interest of the child or of the public to retain jurisdiction. The court, acting as committing magistrate, may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offenses if committed by an adult.

(6) Within thirty days after the filing of a petition in the family court alleging the child has committed the offense of murder or criminal sexual conduct, the person executing the petition may request in writing that the case be transferred to the court of general sessions with a view to proceeding against the child as a criminal rather than as a child coming within the purview of this article. The judge of the family court is authorized to determine this request. If the request is denied, the petitioner may appeal within five days to the circuit court. Upon the hearing of the appeal, the judge of the circuit court is vested with the discretion of exercising and asserting the jurisdiction of the court of general sessions or of relinquishing jurisdiction to the family court. If the circuit judge elects to exercise the jurisdiction of the general sessions court for trial of the case, he shall issue an order to that effect, and then the family court has no further jurisdiction in the matter.

S.C. Code Ann. § 20-7-7605 (Supp. 2003) (emphasis added).  Pursuant to the Children’s Code, “[c]hild” is defined in section 20-7-6605(1):

“Child” means a person less than seventeen years of age.  “Child” does not mean a person sixteen years of age or older who is charged with a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more.  However, a person sixteen years of age who is charged with a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more may be remanded to the family court for disposition of the charge at the discretion of the solicitor.  An additional or accompanying charge associated with the charges contained in this item must be heard by the court with jurisdiction over the offenses contained in this item.

S.C. Code Ann. § 20-7-6605(1) (Supp. 2003).  In Kent v. United States, 383 U.S. 541 (1966), the United States Supreme Court noted the following criteria for determining whether jurisdiction should be waived under the District of Columbia Juvenile Court Act:

1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.

2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.

3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.

4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).

5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.

6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.

7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.

8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.

Id. at 566-67.  The South Carolina Supreme Court, in State v. Corey D., 339 S.C. 107, 529 S.E.2d 20 (2000), concluded that the family court may properly consider the Kent factors when determining whether jurisdiction over a juvenile should be transferred.  Id. at 117-18, 529 S.E.2d at 25-26 (“Moreover, the family court specifically considered the Kent factors, which in previous cases this Court has implicitly approved as appropriate criteria.”).

Facially and legally, jurisdiction of the offenses contained in the amended and re-amended indictment is erroneously placed with the circuit court.  The referenced statutes plainly and luculently demonstrate that the exclusive original jurisdiction of the family court controls all charges pending against a juvenile under the age of sixteen.  The amalgamation and commingling of pending charges with exclusive original jurisdiction in the family court and exclusive original jurisdiction in the circuit court result in an indictment that can NOT be placed in a legally sufficient position by an amendment procedure that simplistically eliminates original family court jurisdiction offenses, leaving original jurisdiction circuit court offenses.  This procedure violates the constitutional and statutory function of the grand jury in South Carolina.

CONCLUSION

Accordingly, the convictions and sentences of Green are

VACATED.

SHORT, J., concurs.

STILWELL, J., dissents in a separate opinion.

STILWELL, J. (dissenting):  I respectfully dissent.  The two amendments to the indictment, in my opinion, neither changed the nature of the offense with which Green was charged nor did they otherwise divest the circuit court of subject matter jurisdiction.

The circuit court lacks subject matter jurisdiction to convict a criminal defendant unless the defendant is charged by an indictment sufficiently stating the offense, the offense is a lesser-included offense of the indicted offense, or the defendant waives presentment of his indictment to the grand jury.  State v. Wilkes, 353 S.C. 462, 464-65, 578 S.E.2d 717, 719 (2003).  An indictment is sufficient where it charges the elements of the offense and sufficiently apprises the defendant of what he must be prepared to meet.  Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995). 

If an indictment contains any defect or there is a “variance between the allegations of the indictment and the evidence offered in proof thereof,” the trial court may amend the indictment if the amendment “does not change the nature of the offense charged.”  S.C. Code Ann. § 17-19-100 (2003).  Unless the amendment operates as a surprise entitling the defendant to a continuance on demand, the trial shall proceed as though the indictment had originally been returned in its amended form.  Id.  Generally, amendments are permitted to correct an error such as a scrivener’s error.  Cutner v. State, 354 S.C. 151, 155, 580 S.E.2d 120, 122 (2003).  “Otherwise, if the defendant objects to an amendment on grounds that the amended indictment would change the nature of the offense, the trial judge is obligated to inform the parties of the necessity of reindictment or obtain a waiver of presentment from the defendant.”  Id. at 155, 580 S.E.2d at 122-23. 

Green contends the second count of the indictment was changed by the amendment at the beginning of trial from an allegation of CSC with a minor in the first degree to CSC with a minor in the second degree.  His argument is based solely on the fact the victim was under the age of eleven on the dates originally listed in the indictment.  See S.C. Code Ann. § 16-3-655(1), (2) (2003).  However, both before and after the amendment, the allegation was that Green committed a sexual battery on the victim who was between the age of eleven and fourteen years old.  The fact the victim was not yet eleven on the dates originally included in the indictment was a mere scrivener’s error the amendment, by design, corrected.  The amendment did not change the nature of the offense.  See State v. McRae, 222 S.C. 194, 199, 72 S.E.2d 451, 453 (1952) (holding amendment changing the date of the alleged offense was proper because the amendment did not change the nature of the offense); cf. State v. Pierce, 263 S.C. 23, 27-28, 207 S.E.2d 414, 416 (1974) (noting when the State produces evidence the crime occurred on a date different than the one in the indictment in a case where the accused relies on an alibi defense, it is proper for the court to amend the indictment and then declare a mistrial to allow the defendant to establish an alibi defense for the new date). 

As to the first count of the indictment, charging Green with CSC with a minor in the first degree, Green argues the trial court lacked subject matter jurisdiction because the indictment alleged he committed the offense at a time he was within the exclusive jurisdiction of the family court.  As drafted, this count of the indictment originally alleged the offenses occurred beginning when Green was just two years old.  However, as evidence the dates were scrivener’s errors, the State noted the victim was not even born during part of the time originally alleged in the indictment.  Again, these errors necessitated, and were corrected by, the amendment at the beginning of trial. 

After the amendment, however, this count of the indictment still alleged conduct occurring before Green’s sixteenth birthday.  The court of general sessions has subject matter jurisdiction over charges alleging CSC with a minor in the first degree.  S.C. Code § 16-3-655(1).  However, under the children’s code it typically lacks jurisdiction over individuals under the age of seventeen, with certain exceptions.  See S.C. Code Ann. § 20-7-7605 (Supp. 2003) (requiring the circuit court, with certain exceptions, to transfer to the family court the case of any child under the age of seventeen who is being criminally prosecuted).  Notwithstanding this general rule, a person sixteen years of age or older who is charged with a Class A, B, C, or D felony is not a child within the meaning of the juvenile justice article of the children’s code, which includes section 20-7-7605.  S.C. Code Ann. § 20-7-6605(1) (Supp. 2003).  Criminal sexual conduct with a minor in the first degree is a Class A felony.  S.C. Code Ann. § 16-1-90 (Supp. 2003).  In accordance with these provisions, the trial court amended the first-degree charge after the State rested to include only those dates in which Green was sixteen years of age or older.  The court also advised it would instruct the jury to only consider allegations on or after that date in rendering its verdict on this charge.  This amendment, like the one at the beginning of the trial, changed dates only, not the nature of the offense charged.  Also, because of the amendment and instruction, Green’s conviction and sentence on this charge only concerned conduct on or after his sixteenth birthday.  Thus, in my opinion the trial court had both subject matter and personal jurisdiction to try Green and I would affirm the conviction.