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2012-UP-312 - State v. Twyman

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.


Edward Twyman, Appellant.


Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No. 2012-UP-312
Submitted March 1, 2012 – Filed May 16, 2012   


REVERSED


Appellate Defender Breen Richard Stevens, of Columbia, for Appellant.

John Benjamin Aplin, South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.

PER CURIAM:  Edward Twyman appeals the revocation of his participation in the Department of Probation, Parole and Pardon Services' (the Department) Community Supervision Program (CSP), arguing the circuit court erred in finding he willfully violated a condition of CSP by entering an exclusionary zone.  We reverse.

FACTS/PROCEDURAL HISTORY

In September 2000, Twyman was sentenced to serve twelve years in prison after pleading guilty to second-degree criminal sexual conduct with a minor.  In July 2010, Twyman was released after serving eighty-five percent of his sentence.  Thereafter, Twyman was admitted into CSP, as required by section 24-21-560(A) of the South Carolina Code (2007).  While in CSP, Twyman was required to wear a tracking device and to comply with the Department's Standard Sex Offender Conditions and the CSP Certificate-Conditions of Supervision.  These conditions specified that Twyman was not permitted to "enter into, travel past, or loiter near" the victim's residence or workplace.  Furthermore, Twyman was required to adhere to the following conditions: "I shall follow the advice and instructions of my agent[,] and I agree to comply with any further conditions imposed by the Department or its Agents." 

Upon his release from prison, Twyman moved to a boarding house in Summerville.  One month after Twyman entered CSP, he was arrested after he entered an "exclusionary zone" surrounding the victim's residence.  Twyman's extended family and the victim live in the same vicinity of Ridgeville.  The tracking device alerted Twyman's Probation Agent, Christine Debello, to Twyman's presence in the exclusionary zone.  Agent Debello immediately issued an arrest warrant and proceeded to Twyman's Summerville home, where she arrested him the same day.  Twyman told Agent Debello that when the incident occurred, he was a passenger in a car driven by his aunt's boyfriend; they had stopped at a house in the proximity of the victim's residence.  The tracking device indicated that Twyman had entered the prohibited area surrounding the victim's residence at 12:30 in the afternoon, and he had remained in the area for approximately eleven minutes. 

In November 2010, Twyman appeared before the circuit court for a CSP revocation hearing.  Twyman's arrest warrant stated that he had violated CSP by his "failure to refrain from having contact with the victim."  At the hearing, Agent Debello explained that an exclusionary zone of 279.60 yards had been established around the victim's residence.  Agent Debello testified that although she had told Twyman to stay away from the victim's house, she had not informed him of the radius of the exclusionary zone because "he could calculate the area and be right outside of the zone, and possibly have contact with the victim."  Agent Debello had instructed Twyman: "You need to stay away from the victim's house—that area.  If your family wants to see you to help you out . . . then they need to come to Summerville to see you." 

Agent Debello testified that she had verified Twyman did not go to the victim's home; instead, he "was at a house in close proximity to the victim's residence."  Although Twyman entered the exclusionary zone, he did not attempt to visit the victim's residence or contact the victim.  Twyman had no other CSP violations. 

Twyman's counsel argued that Twyman knew he was not to contact the victim or go to the victim's residence.  However, because Twyman was unaware of the exact location of the exclusionary zone, his inadvertent entry into the area was not a "willful" violation of CSP.  

Following the hearing, the circuit court found Twyman had willfully violated a condition of his CSP, and it sentenced him to serve one year in prison.  This appeal followed.

ISSUE ON APPEAL

Did the circuit court err in finding Twyman willfully violated a condition of his CSP when he ventured into an exclusionary zone?

LAW/ANALYSIS

Twyman contends that because he was not aware of the precise location of the exclusionary zone, his entry into this zone was not a "willful" violation of the terms of his CSP.  Accordingly, Twyman asserts the circuit court abused its discretion in finding that he willfully violated a condition of CSP.  Twyman argues that his mere presence in the prohibited zone was insufficient to support a finding that his entry into the zone was a "voluntary and intentional act done in consciousness."  Conversely, the State argues the evidence supports the circuit court's finding that Twyman willfully entered the exclusionary zone, thereby violating a condition of CSP.  

When the Department determines that a prisoner has committed a violation warranting revocation of CSP, "a probation agent must initiate a proceeding in General Sessions Court.  The proceeding must be initiated pursuant to a warrant or a citation issued by a probation agent setting forth the violations of [CSP]."  S.C. Code Ann. § 24-21-560(C) (2007). 

If the court determines that a prisoner has willfully violated a term or condition of [CSP], the court may impose any other terms or conditions considered appropriate and may continue the prisoner on community supervision, or the court may revoke the prisoner's community supervision and impose a sentence of up to one year for violation of [CSP].  

Id.

"Both the decision of whether an alleged violation was willful and the decision of whether to revoke community supervision are discretionary.  The trial court will not be reversed unless the appellant has shown an abuse of that discretion."  State v. Garrard, 390 S.C. 146, 151, 700 S.E.2d 269, 272 (Ct. App. 2010).  "Where there is any evidence to support the court's factual findings, there is no abuse of discretion."  Id.

In Garrard, the defendant violated a condition of his CSP when he drove within 1,000 feet of a school zone.  Garrard testified that he was unaware that he had entered the exclusionary zone.  Id. The circuit court found Garrard's act was not a willful violation of CSP, and this court affirmed.  Id.  In affirming the circuit court's ruling, this court construed the term "willfully," as used in section 24-21-560(C) of the South Carolina Code, as requiring the state to prove either:

(1) a voluntary and intentional act done with consciousness that the act is a violation of a term of the community supervision program, or (2) the voluntary and intentional failure to do something known to be required by a term of community supervision.

Garrard, 390 S.C. at 150, 700 S.E.2d at 272.

We find the court's holding in Garrard to be instructive.  Agent Debello acknowledged that Twyman was not aware of the specific dimensions of the exclusionary zone around the victim's residence.  The State presented no evidence to suggest that Twyman knowingly or willfully entered the exclusionary zone, or that he made any attempt to contact the victim.  In our view, the agent's instruction "not to go near" the victim's residence or workplace was too vague to hold Twyman responsible for committing "a voluntary and intentional act done with consciousness that the act is a violation of a term of the [CSP]."  See id.  As a result, we hold that Twyman's mere presence in the exclusionary zone—the boundary of which he was unaware—was insufficient to support the revocation of CSP.

CONCLUSION

For the foregoing reasons, the circuit court's order is

REVERSED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.