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2004-UP-654 - State v. Chancy

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.

John Henry Chancy,        Appellant.


Appeal From Orangeburg County
James C. Williams, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-654
Submitted November 1, 2004 – Filed December 22, 2004


AFFIRMED


Edgar Warren Dickson, of Orangeburg, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.

PER CURIAM:  John Henry Chancy appeals his conviction for attempted armed robbery.  He argues the trial court erred by denying his motion for a directed verdict and in admitting identification evidence that was unduly suggestive and presented a substantial likelihood of misidentification.  We affirm. [1]

FACTS

Catherine Winningham worked for Home Insurance Agency in Holly Hill.  Her office was divided into two distinct offices:  one room with a waist-high counter where she handled insurance matters, and a separate room where Western Union exchanges were handled.  The office was well lit by both natural and fluorescent lighting.  Around 4:00 p.m. on September 24, 2001, a tall, light-skinned black male and a short black male walked into the insurance agency.  The tall male stood by the front door while the short male approached the counter and asked Winningham for a quote on insurance.  Winningham walked to her computer to get a quote.  When she turned around to ask the short male for some information, he jumped over the counter and pointed a gun in Winningham’s face.  Winningham began to scream, ignoring the short male’s orders to be quiet and get on the floor.  The tall, light-skinned male stood approximately seventy-two inches from Winningham for the ten-minute duration of the encounter. Winningham testified she got a very good look at him.  Winningham’s screams alerted Mary Jane Goodine in the parking lot, and the two males fled the building without taking anything.  Nearby police officers witnessed the two men running from the office and a chase ensued.  Alvin William Sumpter and John Henry Chancy were arrested a short time thereafter.

Winningham gave police an oral description of the two men.  She stated the one with the gun had a dark complexion and wore dark clothes, and the second man was a tall, light-skinned black man wearing light clothes.  The next day, police summoned Winningham to the station to view a photo lineup.  The lineup was comprised of six pictures of black males.  Five of the men in the photographs had dark skin and one had significantly lighter skin.    After viewing the photos for two minutes, Winningham positively identified the light-skinned individual, Chancy, as the tall man who stood near the door.    Winningham testified she recognized Chancy from the view she had of him “in the office that day.”                         

At trial, Winningham testified she observed the short male wearing a blue shirt and dark jeans and the tall male wearing jeans and a light gray sweatshirt.  Winningham testified that after the short male jumped over the counter, she knew that the man did not want a quote and she was going to be robbed.  She stated that cash was not kept in the insurance office because there was a separate room where it was kept.  When asked whether the gunman ever asked her for cash or her purse, Winningham stated: “He couldn’t get me to stop screaming enough, I don’t think, to ask me anything.” 

Mary Jane Goodine testified that as she was leaving the insurance agency, she passed the two males entering.  She stated she was standing in the parking lot when she heard Winningham start to scream.  Goodine screamed “robbery, robbery, robbery,” to get the attention of the nearby police officer directing traffic.  The two men bumped into Goodine as they ran out of the insurance agency.  Goodine described the two men to police as a short male wearing a blue jogging jacket or shirt and a taller male wearing a dark gray sweatshirt. 

At trial, Chancy admitted he was at the office and was waiting by the door while a dark-skinned individual spoke with Winningham.  He stated he wore a gray sweater jacket and black jogging pants.  Chancy testified he ran out of the office because he panicked, but that he had no involvement in the attempted robbery.           

Chancy made a pretrial motion to exclude Winningham’s identification arguing the photo lineup was unduly suggestive.  After hearing in camera testimony and arguments, the trial court denied the motion.  At the close of the State’s case, Chancy moved for a directed verdict, arguing there was no evidence of intent to commit a robbery because there was no request for money.  The trial court denied the motion, finding there was substantial circumstantial evidence that Chancy’s intent was to commit a robbery. Chancy renewed his motions and objections after all evidence had been presented.  The jury convicted Chancy of attempted armed robbery.  The trial court sentenced him to twenty years imprisonment.  Chancy appeals.

DISCUSSION

I.

Chancy argues the trial court erred in failing to grant his motion for a directed verdict because there was no evidence that the gunman intended to take money or goods or that there was any money or goods to take in order to commit a robbery.  We disagree. [2]  

On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State.  State v. Lollis, 343 S.C. 580, 583, 541 S.E.2d 254, 256 (2001); State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999); State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998).  When ruling on a motion for a directed verdict, the trial court is concerned with the existence of evidence, not its weight.  Burdette, 335 S.C. at 46, 515 S.E.2d at 531; State v. Wakefield, 323 S.C. 189, 197, 473 S.E.2d 831, 835 (Ct. App. 1996).  “If there is any direct or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find the case was properly submitted to the jury.”  Lollis, 343 S.C. at 584, 541 S.E.2d at 256.  Conversely, a trial court should grant a motion for a directed verdict when the evidence merely raises a suspicion the accused is guilty.  Id. at 584, 541 S.E.2d at 256.  

“Robbery is defined as the felonious or unlawful taking of money, goods or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear.”  State v. Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995).  It is a felony to commit robbery while armed with a deadly weapon.  S.C. Code Ann. § 16-11-330(A) (2003).  Attempted armed robbery is also a felony.  S.C. Code Ann. § 16-11-330(B) (2003) (“A person who commits attempted armed robbery while armed with a pistol . . . or other deadly weapon, . . . is guilty of a felony . . . .”).  Attempted armed robbery is defined as acts towards the commission of a robbery with the intent to commit the robbery, but the act falls short of actual completion.  State v. Hiott, 276 S.C. 72, 80, 276 S.E.2d 163, 167 (1981).  The “act” towards the commission of the robbery is to be liberally construed, and it is sufficient if the act goes “far enough toward accomplishment of the crime to amount to the commencement of its consummation.”  State v. Quick, 199 S.C. 256, 259, 19 S.E.2d 101, 102 (1942).

This court has addressed acts sufficient to constitute attempted armed robbery.  In State v. Nesbitt, 346 S.C. 226, 550 S.E.2d 864 (Ct. App. 2001), an armed and masked man approached the front door of a convenience store, waiving a gun.  The gunman did not point the gun at anyone, he did not enter the store, and he fled the scene within seconds.  Nesbitt was charged and convicted of attempted armed robbery.  In affirming the trial court’s denial of Nesbitt’s motion for a directed verdict, we addressed the intent requirements of attempt crimes:

Attempt crimes are generally ones of specific intent such that the act constituting the attempt must be done with the intent to commit that particular crime.  State v. Sutton, 340 S.C. 393, 532 S.E.2d 283 (2000).  “In the context of an ‘attempt’ crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense.  In other words, the completion of such acts is the defendant’s purpose.”  Id. at 397, 532 S.E.2d at 285 (citing United States v. Calloway, 116 F.3d 1129 (6th Cir. 1997)).  Additionally, the State must prove that the defendant’s specific intent was accompanied by some overt act, beyond mere preparation, in furtherance of the intent, and there must be an actual or present ability to complete the crime.  State v. Evans, 216 S.C. 328, 57 S.E.2d 756 (1950);  State v. Quick, 199 S.C. 256, 19 S.E.2d 101 (1942).  “The preparation consists in devising or arranging the means or measures necessary for the commission of the crime; the attempt or overt act is the direct movement toward the commission, after the preparations are made.”  Quick, 199 S.C. at 260, 19 S.E.2d at 103.

Nesbitt, 346 S.C. at 231, 550 S.E.2d at 866.  This court determined a jury could infer from the evidence that “an armed robbery was immediately forthcoming, or that the attempt had begun.”  Id. at 234, 550 S.E.2d at 868.

Viewing the evidence in the light most favorable to the State, evidence existed that reasonably tended to prove Sumpter and Chancy had the intent to commit armed robbery.  Sumpter jumped over the counter, pointed a gun at Winningham, and demanded that she get down on the floor while Chancy waited by the door.  Although Sumpter and Chancy fled the scene prior to making a demand for money and any money available was located in another room, the act of pointing the gun at Winningham was an overt act towards completing the crime of armed robbery.  As in Nesbitt, the jury in the present case could infer from the evidence that the gunman was attempting to commit armed robbery. 

Because the intent to commit armed robbery can be inferred from the circumstantial evidence in this case, we find the trial court did not abuse its discretion in submitting this case to the jury.  Accordingly, the trial court’s decision to deny the motion for a directed verdict is affirmed.

II.

Chancy next argues the trial court erred in denying his motion to suppress the photo lineup identification because it was unnecessarily suggestive and there was a substantial likelihood of misidentification.  We disagree.

In criminal cases, the appellate court sits to review errors of law only. State v. Cutter, 261 S.C. 140, 147, 199 S.E.2d 61, 65 (1973).  We are bound by the trial court’s factual findings unless they are clearly erroneous.  State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000).  Concerning the admission of evidence, the trial judge’s determination will be sustained absent error and resulting prejudice.  State v. Hamilton, 344 S.C. 344, 353, 543 S.E.2d 586, 591 (Ct. App. 2001).

A criminal defendant may be deprived of due process of law by an identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification.  Neil v. Biggers, 409 U.S. 188, 196 (1972).  “[T]he central question for determining the admissibility of pretrial identification is whether, under the totality of the circumstances, the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.”  State v. Washington, 323 S.C. 106, 110, 473 S.E.2d 479, 481 (Ct. App. 1996).  Consequently, the United States Supreme Court has developed a two-prong inquiry to determine the admissibility of an out-of-court identification.  Neil, 409 U.S. at 198.  First, the court must determine whether the identification process was unduly suggestive.  If the court answers this question in the affirmative, then it must determine whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed.  State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 447 (2000) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)).  Courts should consider the totality of the circumstances when employing the test.  Neil, 409 U.S. at 199.  “Even if some degree of suggestiveness exists in the pre-trial identification, suppression of the identification is not automatically required.  Suggestiveness alone does not mandate the exclusion of evidence.”  State v. Patterson, 337 S.C. 215, 229, 522 S.E.2d 845, 852 (Ct. App. 1999) (citations omitted).  “[R]eliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

The following factors are to be considered in evaluating the totality of the circumstances as to whether an identification is admissible:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil, 409 U.S. at 199; Moore, 343 S.C. at 289, 540 S.E.2d at 448-49.   The corrupting effect of a suggestive identification is to be weighed against these factors.  Manson, 432 U.S. at 114.

The trial court did not make a separate ruling on each prong but found that under the totality of the circumstances, the photo lineup was not so unnecessarily suggestive as to result in misidentification.  The trial court noted that Winningham testified in camera that she identified Chancy based on the view she had of him on the day of the attempted robbery.

We find no reversible error in the trial court’s holding.  However, it is patent the photo lineup was unduly suggestive.  Winningham was asked to identify a suspect she described as a light-skinned black man from six photographs containing only one light-skinned individual.  The police officer who showed Winningham the photo lineup testified that it was suggestive.    The record reveals Chancy’s photo clearly stood out from the others. 

Even though the identification process was unduly suggestive, no substantial likelihood of misidentification existed.  Reviewing the Neil v. Biggers factors, we find a high degree of reliability regarding the identification.  Neil, 409 U.S. at 199.  First, Winningham had the opportunity to view Chancy at close range for some time.  Winningham testified she viewed Chancy for at least ten minutes from a distance of seventy-two inches on the day of the incident.  Second, Winningham’s attention was acute.  She testified she got a very good look at Chancy, and she was the victim of the crime.  Third, Winningham’s description of Chancy to the police on the day of the incident was highly accurate.  She described her attacker as a tall, light-skinned black man wearing light clothes.  Chancy matched this description and was apprehended after police witnessed him fleeing the office.  Fourth, Winningham exhibited a high degree of certainty when she positively identified Chancy after viewing the photos for only two minutes.    Lastly, the length of time between the crime and the photo lineup was merely one day. 

Perhaps the best indication that Winningham’s identification was highly reliable was the testimony of Chancy himself.  Chancy freely admitted that he entered the office, stood by the door, and witnessed an attempted robbery on the day in question.  Several police officers witnessed Chancy running from the office, and one never lost sight of him until he was apprehended.  The only reasonable inference that can be drawn from these facts is that Winningham correctly identified Chancy.  Therefore, we find the trial court properly admitted the pretrial identification.

Accordingly, Chancy’s conviction and sentence are

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.


[1]  Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.

[2]    Chancy’s co-defendant with whom he was jointly tried appealed this same issue.  The analysis for this issue follows this court’s unpublished opinion, State v. Sumpter, 2003-UP-545 (S.C. Ct. App. filed Sept. 25, 2003).