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2004-UP-048 - State v. Moorer

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Daniel Moorer,        Appellant.


Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No. 2004-UP-048
Submitted November 19, 2003 – Filed January 21, 2004


AFFIRMED


Chief Attorney Daniel T. Stacey, Office of Appellate Defense, of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief  Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia;  and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.

PER CURIAM: Moorer appeals from his conviction on a first degree burglary charge, arguing that the house he broke into was not a "dwelling” within S.C.Code Ann. § 16-11-10 (2003). We affirm.

FACTS

Appellant Daniel Moorer broke into a house located in St. George on  March 27, 2001. At the time, the house was empty. The owner of the house had died, but the decedent’s daughters had used the house "three times, four time[s] out of the year two or three weeks at a time.” In 2002, a jury convicted Moorer of first degree burglary. The trial judge then sentenced Moorer to fifteen years in prison.        

ISSUES    

(1)   Did the court err in denying Moorer’s motion for directed verdict, ruling that the house was a dwelling as required for first degree burglary?

(2)   Did the court err in limiting Moorer’s closing concerning whether the house was a dwelling?

ANALYSIS: 

"On a motion for a directed verdict in a criminal case, the trial court is concerned with the existence or non-existence of evidence, not its weight.” State v. Robinson, 344 S.C. 220, 223, 543 S.E.2d 249, 250 (App. Ct. 2001). And the appellate court must interpret the evidence in the light most favorable to the state. State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999).

A dwelling is "any house … [or] building … in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property. . . .” S.C.Code Ann. § 16-11-10 (2003). A house can be a dwelling even if it is empty, so long as the dweller has the intention of returning there. State v. Ferebee, 273 S.C. 403, 405, 257 S.E.2d 154, 155 (1979). Therefore, a "[t]emporary absence from a ‘dwelling’ is irrelevant to the charge of first degree burglary.” State v. White, 349 S.C. 33, 36, 562 S.E.2d 305, 306 (2002).

At trial, there was evidence that the decedent’s daughters came to the house three or four times year and had maintained its water, electricity, and telephone services. They had last visited the house about four months before the break-in. The house had not been abandoned. Taking the evidence in the most favorable light for the state, we cannot say that the trial judge erred when she ruled that the house was a dwelling.

Moorer also argues that he should have been allowed to raise the dwelling issue in his closing argument. During his closing, Moorer’s counsel said: "Mr. Moorer lived on Washington Heights. He’s familiar with this property, lived there all his life, 57 years old. He knew nobody was living there.” The state objected on the ground of "facts not in evidence.” A conference ensued among the judge, the prosecutor, and the defense counsel, but the conference was off the record. When the defense counsel continued his closing argument, he did not object on the record to the judge’s apparent decision to sustain the state’s objection. Therefore, the issue was not preserved for appeal. See York v. Conway Ford, Inc., 325 S.C. 170, 173, 480 S.E.2d 726, 728 (1997) ("An objection made during an off-the-record conference which is not made part of the record does not preserve the question for review.”).

Affirmed.

Huff, Stilwell, and Beatty, J.J., concur.