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2010-UP-218 - State v. Landrum

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.

Robert L. Landrum, Appellant.


Appeal From Lexington County
 James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No. 2010-UP-218
Submitted January 4, 2010 – Filed March 18, 2010   


AFFIRMED


Appellate Defender LaNelle C. DuRant, 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 Harold M. Coombs, Jr., Office of the Attorney General, all of Columbia; Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Robert L. Landrum (Landrum) appeals his conviction for assault upon a state or local correctional employee pursuant to section 16-3-630 of the South Carolina Code (2003).  On appeal, Landrum argues the trial court erred in refusing to charge the jury on self-defense and simple assault.  We affirm.[1]

FACTS

At trial, Corrections Officer Gerry L. Scott (Scott) testified that he conducted an inmate count at the Lexington County Detention Center (Detention Center) on April 29, 2006.  In conducting his count, Scott testified that he entered and completed a brief inspection of Landrum's cell and that Landrum requested a gray bin.[2]  Scott informed Landrum that a gray bin would be provided if one was available.         

Later in the day, Landrum requested a care package, which included a toothbrush, toothpaste, deodorant, and a comb.  Landrum was subsequently informed that a care package was unavailable.  At this point, Landrum's tone became more forceful and aggressive.  Scott stated Landrum then crossed the yellow line[3] and demanded a care package.  As a result of Landrum's behavior, Scott repeatedly instructed Landrum to cross back over the yellow line.  Landrum initially refused to comply with Scott's instruction and said, "Fuck you." 

After this incident, Scott instructed Landrum to return to his cell.  Landrum requested to see a supervisor, but his request was denied. In response, Landrum refused to return to his cell, despite Scott repeatedly ordering Landrum to report to his cell. 

When Scott and Landrum reached the top of the stairs, Scott testified Landrum refused to go any further, and Landrum renewed his request to see a supervisor.  Again, Scott ordered Landrum to return to his cell.  At that point, Scott testified that Landrum approached him in a "very quick manner, aggressive style" and that Landrum glared at him with a locked fist and straight arms and came within eight inches of Scott.  Based on these "attack cues," Scott performed an open palm heel strike[4] to Landrum's chest and attempted to place Landrum in a straight arm bar takedown.  According to Scott, a physical altercation ensued.  Landrum struck Scott on the side of the head and Scott suffered a laceration when his head hit the wall. 

The State called Dr. Carl McCord (Dr. McCord), a physician at Lexington Medical Center Urgent Care, to testify regarding the extent of Scott's injuries.  Dr. McCord stated Scott had "a lot of blood on his face" and an "obvious injury on his right forehead and his eyebrow" that required eighteen sutures. 

The State also called Don Wieder (Wieder), a law enforcement training sergeant with the Lexington County Sheriff's Office.  Wieder testified that he teaches defensive techniques at the South Carolina Criminal Justice Academy.  After the State set forth Wieder's qualifications, the trial court subsequently qualified Wieder as an expert in the use of force.  Wieder testified an officer is trained to create distance when an inmate approaches in an aggressive manner by implementing certain techniques such as stepping back or using a defensive counterstrike.  Based on Scott's testimony, Wieder concluded Scott's palm heel defensive counterstrike and straight arm bar takedown were appropriate responses to Landrum's aggressiveness.   

After the State concluded its case-in-chief, Landrum moved for a directed verdict.  Landrum argued the State did not meet its burden of creating a jury issue for assault upon a state or local correctional employee, and the evidence proved he acted in self-defense.  Also, Landrum requested a jury charge of simple assault as a lesser included offense of section 16-3-630.  The trial court denied Landrum's directed verdict motion and refused to charge simple assault as a lesser included offense.  The jury convicted Landrum of assault upon a state or local correctional employee.  This appeal followed. 

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Martucci, 380 S.C. 232, 246, 669 S.E.2d 598, 605-06 (Ct. App. 2008).  This court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  This court does not reevaluate 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. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct. App. 2007).

LAW/ANALYSIS

A. Self-Defense Jury Charge

Landrum argues he was entitled to a charge of self-defense pursuant to State v. Williams, 367 S.C. 192, 624 S.E. 2d 443 (Ct. App. 2005).  We disagree. 

In Williams, this court held that under the appropriate circumstances, an individual has the right to utilize the amount of resistance reasonably necessary to defend himself in the event excessive force is utilized incident to a lawful arrest.  367 S.C. at 199, 624 S.E.2d at 447.  However, to warrant a self-defense instruction, the evidence must clearly show the accused fully complied with all requirements placed upon citizens subject to a lawful arrest and resisted only to the extent necessary to protect himself from serious physical harm.  Id.

We believe Landrum's reliance on Williams is misplaced.  After a review of the record, we conclude there is no evidence Scott utilized excessive force against Landrum.  In fact, both Scott and Wieder's testimony indicates Scott utilized the appropriate amount of force against Landrum. 

Next, we must examine whether the trial court erred in refusing to charge the jury on the law of self-defense.

A trial court is required to charge only the current and correct law of this State.  State v. Harris, 382 S.C. 107, 113, 674 S.E.2d 532, 535 (Ct App. 2009).  The law to be charged to the jury is determined by the evidence presented at trial.  State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App. 2004).  If any evidence supports a jury charge, the trial court should grant the request.  Id.  A self-defense charge is not required unless it is supported by the evidence.  State v. Slater, 373 S.C. 66, 69, 644 S.E.2d 50, 52 (2007). 

To establish self-defense, the law requires that (1) the defendant be without fault in bringing on the difficulty; (2) the defendant have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) the defendant show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life if his defense is based upon imminent danger of losing his life or sustaining serious bodily injury; and (4) the defendant had no other probable means of avoiding the danger.  State v. Jackson, 384 S.C. 29, 35-36, 681 S.E.2d 17, 20 (Ct. App. 2009).

After a careful review of the record, we conclude the trial court did not err in refusing to charge self-defense.  The record does not support a self-defense charge as requested by Landrum.  The only witnesses that testified in the record were Scott, Dr. McCord, Wieder, and Lieutenant McDaniels.  Of them, only Scott was an eye-witness.  Scott testified Landrum was the first aggressor and repeatedly instructed Landrum to return to his cell.  See Slater, 373 S.C. at 71, 644 S.E.2d at 53 (holding appellant was not entitled to a self-defense charge where the record showed the defendant was the first aggressor and was, therefore not without fault in bringing on the difficulty).  Accordingly, we affirm the trial court's decision not to charge the jury on self-defense.

B. Lesser Included Offense

Landrum contends the trial court erred in refusing to charge simple assault as a lesser included offense of assault upon a state or local correctional employee.  We disagree.

In refusing to charge simple assault as a lesser included offense of assault upon a state or local correctional employee, the trial court reasoned the statute does not distinguish between simple assault and aggravated assault.  However, we conclude the Legislature specifically intended to define and target this specific societal problem of protecting correctional employees by amending and adding section 16-3-630 to the South Carolina Code in 1997.  See generally State v. Mitchell, 362 S.C. 289, 297, 608 S.E.2d 140, 144 (Ct. App. 2005) (overruled on other grounds) (supporting trial court's finding that involuntary manslaughter was not a lesser included offense of homicide by child abuse by acknowledging that the Legislature's creation of a specific statute addressing homicide by child abuse was an effort to define and target that specific societal problem). 

Moreover, even if the Legislature did not intend to specifically target the offense of assault upon a correctional officer, and simple assault is a lesser included offense, we find no reversible error in failing to charge simple assault.   The only evidence is that the victim was a correctional employee performing his job at the time of the assault.  See State v. Davis, 374 S.C. 581, 585, 649 S.E.2d 132, 134 (Ct. App. 2007) (“To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.")  Thus, we conclude the trial court did not err in refusing to charge simple assault as a lesser included offense of assault upon a state or local correctional employee.

CONCLUSION

Accordingly, the trial court's decision is

AFFIRMED.

WILLIAMS, PIEPER, and LOCKEMY, JJ., concur.


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

[2] According to Scott's testimony, a gray bin is a plastic storage container in which personal belongings can be stored. 

[3] The yellow line is a protective barrier for the corrections officers.  Inmates are not allowed to cross the yellow line unless inmates are invited to exit the pod or to conduct business. 

[4] A palm heel strike is a defensive technique designed to stop forward momentum, create distance, and allow a person to complete another technique.