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2010-UP-435 - State v. Portee

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.

Jimmy Douglas Portee, Appellant.


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


Unpublished Opinion No. 2010-UP-435
Submitted October 1, 2010 – Filed October 12, 2010


AFFIRMED


Deputy Chief Appellate Defender Wanda H. Carter, 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 Deborah R.J. Shupe, and Solicitor Warren B. Giese, all of Columbia, for Respondent.

PER CURIAMAppellant, Jimmy Douglas Portee, was convicted of armed robbery, failure to stop for a blue light, and two counts of assault and battery of a high and aggravated nature and was sentenced to concurrent terms of ten years on the assault charges, three years for the failure to stop, and life without parole for the armed robbery.  Portee appeals, asserting the trial judge erred in denying his motion for directed verdict on the armed robbery charge based upon the insufficiency of evidence of the presence of a deadly weapon or a representation of a deadly weapon.  We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

On November 9, 2006, Family Dollar Store manager Tracey Anderson arrived at work between 7:30 and 7:45 a.m. to prepare the business for opening.  Around 8:00, she heard a loud noise that drew her attention to a man who appeared to be looking at the door for the store's hours of operation.  The man returned to his vehicle and left.  Tracey testified the man was a skinny, light-skinned African-American and she noticed the front end of an older, white, four-door car.  By the time of the store opening at 9:00, employees Erica Wilson and Lisa Ellis had arrived.  Shortly thereafter, while Tracey and Erica were in the stockroom, a man entered the area from the store's back door.  Tracey testified the man was very tall and he wore a knit hat over his face with the eyes cut out of it, and he had on a yellow coat.  The man pulled Tracey and Erica by the hair and moved them out of the stockroom and then forced them to the floor.  The man told Tracey she needed to give him the money.  Erica became hysterical and started screaming, at which time the man threatened to kill the women if they did not do as he said.  While the man used one hand to hold Tracey by her hair, she noticed a bulge in the right pocket of his yellow jacket, and she saw he had his other hand positioned "into his clothes."  At that point, having been threatened, Tracey believed the man was armed.   Erica was left on the floor, while the man nudged Tracey toward the front of the store, pulling her hair.  As they approached the front, Tracey saw Lisa and one of their regular customers, Joan Hooks.  The man instructed Joan to come with him and Tracey and led them to the cash registers.  Tracey bagged all the money from one of the registers and gave it to the man, who then ran out the back door.  During this time, she was able to observe the man wore gray sweatpants and white, scuffed shoes.  Shortly thereafter, Michael Murphy, a minister with the church beside the store, came in and asked if they had been robbed.  When Tracey told him they had, Michael ran to the back after the man, at which time he identified the car and stated the robber had pulled a pistol on him.  Tracey stated the man who robbed them had the same build as the person she had observed at 8:00 that morning.

Sometime after the police arrived at the store, Tracey was taken to another location where she observed Portee, and identified him immediately as the person she had seen at the store at 8:00 that morning and the person who committed the robbery of the store around 9:00 or 9:15.  She recognized his face from the 8:00 a.m. encounter, and the pants and shoes he was wearing from the robbery.  She also testified a white car located near the suspect when she identified him was the same car she had seen earlier that morning in the parking lot.  Additionally, she identified a yellow jacket Portee dropped while running from the police as the jacket worn by the robber that day.  She also made an in-court identification of Portee. 

Customer Joan Hooks testified she was in the store on November 9, 2006 when she heard a loud ruckus in the back.  She then saw Tracey being held by the person robbing the store, who walked Tracey up to the front of the store by her hair.  The man yelled something to her and she walked up to the front with them.  Joan stated she was "not sure what type of weapon he had, but he was walking . . . [Tracey] up towards . . . the cash register."  The man used one hand to grab Tracey's hair and had the other hand inside his jogging pants, "like he had something in his pants."  The man asked Tracey to give him money out of the register and she complied.  After he obtained the money, the man ran out the back of the store.  The minister came in from the church next door and ran through the store following the robber.  The minister then described seeing the white car in the back of the store. 

The authorities were called and Deputy Kilcoyne responded to the scene.  After obtaining a description of the man, his clothing and the vehicle from the witnesses, Deputy Kilcoyne radioed in the information.  Kilcoyne testified Tracey advised him the man "had his hand in his pocket pointing it at her to indicate that he would have a weapon," and "she assumed he had a weapon."

Investigator Unger testified he was on patrol in the area with a trainee at the time of the dispatch for an armed robbery.  He observed a car fitting the description being driven by a man and initiated a traffic stop, which turned into a high speed chase.  During the car pursuit, Unger observed the occupant throw something out of the car, and then noticed him fumbling around and picking up a yellow piece of clothing, later identified as a yellow jacket.  The driver eventually lost control of the vehicle and ran from the car.  As he jumped from the automobile, the man had two black items and a yellow item that were subsequently identified as a black mask, a black sock, and a yellow rain jacket.  After a foot chase, the officers apprehended the man.

The man dropped the yellow jacket while he was running.  Inside the vehicle, officers found rolled money and the black handle of a hacksaw.  In the right front pocket of the yellow rain jacket, officers found a blue cobalt utility knife.  Also collected was a black mask with eye holes.  Testing revealed DNA obtained from the mask matched that of Portee.  A sergeant in the armed robbery division of the Richland County Sheriff's Department testified he deemed the broken-off hacksaw handle to be an item fashioned to look like a firearm, and that such items are often used by persons who do not have access to a real firearm.  He stated any person in fear would think the hacksaw handle was a firearm and that the item inside a pocket of clothing would create a bulge.

At the close of the State's case, Portee moved for a directed verdict arguing, as to the armed robbery, the State failed to produce sufficient evidence the robber was armed or alleged to be armed.  The trial judge determined there was sufficient evidence from which the jury could determine the perpetrator was armed or a person could reasonably believe based on the threat that the perpetrator was armed with a deadly weapon or a representation of a deadly weapon.  He therefore denied the directed verdict motion as to armed robbery, but found it was an issue for the jury based upon the evidence presented.  He thereafter charged the lesser-included offense of robbery.

ISSUE

Whether the trial court erred in denying appellant's motion for directed verdict of the armed robbery charge because there was insufficient proof on the element of whether there was a deadly weapon present, or a representation of a deadly weapon present, in this case.

STANDARD OF REVIEW

"A defendant is entitled to a directed verdict when the State fails to present evidence of the offense charged."  State v. Heath, 370 S.C. 326, 329, 635 S.E.2d 18, 19 (2006).  When ruling on a motion for directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight.  State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  When reviewing the denial of a directed verdict, the appellate court views the evidence and all reasonable inferences in the light most favorable to the state.  Id.  An appellate court may only reverse the trial court's denial of a directed verdict motion if there is no evidence to support the trial court's ruling.  State v. Gaster, 349 S.C. 545, 555, 564 S.E.2d 87, 92 (2002).  If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this court must find the case was properly submitted to the jury.  Weston, 367 S.C. at 292-93, 625 S.E.2d at 648. 

LAW/ANALYSIS

On appeal, Portee contends the appearance of a bulge did not represent a deadly weapon, and there was no corroborative evidence accompanying the threat to kill that would show there was a gun in existence, or a representation of a gun in existence, during the robbery.  He therefore contends there was insufficient evidence on the deadly weapon element such that he was entitled to a directed verdict on the armed robbery charge.   We disagree.

Section 16-11-330(A) of the South Carolina Code provides in pertinent part as follows: 

A person who commits robbery while armed with a pistol, dirk, slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, either by action or words, he was armed 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, is guilty of a felony. . . .

S.C. Code Ann. § 16-11-330(A) (2003).  Under this section:

[T]he State may prove armed robbery by establishing the commission of a robbery and either one of two additional elements:  (1) that the robber was armed with a deadly weapon or (2) that the robber alleged he 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. Muldrow, 348 S.C. 264, 267-68, 559 S.E.2d 847, 849 (2002).  Under the first prong, the presence of a weapon may be inferred from circumstantial evidence.  Id. at 268, 559 S.E.2d at 849.  The display of a deadly weapon is not an essential element of the offense.  State v. Jones, 342 S.C. 248, 252, 536 S.E.2d 396, 398 (Ct. App. 2000) (citing State v. Nix, 288 S.C. 492, 497 n.2, 343 S.E.2d 627, 630 n.2 (Ct. App. 1986)).  However, words alone are not sufficient under either the first prong or the second prong of the statute, and a threat to kill one, in and of itself, is insufficient to establish the element of a deadly weapon.  Muldrow, 348 S.C. at 268-69, 559 S.E.2d at 849-50; State v. Dodd, 354 S.C. 13, 17-18, 579 S.E.2d 331, 333-34 (Ct. App. 2003).

It is the use or alleged use of a deadly weapon that distinguishes armed robbery from robbery.  State v. Moore, 374 S.C. 468, 477, 649 S.E.2d 84, 88 (Ct. App. 2007).  A defendant may be convicted of armed robbery under the statute if the jury concludes that the robber alleged that he was armed under the requisite circumstances without having to conclude that he was, in fact, so armed.  Jones, 342 S.C. at 253, 536 S.E.2d at 398.

We find there is sufficient evidence under both prongs of § 16-11-330(A) such that the trial judge properly denied Portee's motion for directed verdict.  While Portee is correct in asserting that words alone are insufficient to establish the element of a deadly weapon, there is evidence that Portee actually possessed a deadly weapon during the robbery, as well as evidence that Portee alleged, by action or words, he was armed "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."  See §16-11-330(A).

Under the first prong, the display of a deadly weapon is not an essential element of the offense.  Jones, 342 S.C. at 252, 536 S.E.2d at 398. Further, under this prong the presence of a weapon may be inferred from circumstantial evidence.  Muldrow, 348 S.C. at 268, 559 S.E.2d at 849.  Here, the evidence shows that Portee threatened to kill the victims during the robbery and that the yellow raincoat identified by the victims as being worn by Portee, which he threw to the ground while running from the police, contained a utility knife, which constitutes a deadly weapon, in the right pocket.  Additionally, there is evidence Portee used a gun during the robbery, as the minister who ran after Portee following the incident inside the store stated the man pulled a pistol on him.  Because there is evidence Portee used a deadly weapon during his attempt to escape, there is evidence he committed armed robbery.  See State v. Mitchell, 382 S.C. 1, 5, 675 S.E.2d 435, 437-38 (2009) (holding, "when a defendant commits robbery without a deadly weapon, but becomes armed with a deadly weapon before asportation of the victim's property, a conviction for armed robbery will stand," for "the crime of robbery is not completed the moment the stolen property is in the possession of the robbers, but may be deemed to continue during their attempt to escape"); Moore, 374 S.C. at 482-83, 649 S.E.2d at 91  (holding, when one commits a larceny and then displays a weapon so as to overcome the resistance of the witness, the crime is then elevated to armed robbery).  Accordingly, there is substantial circumstantial evidence Portee was actually armed at the time of the robbery.

Additionally, there is evidence Portee alleged he was armed with a deadly weapon, by his action or words, while using a representation of a deadly weapon or an object which the victims could have reasonably believed to be a deadly weapon.  Portee threatened to kill the victims.  Tracey testified, during this time, she noticed a bulge in the right pocket of the man's yellow jacket while he used one hand to hold her by her hair and he positioned the other hand into his clothes.  At that point, having been threatened, Tracey believed the man was armed.  This testimony was further corroborated by Joan, who testified she was not sure what type of weapon he had, but he walked Tracey up toward the register, using one hand to grab Tracey's hair and keeping the other hand inside his pants, "like he had something in his pants."  Further, the State presented evidence from an investigating officer that he believed the hacksaw handle recovered from Portee's car was used by Portee to resemble a firearm, that any person in fear would think the hacksaw handle was a firearm, and that the item inside a pocket of clothing would create a bulge.  Therefore, the State presented substantial circumstantial evidence Portee alleged he was armed with a deadly weapon while using a representation of a deadly weapon or an object which the victims could have reasonably believed to be a deadly weapon.

For the foregoing reasons, we find the trial judge properly denied Portee's motion for directed verdict on the armed robbery charge.  His convictions are therefore

AFFIRMED.      

FEW, C.J., and HUFF and GEATHERS, JJ., concur. 


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