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2009-UP-248 - State v. Efird

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Darrell R. Efird, Appellant.


Appeal From York County
Lee S. Alford, Circuit Court Judge


Unpublished Opinion No. 2009-UP-248
Submitted May 1, 2009 – Filed May 28, 2009


AFFIRMED


Tricia A. Blanchette, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Kevin S. Brackett, of York, for Respondent.

PER CURIAM:  Darrell R. Efird appeals his conviction and sentence for assault and battery of a high and aggravated nature as a lesser included offense of attempted first-degree criminal sexual conduct (CSC), arguing the trial court erred in denying his motion for a directed verdict on the attempted first-degree CSC charge because there was no proof he used aggravated force.  South Carolina Code Section 16-3-652 (2003) provides:

(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:

(a) The actor uses aggravated force to accomplish sexual battery.

For first-degree CSC, " '[a]ggravated force' means that the actor uses physical force or physical violence of a high and aggravated nature to overcome the victim or includes the threat of the use of a deadly weapon."  S.C. Code Ann. § 16-3-651 (2003).  While the State must show a defendant actually used aggravated force to overcome a victim for first-degree CSC, in the instant case, Efird was charged with attempted first-degree CSC.  "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. Nesbitt, 346 S.C. 226, 231, 550 S.E.2d 864, 866 (Ct. App. 2001).  "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."  State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000) (citations omitted).  In addition to proof of intent, the State must show the defendant effectuated "some overt act, beyond mere preparation, in furtherance of the intent, and there must be an actual or present ability to complete the crime."  Nesbitt, 346 S.C. at 231, 550 S.E.2d at 866.  "[P]reparation 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."  State v. Quick, 199 S.C. 256, 260, 19 S.E.2d 101, 103 (1942).  At trial, the State presented evidence showing Efird was attempting to have sex with the victim, and after she refused, Efird physically grabbed her as she tried to fight him off.  Further, the victim testified Efird only stopped because someone pulled a car into the driveway of the house.  Therefore, the State presented evidence supporting a conclusion: (1) Efird had the specific intent to use physical force to overcome the victim in order to accomplish a sexual battery, and (2) Efird performed an overt act towards the commission of the crime.  Accordingly, we must affirm the trial court’s denial of Efird's motion for a directed verdict.  State v. McCombs, 368 S.C. 489, 493, 629 S.E.2d 361, 363 (2006) (stating if any direct evidence or substantial circumstantial evidence reasonably tends to prove the guilt of the accused, we must find the case was properly submitted to the jury). 

AFFIRMED.[1]

SHORT, WILLIAMS, and LOCKEMY, JJ., concur. 


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