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2011-UP-239 - State v. Hatchell

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.

Middleton L. Hatchell, Appellant.


Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge


Unpublished Opinion No. 2011-UP-239
Submitted May 1, 2011 – Filed May 24, 2011   


AFFIRMED


Benjamin A. Stitely and Robert T. Williams, Sr., both of Lexington, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Middleton L. Hatchell appeals his convictions for two counts of second-degree criminal sexual conduct (CSC) with a minor, one count of lewd act upon a child, and one count of disseminating harmful material to a minor.  He argues the trial court erred in denying his motions to quash the indictments and motions for a directed verdict.  We affirm.[1]

I. INDICTMENTS

Hatchell argues the trial court erred in denying his motions to quash the indictments because the periods stated on the indictments were too long to provide notice of the charges against him.  We disagree.

To determine whether the period alleged in the indictment provides sufficient notice to a defendant, this court uses a two-prong test: "(1) whether time is a material element of the offense; and (2) whether the time period covered by the indictment occurred prior to the return of the indictment by the grand jury."  State v. Tumbleston, 376 S.C. 90, 98-99, 654 S.E.2d 849, 853-54 (Ct. App. 2007). 

Here, the periods alleged in Hatchell's indictments provided him sufficient notice to prepare an adequate defense.  First, time is not a material element of the CSC, lewd act, or dissemination offenses.  State v. Baker, 390 S.C. 56, 62-63, 700 S.E.2d 440, 442 (Ct. App. 2010); see also S.C. Code Ann. § 16-15-385(A)-(B) (2003) (providing a person is guilty of disseminating harmful material to minors "if, knowing the character or content of the material, he . . . allows a minor to review or peruse material that is harmful to minors" or  "allows a minor to view a live performance which is harmful to minors").  Second, the periods alleged in the indictments occurred before Hatchell was indicted.  Accordingly, the trial court properly denied the motions to quash the indictments.

II. MOTIONS FOR A DIRECTED VERDICT

Hatchell maintains the trial court erred in denying his motions for a directed verdict because the State's evidence amounted only to a suspicion of guilt.  We disagree.

"When reviewing a denial of a directed verdict, this [c]ourt views the evidence and all reasonable inferences in the light most favorable to the nonmoving party."  State v. Brannon, 388 S.C. 498, 501, 697 S.E.2d 593, 595 (2010) (internal citations omitted).  "[T]he [S]tate must present any direct evidence or substantial circumstantial evidence . . . from which the defendant's guilt can be fairly and logically deduced."  State v. Muhammed, 338 S.C. 22, 26, 524 S.E.2d 637, 639 (Ct. App. 1999) (citations omitted).

"A person is guilty of [CSC] with a minor in the second degree if: (1) the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age . . . ."  S.C. Code Ann. § 16-3-655(B) (Supp. 2010).  A person is guilty of committing a lewd act upon a child if the person is "over the age of fourteen years [and] . . . willfully and lewdly commit[s] . . . a lewd or lascivious act upon or with the body, or its parts, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the person or of the child."  S.C. Code Ann. § 16-15-140 (2003).  A person is guilty of disseminating harmful material to minors "if, knowing the character or content of the material, he . . . allows a minor to review or peruse material that is harmful to minors" or  "allows a minor to view a live performance which is harmful to minors."  S.C. Code Ann. § 16-15-385(A)-(B) (2003). 

As to the CSC charges, the State presented testimony Hatchell had sex with the victim multiple times while she was between the ages of eleven and twelve.  Regarding the lewd act charge, the State presented testimony Hatchell repeatedly had sex with the victim and touched her breasts and vagina while she was between the ages of nine and twelve.  For the dissemination charge, the State presented testimony Hatchell showed a pornographic video to the victim and did not attempt to turn it off after it began playing.  Accordingly, the trial court properly denied the motions for a directed verdict.

AFFIRMED.

FEW, C.J., PIEPER and LOCKEMY, JJ., concur.


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