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2012-MO-006 - State v. Carroll

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 Supreme Court

The State, Respondent,

v.

Robert T. Carroll, Appellant.


Appeal from Greenwood County
Eugene C. Griffith, Circuit Court Judge


Memorandum Opinion No.   2012-MO-006
Heard January 24, 2012 – Filed April 4, 2012


AFFIRMED


William Norman Epps, III, of Epps, Nelson and Epps, of Anderson, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott

Senior Assistant Attorney General Harold M. Coombs, Jr., of Office of the Attorney General, of Columbia, Solicitor Jerry W. Peace, of Greenwood, for Respondent.


PER CURIAM: Robert Carroll appeals his convictions for first degree burglary, assault and battery with intent to kill (ABIK), and possession of a firearm or knife during the commission of a violent crime.  He contends the circuit court erred in charging the jury that it could infer malice from the presence of a deadly weapon and that the required intent for ABIK was a general intent to commit serious bodily harm.  He also argues the circuit court erred in admitting a 911 tape into evidence, failing to quash his indictments, and failing to grant a new trial on the first degree burglary charge.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. Permissive Inference of Malice: Tate v. State, 351 S.C. 418, 426, 570 S.E.2d 522, 527 (2002) ("An erroneous malice instruction is harmless if, based on all of the evidence presented to the jury, it did not contribute to the verdict."); Arnold v. State, 309 S.C. 157, 171-72, 420 S.E.2d 834, 842 (1992) (finding an erroneous malice charge did not contribute to the verdict where "[b]ased upon all the evidence presented . . . no rational juror could have failed to find malice").    

2. Requisite Intent for ABIK: State v. Foust, 325 S.C 12, 15, 479 S.E.2d 50, 51 (1996) (noting that proof of specific intent to kill is not required for a conviction of ABIK; the jury need only find general intent); Wharton's Criminal Law and Procedure, § 360 at p. 718-19 (12th Ed. 1957), cited with approval in Foust, 325 S.C. at 15, 479 S.E.2d at 51-52 (stating proof of a specific intent to take life is not necessarily required, so long as there is intent to commit grievous bodily injury such, had death occurred, the offense would have been murder).

3. Admission of 911 tapes: State v. Torres, 390 S.C. 618, 625, 703 S.E.2d 226, 230 (2010) ("The appellate court reviews a trial judge's ruling on admissibility of evidence pursuant to an abuse of discretion standard and gives great deference to the trial court."); State v. Gilchrist, 329 S.C. 621, 630, 496 S.E.2d 424, 429 (Ct. App. 1998) (noting that a trial court has not abused its discretion in allowing evidence to be admitted where the danger of undue prejudice does not substantially outweigh the probative value of the evidence).

4. Failure to Quash Indictments: S.C. Code Ann. § 17-19-20 (2003) (stating that an indictment should be deemed sufficient if it "charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood").  State v. Wilkes, 353 S.C. 462, 465, 578 S.E.2d 717, 719 (2003), overruled on other grounds, State v. Gentry, 363 S.C. 93, 103, 610 S.E.2d 494, 500 (2005) ("An indictment is sufficient if it apprises the defendant of the elements of the offense intended to be charged and apprises the defendant what he must be prepared to meet.").

5. Denial of New Trial on Burglary Charge: State v. Singley, 392 S.C. 270, 277, 709 S.E.2d 603, 606 (2011) (finding a defendant properly charged with burglary where he did not have "custody and control of, and the right and expectation to be safe and secure in, the dwelling burglarized"); State v. Johnson, 376 S.C. 8, 11, 654 S.E.2d 835, 836 (2007) ("A trial judge has the discretion to grant or deny a motion for a new trial, and his decision will not be reversed absent a clear abuse of discretion.").

AFFIRMED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.