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2005-UP-099 - State v. Reeves
PER CURIAM:

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.

Bobby Joe Reeves,        Appellant.


Appeal From Richland County
Henry F. Floyd, Circuit Court Judge


Unpublished Opinion No. 2005-UP-099
Submitted February 1, 2005 – Filed February 10, 2005


AFFIRMED


Acting Chief Attorney Joseph L. Savitz III, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

PER CURIAM:  Bobby Joe Reeves appeals his conviction for first-degree criminal sexual conduct with a minor.  He contends the circuit court lacked subject matter jurisdiction to convict him of this offense because the indictment did not identify the victim by name and did not state the offense with sufficient certainty and particularity.  We affirm. [1]

FACTS

In 1990, when the victim was eight months old, her mother met Reeves through a mutual friend.  For financial reasons, the victim and her mother moved in with Reeves.  During this time, the victim became attached to Reeves and viewed him as a father figure.  Reeves moved out of the home when the victim was five years old.  Despite the move, Reeves maintained contact with the victim and her mother.  The victim had overnight visits with Reeves almost every other weekend.

In 1998, the victim and her mother moved to Georgia.  Reeves continued to maintain a relationship with the victim until July 4, 2000.  According to the victim’s mother, the victim began to act “unusual” after the July 4th weekend.  Toward the latter part of July 2000, Reeves contacted the victim’s mother to schedule a visit with the victim.  When the victim refused to go to Reeves’ home, the victim’s mother questioned her about her decision.  The victim told her mother that Reeves had sexually abused her on several occasions during her visits.

Immediately after this conversation, the victim’s mother contacted law enforcement in Augusta, Georgia.  On July 31, 2000, the case was referred to the Richland County Sheriff’s Department.  Ultimately, a Richland County grand jury indicted Reeves for one count of lewd act upon a child and first-degree criminal sexual conduct (CSC) with a minor.  A jury convicted Reeves of both charges and the trial judge imposed concurrent, fifteen-year sentences.

DISCUSSION

For the first time on appeal, Reeves challenges his conviction for first-degree CSC with a minor on the ground the indictment was invalid. [2]   Specifically, he contends the trial court was divested of subject matter jurisdiction to convict him of this offense because the indictment did not identify the victim by name and did not state the offense with sufficient certainty and particularity.  Based on these alleged deficiencies, Reeves characterizes the indictment as “incomprehensible.”  We disagree.

Issues relating to subject matter jurisdiction may be raised at any time.  Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995).  A circuit court has subject matter jurisdiction if:  (1) there has been an indictment that sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the charge is a lesser-included charge of the crime charged in the indictment.  Id.; see Brown v. State, 343 S.C. 342, 346, 540 S.E.2d 846, 849 (2001) (stating acts of a court with respect to a matter to which it has no subject matter jurisdiction are void). 

South Carolina appellate courts have held the sufficiency of an indictment “must be viewed with a practical eye; all the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached.” State v. Adams, 277 S.C. 115, 125, 283 S.E.2d 582, 588 (1981), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

An indictment is sufficient if it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.  Browning, 320 S.C. at 368, 465 S.E.2d at 359; State v. Gill, 355 S.C. 234, 238, 584 S.E.2d 432, 434 (Ct. App. 2003), cert. denied (Sept. 23, 2004).  “Further, an indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon.” State v. Curtis, 356 S.C. 622, 628-29, 591 S.E.2d 600, 603 (2004).  “An indictment phrased substantially in language of a statute which creates and defines the offense is ordinarily sufficient.”  Id. at 628, 591 S.E.2d at 603; see S.C. Code Ann. § 17-19-20 (2003) (“Every indictment shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided.”).

In the instant case, the indictment for first-degree CSC with a minor provided:

That Bobby Joe Reeves did in Richland County between June 30 and July 4, 2000, wilfully, unlawfully and feloniously commit a sexual battery to wit:  sexual intercourse and/or fellatio and/or any intrusion, however slight, of any part of a person’s body or of any object into the genital and/or anal opening of a person’s body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes, who at the time was less than 11 years of age.  All in violation of SC Code of Laws § 16-3-655.

“A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim who is less than eleven years of age.”  S.C. Code Ann. § 16-3-655 (1) (2003).  A ‘[s]exual battery’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.”  S.C. Code Ann. § 16-3-651(h) (2003).

In terms of Reeves’ complaint concerning the State’s failure to identify the victim by name, we find this omission did not invalidate the indictment.  In several cases, this court and our supreme court have found amendments that corrected the names of victims did not change the nature of the charged offense, and, thus, did not deprive the circuit court of subject matter jurisdiction.  See State v. Sweat, 221 S.C. 270, 273-74, 70 S.E.2d 234, 235-36 (1952) (holding nature of offense of larceny was not changed when State amended indictment to change the name of the victim); State v. O’Neal, 210 S.C. 305, 309, 42 S.E.2d 523, 524-25 (1947) (finding amendment to indictment to correct name of defendant did not change the nature of the offense charged); State v. McGill, 191 S.C. 1, 4-5, 3 S.E.2d 257, 258-59 (1939) (finding issues regarding the victim’s name in an indictment do not involve the circuit court’s jurisdiction); State v. Barnett, 358 S.C. 199, 201 n.1, 594 S.E.2d 534, 535 n.1 (Ct. App. 2004) (holding, in case involving charge of grand larceny of a vehicle, amendment to name of owner of the vehicle was not a jurisdictional flaw); State v. Johnson, 314 S.C. 161, 166, 442 S.E.2d 191, 194 (Ct. App. 1994) (holding amendment to substitute the Corporation for the Foundation involved in charge of breach of trust with fraudulent intent did not deprive the circuit court of subject matter jurisdiction where “nature of the crime charged in the original indictments was not changed by the substitution of the victim in the amended indictments”); cf. State v. Bryson, 357 S.C. 106, 112, 591 S.E.2d 637, 640 (Ct. App. 2003) (concluding amendment to replace name of one victim with another involved in charge of assaulting an officer while resisting arrest divested the circuit court of subject matter jurisdiction given the “amendment replaced the properly indicted count of assaulting an officer while resisting arrest with a second unindicted count of the same crime”).

Although this case involved the omission of the victim’s name and not an amendment, we find the principles outlined in the above-cited cases are applicable.  Moreover, we believe our supreme court’s decision in Thompson v. State, 357 S.C. 192, 593 S.E.2d 139 (2004), is dispositive of this issue.  In Thompson, the defendant pleaded guilty to murder, armed robbery, and two counts of criminal conspiracy.  Several years after the plea, Thompson petitioned our supreme court for a writ of certiorari alleging for the first time that the trial court was without subject matter jurisdiction because the indictments charging him with criminal conspiracy were insufficient.  One of the grounds raised by Thompson was the fact that the indictments did not identify the victim and the co-conspirator and did not specify facts upon which the charges were based.  Our supreme court rejected this contention, finding “the alleged defects regarding the victim’s name, the co-conspirator’s identity, and the particular details of the conspiracy are defects that are facially apparent and do not involve the elements of the offense.”  Id. at 196, 593 S.E.2d at 141. 

Applying Thompson to the instant case, we hold the State’s failure to identify the victim by name did not constitute a jurisdictional defect. [3]   Given this holding, we find it was incumbent upon Reeves to raise this challenge prior to trial. 

Furthermore, viewing the indictment “with a practical eye,” we hold it stated the offense of first-degree CSC with a minor with sufficient certainty and particularity to enable the trial court and Reeves to know what crime was alleged.  Both the caption of the indictment and title preceding the body of the indictment identified the charged offense as first-degree criminal sexual conduct with a minor.  Additionally, the body of the indictment identified the applicable statute, described the alleged sexual battery in terms of the statute, and identified the age of the victim as less than eleven years old.

In support of his argument, Reeves directs our attention to this court’s decision in State v. Ellison, 356 S.C. 33, 586 S.E.2d 596 (Ct. App. 2003).  We find, however, that Ellison is distinguishable from the instant case.  In Ellison, the defendant was indicted pursuant to an allegation that he sexually assaulted a thirteen-year-old girl.  The caption of the indictment and the title preceding the body of the indictment identified the offense as first-degree CSC with a minor.  The body of the indictment stated the victim was thirteen years old and the sexual battery was committed using aggravated force and aggravated coercion.  Id. at 35, 586 S.E.2d at 597.  At the beginning of the trial, the State moved, without objection, to amend the indictment to charge the defendant with first-degree CSC.  The trial court instructed the jury on the offense of first-degree CSC and, on its own initiative, charged the jury on second-degree CSC with a minor as a lesser-included offense.  Id. at 36, 586 S.E.2d at 597.  The jury convicted the defendant of second-degree CSC with a minor. 

On appeal, this court vacated the defendant’s conviction, finding the trial court was without subject matter jurisdiction to convict the defendant of this offense.  Specifically, the court found:  1). second-degree CSC with a minor was not a lesser-included offense of first-degree CSC; and 2). the original indictment did not sufficiently state the offense for which the defendant was indicted.  Regarding the insufficiency of the indictment language, we concluded:  1). the body of the indictment contained allegations for second-degree CSC with a minor, first-degree CSC, and second-degree CSC; and 2). the caption and title of the indictment alleged the crime of first-degree CSC with a minor.  Id. at 38, 586 S.E.2d at 598.   Based on these discrepancies, we held the indictment was unclear as to what judgment the court could pronounce and sentence it could impose.  Id. at 38, 586 S.E.2d at 598.

Unlike Ellison, the indictment in the instant case clearly alleged in the caption, title, and body that Reeves was being charged only with first-degree CSC with a minor.   

Finally, to the extent Reeves characterizes the indictment as “incomprehensible,” we also find this argument to be without merit.  Because the sexual battery described in the indictment merely tracked the language of the definitional statute, Reeves contends he was not apprised of what he was called upon to answer.  Initially, we note the fact that indictment used the statutory language weighs in favor of finding the indictment sufficient given it “charges the crime substantially in the language . . . of the statute prohibiting the crime.”  S.C. Code Ann. § 17-19-20 (2003).  Furthermore, the victim alleged Reeves forced her to perform oral sex and digitally penetrated her on one occasion.  Thus, the victim’s allegations involved different types of sexual battery that are encompassed in the language of the indictment. 

CONCLUSION

Based on the foregoing, we find the circuit court had subject matter jurisdiction to convict Reeves of first-degree CSC with a minor.  Accordingly, Reeves’ convictions and sentences for first-degree CSC with a minor and lewd act upon a minor are

AFFIRMED.

ANDERSON, BEATTY, and SHORT, 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]   We note Reeves does not appeal his conviction and sentence for lewd act upon a minor.  Because he received a concurrent, fifteen-year term of imprisonment, we need not address his issue on appeal.  However, given this issue involves questions of subject matter jurisdiction, we decline to apply the “concurrent sentence doctrine.”  State v. Ervin, 333 S.C. 351, 359, 510 S.E.2d 220, 225 (Ct. App. 1998). 

[3]    We would also point out that the victim was identified by name in the indictment for lewd act upon a minor, the victim testified during an in camera hearing prior to the trial, and the trial judge identified the victim by name during jury selection.