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2008-UP-047 - State v. Dozier

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.

Joseph A. Dozier, Appellant.


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


Unpublished Opinion No.  2008-UP-047
Submitted January 2, 2008 – Filed January 14, 2008


AFFIRMED


Deputy Chief Attorney for Capital Appeals Robert M. Dudek, South Carolina Commission on Indigent Defense, Division 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 Norman Mark Rapoport, all of Columbia; and Solicitor Cecil Kelly Jackson, Third Circuit Solicitor’s Office, of Sumter, for Respondent.

PER CURIAM:  Joseph A. Dozier (Dozier) appeals his conviction for armed robbery, arguing the trial court erred by (1) refusing to charge the jury on strong armed robbery or common law robbery and (2) deleting the element of “reasonably believed” from the jury re-charge.  We affirm.

FACTS

On February 28, 2005, Dozier entered a convenience store in Clarendon County under the guise of purchasing candy.  As the cashier counted his change, Dozier displayed a handgun.  Dozier then reached into the cash register and took approximately $120.  Surveillance cameras at the convenience store recorded the incident.

Shortly after an investigating officer reviewed the surveillance tape, a vehicle matching the one on the tape was found abandoned in a nearby secluded area.  The cashier identified the abandoned vehicle as the vehicle used during the commission of the robbery. 

Law enforcement then canvassed the nearby area for a suspect.  After review of the surveillance tape, law enforcement identified Dozier as a man they questioned earlier at a nearby hotel.  However, upon return to the hotel, Dozier was no longer at the hotel.

Law enforcement learned Gloria Sweat (Sweat) leased the vehicle used in the robbery.  Law enforcement contacted Sweat, and she identified Dozier in a picture.  Sweat explained Dozier was at her house the night before the robbery.  Sweat added that when she awoke both her car keys and car were missing.  Law enforcement subsequently arrested Dozier, and he then admitted to robbing the convenience store.  

          At trial, the cashier identified Dozier as the person who robbed the convenience store and testified Dozier appeared to use a real gun during the robbery.  At the close of evidence, the trial court denied Dozier’s request to charge the jury on the lesser included offense of strong armed or common law robbery.  The trial court instructed the jury on armed robbery and possession of a weapon during the commission of a violent crime.  After the jury began its deliberation, the foreman returned asking for further instructions on armed robbery.  The trial court re-charged the jury on the elements of armed robbery.  The jury found Dozier guilty of armed robbery and possession of a weapon during a violent crime.  Dozier received a mandatory life sentence.  This appeal follows.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only and is bound by the factual findings of the trial court unless clearly erroneous.  State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001).  “The appellate court does not re-evaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial judge’s ruling is supported by any evidence.”  State v. Mattison, 352 S.C. 577, 583, 575 S.E.2d 852, 855 (Ct. App. 2003).  If any evidence exists in the record, this Court should affirm the trial court.  Wilson, 345 S.C. at 6, 545 S.E.2d at 829. 

LAW/ANALYSIS

I.  Jury Charge

Dozier argues the trial court erred by refusing to charge the jury on strong armed robbery or common law robbery.  We disagree. 

Generally, the trial court is required to charge only the current and correct law of South Carolina.  Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472-73 (2004).  “The law to be charged to the jury is determined by the evidence presented at trial.”  State v. Brown, 362 S.C. 258, 262-63, 607 S.E.2d 93, 95 (Ct. App. 2004).  If any evidence supports a jury charge, the trial court should grant the request.  Id. at 263, 607 S.E.2d at 95.  To warrant reversal, a trial court’s refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.  Id.  “[J]ury instructions should be considered as a whole, and if as a whole they are free from error, any isolated portions which may be misleading do not constitute reversible error.”  State v. Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000). 

“Upon indictment for a greater offense, a trial court has subject matter jurisdiction to convict a defendant for any lesser included offense.” State v. Tyndall, 336 S.C. 8, 21, 518 S.E.2d 278, 285 (Ct. App. 1999).  A lesser included offense instruction is only required when the evidence warrants such an instruction.  Id.    It is not error to refuse to charge the lesser included offense unless evidence exists which tends to show the defendant was guilty only of the lesser included offense.  Id.  The trial court should refuse to charge a lesser included offense where there is no evidence to show the defendant committed the lesser rather than the greater offense.  State v. Tucker, 324 S.C. 155, 170, 478 S.E.2d 260, 268 (1996).  If based upon the evidence, a jury could rationally find the defendant guilty of the lesser offense, due process requires a lesser included offense be charged.  Tyndall, 336 S.C. at 21-22, 518 S.E.2d at 285.

 “Strong armed 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. Rosemond, 356 S.C. 426, 430, 589 S.E.2d 757, 758 (2003).  Armed robbery, on the other hand, is proved by establishing “the commission of a robbery and either one of the two additional elements: (1) that the robber was armed with a deadly weapon or (2) that the robber alleged that he or she was 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 believed to be a deadly weapon.”  State v. Jones, 342 S.C. 248, 252-53, 536 S.E.2d 396, 398 (Ct. App. 2000) (quotations omitted).

In view of the evidence presented in this case, the trial court did not err in denying Dozier’s request to charge the lesser included offense of strong armed or common law robbery.  The evidence shows Dozier entered into a convenience store and removed money from the cash register while brandishing a gun.  Further, the cashier testified he thought the gun was real.  Therefore no evidence tends to show Dozier was guilty only of strong armed robbery.  The only reasonable inference to be drawn from the totality of the evidence is Dozier committed the offense while in possession of a deadly weapon, or at the very least, Dozier alleged he was armed with a deadly weapon during the commission of the robbery, and the cashier reasonably believed it to be a deadly weapon. 

Accordingly, we find the trial court did not err by refusing to charge the jury on strong armed or common law robbery. 

II.  Jury Re-charge

Dozier next argues the trial court erred by deleting the element of “reasonably believed” from the re-charge to the jury of the instruction for armed robbery.  We disagree.

“A jury charge is correct if, when the charge is read as a whole, it contains the correct definition and adequately covers the law.  In re McCracken, 346 S.C 87, 94, 551 S.E.2d 235, 239 (2001). 

Dozier maintains the trial court erroneously deleted the words “reasonably believed” from the re-charge of the law.  The record demonstrates the trial court used the words “reasonably believed” at least three times during the re-charge of the law.  In addition, the trial court cited relevant portions of South Carolina case law to aid the jury in understanding the elements of armed robbery.  Accordingly, the trial court’s re-charge of the law, when read as whole, contained the correct instruction on the elements of armed robbery.

CONCLUSION

Based on the foregoing, the decision of the trial court is

AFFIRMED.[1]

ANDERSON, SHORT, and WILLIAMS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.