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2004-UP-280 - State v. Johnson
12316

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State,        Respondent,

v.

Ravin L. Johnson,        Appellant.


Appeal From Chester County
Paul E. Short, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-280
Submitted April 6, 2004 – Filed April 26, 2004


AFFIRMED


Teresa L. Norris, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor John R. Justice, of Chester, for Respondent.

PER CURIAM:  Ravin L. Johnson (“Appellant”) appeals his conviction for voluntary manslaughter.  Appellant argues the trial judge erred in failing to grant a directed verdict.  He contends the evidence offered by the State was insufficient to disprove self-defense as a matter of law.  We affirm.

FACTS

On November 3, 2000, Appellant left his home in West Columbia and drove to Chester to pick up his cousins, Ezekiel Darnell and Mario Johnson.  The purpose of the trip was to bring Mario and Ezekiel back to Columbia because Appellant and Mario worked together and both were due at work the next day.

Upon arrival in Chester, Appellant went to Brian Jackson’s house.  There he met Brian, his brother, two of their friends, Mario and Ezekiel.  Shortly thereafter, Appellant, Ezekiel, and Brian decided to go to a party on Cemetery Street to visit Brandon Johnson, another of Appellant’s cousins.  Ezekiel and Appellant rode in Mario’s car, Mario drove Appellant’s truck, and Brian drove his own car.

Appellant and Ezekiel stayed at the party for approximately fifteen minutes before deciding to leave and drive back to Columbia.  Mario drove off first in Appellant’s truck, followed closely by Appellant and Ezekiel in Mario’s car. [1]   Appellant was driving and Ezekiel was riding in the passenger seat.  As Appellant and Ezekiel turned onto Cemetery Street, they noticed Danielle Hughes and Jonathan Mackey walking across the street.   Ezekiel erroneously thought he knew Hughes and, as a result, said something to her as they were passing by.  

Ezekiel noticed that Mackey responded, but he could not make out exactly what had been said because music was playing loudly in the car.  Ezekiel then asked Appellant to back up.  After backing up, it became apparent to Appellant and Ezekiel that Mackey was angry with them.   Mackey then pulled a .38 caliber handgun from his pocket and began firing at the car.   One of the bullets shattered the back window of the car and lodged in the rear seat.

Both Ezekiel and Appellant ducked when the shooting began.  Appellant attempted to shake Ezekiel, but did not get a response.   Ezekiel testified that he became hysterical and panicked.  Unable to get a response from Ezekiel, Appellant reached under his seat and obtained the gun he had taken from his own car earlier in the evening.   Appellant opened his door and fired a single shot at Mackey.  The bullet penetrated Mackey’s cheek where it lacerated the base of the brain and spinal cord.  Mackey died in less than a minute.                      

Appellant then shut his door, pushed Ezekiel up, and drove to his uncle’s house where he attempted to contact his father.  Eventually, Appellant and Ezekiel went back to Columbia.  The next morning, accompanied by Appellant’s mother, father, and uncle, both Appellant and Ezekiel went to the Chester Police Department where they related the previous evening’s events and turned over Appellant’s handgun.

A Chester County grand jury indicted Appellant for murder.  Appellant did not testify at trial.  At the close of the evidence, Appellant’s counsel moved for a directed verdict on the murder charge.  Counsel asserted there was no evidence of “malice aforethought” given the evidence established that Mackey fired the first shot.   However, he stated “there might be evidence to sustain a conviction on the lesser included offense of voluntary manslaughter.”  Throughout this discussion, defense counsel asserted the theory of self-defense.  After hearing arguments from counsel, the judge directed a verdict as to the murder charge, finding there was no evidence tending to show malice aforethought.  The judge then informed counsel that he would charge the jury on voluntary manslaughter.

The jury convicted Appellant of voluntary manslaughter.   After the verdict was read, defense counsel moved for a new trial on the ground the evidence was insufficient as a matter of law as to the charge of voluntary manslaughter.  The judge denied the motion.  He then sentenced Appellant to fifteen years imprisonment.  This appeal follows.

DISCUSSION

Appellant argues the trial judge erred in failing to direct a verdict as to the voluntary manslaughter charge, as the evidence offered by the State was insufficient as a matter of law to disprove self-defense.

In criminal cases, “[a] defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged.”  State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001).  “In reviewing a motion for directed verdict, the trial judge is concerned with the existence of the evidence, not with its weight.”  Id.  “If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury.” State v. McGowan, 347 S.C. 618, 622, 557 S.E.2d 657, 659 (2001).   On appeal from the denial of a motion for directed verdict, this Court must view the evidence in a light most favorable to the State.  Id. 

At trial, Appellant argued that he shot Mackey in self-defense.  In order for a defendant to establish self-defense, the following four elements must exist:

(1) the defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) if his defense is based upon his belief of imminent danger, defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and (4) the defendant had no other probable means of avoiding the danger.

State v. Day, 341 S.C. 410, 416, 535 S.E.2d 431, 434 (2000). 

The defendant has the burden of raising self-defense.  However, once raised, the State has the burden of disproving it beyond a reasonable doubt.  State v. Wiggins, 330 S.C. 538, 544, 500 S.E.2d 489, 492 (1998).  Significantly, in this case, the parties only dispute the existence of the first and fourth elements.       

Initially, we note this issue was not properly raised at trial.  During the discussion regarding Appellant’s motion for a directed verdict on the murder charge, counsel agreed there was evidence to support a voluntary manslaughter charge.  Thus, no motion was ever made to direct a verdict as to the voluntary manslaughter charge.  Although after the jury verdict had been returned, defense counsel made a motion asking the court to “strike the verdict and to find as a matter of law the defendant not guilty of voluntary manslaughter due to the insufficiency of the evidence,” this does not preserve the issue presented by Appellant in this appeal.   In a criminal case, the only way to contest the sufficiency of the evidence post-trial is to move for a new trial.  State v. Follin, 352 S.C. 235, 258, 573 S.E.2d 812, 824 (Ct. App. 2002), cert. denied (May 30, 2003).  In addition, because Appellant did not raise the issue of insufficiency of the evidence as to self-defense in the court below, it cannot be raised for the first time on appeal.  See State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989) (holding that a party cannot raise one ground for directed verdict to the court below and another on appeal).  Therefore, we find the issue presented by appellant was not properly preserved for our review.

In the alternative, Appellant argues the trial judge erred in failing to grant judgment notwithstanding the verdict (JNOV).   However, JNOV motions are civil in nature and are not appropriate in criminal trials.  See Follin, 352 S.C. at 258, 573 S.E.2d at 824 (“A motion for JNOV is a civil trial motion, and thus it is improper for a party to move for JNOV in a criminal trial . . . In criminal matters, a motion for a new trial is the ‘only available post-trial motion addressing the sufficiency of the evidence.’” (quoting State v. Miller, 287 S.C. 280, 282, 337 S.E.2d 883, 884 (1985))) (citations omitted).  Therefore, we need not address this issue.      

In any event, Appellant’s argument fails on the merits as well.  Viewing the evidence in the light most favorable to the State, we find there was sufficient evidence to present to the jury the question of whether Appellant was acting in self-defense or was guilty of voluntary manslaughter. As to the first and fourth elements of self-defense, the State presented evidence that Appellant stopped his car and then backed up in order to hear Mackey’s response to Ezekiel’s comments.  At one point in his statement, Appellant indicated that he reached under his seat for his gun and then fired at Mackey.  Appellant then “got in the car and left.”  The pathologist also testified that the gunshot that killed Mackey was fired at some distance.  Furthermore, the evidence indicates that Appellant had an opportunity to flee the scene given he was driving his car and Mackey was standing in the road.  This evidence and sequence of events reasonably tended to prove that Appellant was not acting in self-defense and was guilty of voluntary manslaughter.  Therefore, the judge properly presented the case to the jury.  See Wiggins, 330 S.C. at 545, 500 S.E.2d at 493 (“‘Reversal of a conviction because of the trial court’s refusing to give a directed verdict on the ground of self-defense is rare.’” (quoting William S. McAninch & W. Gaston Fairey, The Criminal Law of South Carolina 483 (3d ed. 1996) (Supp. 1997 at 77))).

Accordingly, Appellant’s conviction and sentence are

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON, AJ., concur.  


[1] Prior to switching cars with Mario, Appellant removed his handgun from his own car and placed it in Mario’s car.  Ezekiel testified that Appellant did this so that Mario would not get in trouble should he be stopped by the police while driving Appellant’s car.