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2005-UP-021 - State v. Davis

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.

Tony Davis, Appellant.


Appeal From Richland County
 Thomas W. Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2005-UP-021
Heard December 8, 2004 – Filed January 13, 2005


AFFIRMED


Acting Chief Attorney Joseph L. Savitz, III, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,

Senior Assistant Attorney General Mark Rapoport, Office of the Attorney General; and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

PER CURIAM:  Tony Davis appeals his armed robbery conviction asserting the trial judge erred in (1) failing to charge the jury on the lesser-included offense of common law robbery where the evidence showed he only had a BB gun during the commission of the crime and (2) sentencing him to life without the possibility of parole when the prior armed robbery relied on for sentencing was not final as it was a guilty plea for which he had not yet been sentenced.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On June 29, 2000, Bi-Lo employee Robena Young became suspicious of a male customer who continuously walked up and down the same aisle with a buggy, watching her and watching the front office.  Robena then alerted employee Mary Baughman, and Mary then walked to the scanner room to tell employee Jennifer McCollum.  As Mary stepped in the scanner room and began to relay the information to Jennifer, the man came behind Mary into the room, pretending to look behind the door to the scanner room.  When Jennifer asked what the man wanted, he closed the door, pulled up his jacket, and pulled out a gun.  The man pointed the gun at both women and ordered them to the ground.  Robena realized there was a robbery in progress and alerted supervisor Robert Taylor.  Taylor went to the scanner room and knocked on the door.  Upon hearing the knock, the man instructed the two women to stand and pretend as if nothing happened.  The man then opened the door and attempted to pull Robert into the room.  Robert and the man struggled, but Robert began to comply because the man put the gun in Robert’s side.  Just as Robert stepped in the scanner room, the bookkeeper, Penny, opened the door to the cash office.  In an attempt to get away from the man, Jennifer pushed Penny back into the cash office, but the man followed Jennifer in there.  The man opened up the cash drawer, grabbed a big handful of money, and fled from the store. 

A few months later, Investigator Vinson showed the witnesses a photographic line-up that included Davis’ picture.  Mary indicated Davis “could be” the man who robbed the store that day.  Jennifer and Robena both picked Davis’ picture without hesitation.  Davis was thereafter arrested and indicted for armed robbery.  Following a jury trial, Davis was convicted as charged and the trial judge sentenced him to life in prison without the possibility of parole.  This appeal followed.           

LAW/ANALYSIS

I.  Lesser Included Offense

Davis first contends the trial judge erred in refusing to charge the jury on the law of common law robbery because the evidence showed he used a BB gun in the robbery.  We disagree.

During the trial, the parties stipulated that State’s Exhibit No. 16, a BB gun, was found in Davis’ possession in September 2000.  Jennifer McCollum testified Exhibit No. 16 resembled the weapon used by the man who robbed the store.  Investigator Vinson testified State’s Exhibit No. 16 was a “Crossman BB gun” made to look like a “government model 45.”  At the close of the evidence, defense counsel requested a charge on the lesser-included offense of strong armed robbery, asserting whether or not the witnesses reasonably believed the BB gun was a deadly weapon was a matter for the jury.  The trial judge determined the lesser-included offense should not be presented to the jury under the facts of this case.  Thereafter, the court instructed the jury on the law of armed robbery and submitted two verdict forms:  guilty of armed robbery and not guilty. [1]  

A trial court must determine the law to be charged based on the evidence presented at trial.  State v. Crosby, 355 S.C. 47, 51, 584 S.E.2d 110, 112 (2003).  The presence of evidence to sustain a conviction for the crime of a lesser degree determines whether such a charge should be submitted to the jury.  State v. Atkins, 293 S.C. 294, 298, 360 S.E.2d 302, 305 (1987) overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).  Due process requires a lesser-included offense be charged to the jury only when there is evidence from which it could be inferred that the defendant committed the lesser rather than the greater offense.  Id.; State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct. App. 1996).  “[W]here there is no evidence to support a finding that the defendant was guilty of the lesser offense, there can be no error in the failure to charge the lesser offense.”  State v. Gadsden, 314 S.C. 229, 232, 442 S.E.2d 594, 597 (1994).  Concomitantly, where there is no evidence to support a jury instruction on a lesser-included offense, a jury charge which effectively prohibits the jury from considering the lesser-included offense cannot be error.  Id.

Common law 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. Drayton, 293 S.C. 417, 428, 361 S.E.2d 329, 335 (1987).  Armed robbery occurs when one commits a robbery and either:  (1) he is armed with a deadly weapon or (2) he alleges he is armed with a deadly weapon, either by action or words, while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believes to be a deadly weapon.  S.C. Code Ann. § 16-11-330(A) (2003);  State v. Muldrow, 348 S.C. 264, 267-68, 559 S.E.2d 847, 849 (2002).

The only evidence presented at trial indicates the perpetrator was either armed with a deadly weapon [2] , or alleged he was armed with a deadly weapon by action “while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon.”  S.C. Code Ann. § 16-11-330 (2003).  Mary Baughman testified the perpetrator of the crime pointed “a large black pistol” at her.  Robert Taylor stated the gun used was a handgun, and that it was “like a black gun that an officer would carry.”  He further testified that the gun “looked real to me.”  Jennifer McCollum indicated the robber used a big, black handgun.  When defense counsel asked Jennifer whether she understood State’s Exhibit No. 16 was a BB gun she replied, “No, Sir.”  She testified she saw an object that she believed to be an actual handgun, as opposed to a BB gun.  Thus, while the question of whether a BB gun is a deadly weapon may be an issue for the jury, the facts of this case show only that the robber alleged he was armed with a deadly weapon by using a representation of a deadly weapon which the victims reasonably believed to be a deadly weapon.  In other words, while there may be a jury issue as to the first prong of § 16-11-330, there is no jury issue as to the second prong.  There simply is no evidence that Davis was guilty of the lesser-included offense of common law robbery. 

II. Sentencing

Davis also argues the trial judge erred in sentencing him to life without parole based on a prior guilty plea to armed robbery Davis had entered but for which he had not yet been sentenced.  He asserts the lack of sentencing prevented the guilty plea from being a final conviction such that the trial judge could not consider it as a prior offense for sentencing purposes.  We disagree. 

“In the interpretation of statutes, our sole function is to determine and, within constitutional limits, give effect to the intention of the legislature, with reference to the meaning of the language used and the subject matter and purpose of the statute.”  State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511, 515 (1993).  “In construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation.”  Id.  A statute is construed “by determining its meaning from the language used and its subject matter and purposes.”  State v. Carrigan, 284 S.C. 610, 617, 328 S.E.2d 119, 123 (Ct. App. 1985).  If a statute’s language is plain and unambiguous and it conveys a clear and definite meaning, there is no need to employ rules of statutory interpretation.  State v. Morgan, 352 S.C. 359, 366-67, 574 S.E.2d 203, 206-207 (Ct. App. 2002).  Further, when the terms of a statute are clear, the court must apply those terms according to their literal meaning.  Id.  at 367, 574 S.E.2d at 207. 

Section 17-25-45 of the South Carolina Code requires “upon a conviction for a most serious offense as defined by this section, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has one or more prior convictions for:  (1) a most serious offense.”  S.C. Code Ann. § 17-25-45(A)(1) (2003).  It defines “most serious offense” as including armed robbery.  S.C. Code Ann. § 17-25-45(C)(1) (Supp. 2003).  It defines prior conviction as meaning “the defendant has been convicted of a most serious or serious offense, as may be applicable, on a separate occasion, prior to the instant adjudication.”  S.C. Code Ann. § 17-25-45(F) (2003).  Finally, it explicitly defines conviction as “any conviction, guilty plea, or plea of nolo contendere.”  S.C. Code Ann. § 17-25-45(C)(3) (2003) (emphasis added).  The plain meaning of the statute clearly indicates the trial court correctly considered Davis’s guilty plea when making its sentencing determination. 

Further, the legislative intent is clear from the history of § 17-25-45.  Prior to January 1, 1996, this code section provided, “for the purpose of this section only, a conviction is considered a second conviction only if the date of the commission of the second crime occurred subsequent to the imposition of the sentence for the first offense.”  S.C. Code Ann. § 17-25-45(B) (Supp. 1995) (emphasis added).  The statute was amended in 1995 to delete the provision regarding the imposition of sentence, and added the provision defining “conviction” to include a guilty plea.  S.C. Code Ann. § 17-25-45 (Supp. 1995).

Accordingly, both the plain meaning of the statute and the legislative intent clearly show the trial judge properly considered Davis’ prior guilty plea to armed robbery as a prior conviction of a most serious offense for purposes of sentencing.

CONCLUSION

Because there was no evidence to support a finding that Davis was guilty of the lesser offense of common law robbery, we hold there was no error in the jury charge which effectively prohibited the jury from considering the lesser-included offense.  We further hold the trial court properly considered Davis’ prior guilty plea to armed robbery in sentencing Davis to life without parole pursuant to S.C. Code Ann. § 17-25-45.  Therefore, the order of the trial court is

AFFIRMED.

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


[1] While Davis couches his arguments in terms of the trial judge’s failure to charge the jury on the lesser-included offense of common law robbery, it should be noted the trial judge did in fact charge the law of common law robbery in conjunction with charging the jury the law on armed robbery.  It is clear, however, the trial judge refused to submit the charge of common law robbery for the jury’s consideration. 

[2] See  State v. Heck, 304 S.C. 345, 404 S.E.2d 514 (Ct. App. 1991), cert. denied, 502 U.S. 1043, 112 S.Ct. 900, 116 L.Ed.2d 802 (1992) (wherein this court found a BB gun to be a weapon capable of producing great bodily harm such that it qualified as a deadly weapon and was properly submitted as a factual determination for the jury for purposes of an armed robbery charge).