THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State,
Respondent,
v.
John Henry Chancy,
Appellant.
Appeal From Orangeburg County
James C. Williams, Jr., Circuit Court
Judge
Unpublished Opinion No. 2004-UP-654
Submitted November 1, 2004 Filed December
22, 2004
AFFIRMED
Edgar Warren Dickson, of Orangeburg, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General David A. Spencer, all of
Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.
PER CURIAM: John Henry Chancy appeals his
conviction for attempted armed robbery. He argues the trial court erred by
denying his motion for a directed verdict and in admitting identification evidence
that was unduly suggestive and presented a substantial likelihood of misidentification.
We affirm. [1]
FACTS
Catherine Winningham worked for Home
Insurance Agency in Holly Hill. Her office was divided into two distinct offices:
one room with a waist-high counter where she handled insurance matters, and
a separate room where Western Union exchanges were handled. The office was
well lit by both natural and fluorescent lighting. Around 4:00 p.m. on September
24, 2001, a tall, light-skinned black male and a short black male walked into
the insurance agency. The tall male stood by the front door while the short
male approached the counter and asked Winningham for a quote on insurance.
Winningham walked to her computer to get a quote. When she turned around to
ask the short male for some information, he jumped over the counter and pointed
a gun in Winninghams face. Winningham began to scream, ignoring the short
males orders to be quiet and get on the floor. The tall, light-skinned
male stood approximately seventy-two inches from Winningham for the ten-minute
duration of the encounter. Winningham testified she got a very good look at
him. Winninghams screams alerted Mary Jane Goodine in the parking lot, and
the two males fled the building without taking anything. Nearby police officers
witnessed the two men running from the office and a chase ensued. Alvin William
Sumpter and John Henry Chancy were arrested a short time thereafter.
Winningham gave police an oral description of the
two men. She stated the one with the gun had a dark complexion and wore dark
clothes, and the second man was a tall, light-skinned black man wearing light
clothes. The next day, police summoned Winningham to the station to view a
photo lineup. The lineup was comprised of six pictures of black males. Five
of the men in the photographs had dark skin and one had significantly lighter
skin. After viewing the photos for two minutes, Winningham positively identified
the light-skinned individual, Chancy, as the tall man who stood near the door.
Winningham testified she recognized Chancy from the view she had of him in
the office that day.
At trial, Winningham testified she observed the
short male wearing a blue shirt and dark jeans and the tall male wearing jeans
and a light gray sweatshirt. Winningham testified that after the short male
jumped over the counter, she knew that the man did not want a quote and she
was going to be robbed. She stated that cash was not kept in the insurance
office because there was a separate room where it was kept. When asked whether
the gunman ever asked her for cash or her purse, Winningham stated: He couldnt
get me to stop screaming enough, I dont think, to ask me anything.
Mary Jane Goodine testified that as she
was leaving the insurance agency, she passed the two males entering. She stated
she was standing in the parking lot when she heard Winningham start to scream.
Goodine screamed robbery, robbery, robbery, to get the attention of the nearby
police officer directing traffic. The two men bumped into Goodine as they ran
out of the insurance agency. Goodine described the two men to police as a short
male wearing a blue jogging jacket or shirt and a taller male wearing a dark
gray sweatshirt.
At trial, Chancy admitted he was at the
office and was waiting by the door while a dark-skinned individual spoke with
Winningham. He stated he wore a gray sweater jacket and black jogging pants.
Chancy testified he ran out of the office because he panicked, but that he had
no involvement in the attempted robbery.
Chancy made a pretrial motion to exclude
Winninghams identification arguing the photo lineup was unduly suggestive.
After hearing in camera testimony and arguments, the trial court denied the
motion. At the close of the States case, Chancy moved for a directed verdict,
arguing there was no evidence of intent to commit a robbery because there was
no request for money. The trial court denied the motion, finding there was
substantial circumstantial evidence that Chancys intent was to commit a robbery.
Chancy renewed his motions and objections after all evidence had been presented.
The jury convicted Chancy of attempted armed robbery. The trial court sentenced
him to twenty years imprisonment. Chancy appeals.
DISCUSSION
I.
Chancy argues the trial court
erred in failing to grant his motion for a directed verdict because there was
no evidence that the gunman intended to take money or goods or that there was
any money or goods to take in order to commit a robbery. We disagree. [2]
On appeal from the denial of a directed
verdict, an appellate court must view the evidence in the light most favorable
to the State. State v. Lollis, 343 S.C. 580, 583, 541 S.E.2d 254, 256
(2001); State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999);
State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998). When ruling
on a motion for a directed verdict, the trial court is concerned with the existence
of evidence, not its weight. Burdette, 335 S.C. at 46, 515 S.E.2d at
531; State v. Wakefield, 323 S.C. 189, 197, 473 S.E.2d 831, 835 (Ct.
App. 1996). If there is any direct or any substantial circumstantial evidence
reasonably tending to prove the guilt of the accused, an appellate court must
find the case was properly submitted to the jury. Lollis, 343 S.C.
at 584, 541 S.E.2d at 256. Conversely, a trial court should grant a motion
for a directed verdict when the evidence merely raises a suspicion the accused
is guilty. Id. at 584, 541 S.E.2d at 256.
Robbery is defined as the felonious or
unlawful taking of money, goods or other personal property of any value from
the person of another or in his presence by violence or by putting such person
in fear. State v. Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995).
It is a felony to commit robbery while armed with a deadly weapon. S.C. Code
Ann. § 16-11-330(A) (2003). Attempted armed robbery is also a felony. S.C.
Code Ann. § 16-11-330(B) (2003) (A person who commits attempted armed robbery
while armed with a pistol . . . or other deadly weapon, . . . is guilty of a
felony . . . .). Attempted armed robbery is defined as acts towards the commission
of a robbery with the intent to commit the robbery, but the act falls short
of actual completion. State v. Hiott, 276 S.C. 72, 80, 276 S.E.2d 163,
167 (1981). The act towards the commission of the robbery is to be liberally
construed, and it is sufficient if the act goes far enough toward accomplishment
of the crime to amount to the commencement of its consummation. State v.
Quick, 199 S.C. 256, 259, 19 S.E.2d 101, 102 (1942).
This court has addressed acts sufficient
to constitute attempted armed robbery. In State v. Nesbitt, 346 S.C.
226, 550 S.E.2d 864 (Ct. App. 2001), an armed and masked man approached the
front door of a convenience store, waiving a gun. The gunman did not point
the gun at anyone, he did not enter the store, and he fled the scene within
seconds. Nesbitt was charged and convicted of attempted armed robbery. In
affirming the trial courts denial of Nesbitts motion for a directed verdict,
we addressed the intent requirements of attempt crimes:
Attempt crimes are generally ones of specific intent such
that the act constituting the attempt must be done with the intent to commit
that particular crime. State v. Sutton, 340 S.C. 393, 532 S.E.2d 283
(2000). In the context of an attempt crime, specific intent means that the
defendant consciously intended the completion of acts comprising the choate
offense. In other words, the completion of such acts is the defendants purpose.
Id. at 397, 532 S.E.2d at 285 (citing United States v. Calloway,
116 F.3d 1129 (6th Cir. 1997)). Additionally, the State must prove that the
defendants specific intent was accompanied by some overt act, beyond mere preparation,
in furtherance of the intent, and there must be an actual or present ability
to complete the crime. State v. Evans, 216 S.C. 328, 57 S.E.2d 756 (1950);
State v. Quick, 199 S.C. 256, 19 S.E.2d 101 (1942). The preparation
consists in devising or arranging the means or measures necessary for the commission
of the crime; the attempt or overt act is the direct movement toward the commission,
after the preparations are made. Quick, 199 S.C. at 260, 19 S.E.2d
at 103.
Nesbitt, 346 S.C. at 231, 550 S.E.2d at 866.
This court determined a jury could infer from the evidence that an armed robbery
was immediately forthcoming, or that the attempt had begun. Id. at
234, 550 S.E.2d at 868.
Viewing the evidence
in the light most favorable to the State, evidence existed that reasonably tended
to prove Sumpter and Chancy had the intent to commit armed robbery. Sumpter
jumped over the counter, pointed a gun at Winningham, and demanded that she
get down on the floor while Chancy waited by the door. Although Sumpter and
Chancy fled the scene prior to making a demand for money and any money available
was located in another room, the act of pointing the gun at Winningham was an
overt act towards completing the crime of armed robbery. As in Nesbitt,
the jury in the present case could infer from the evidence that the gunman was
attempting to commit armed robbery.
Because the intent to commit armed robbery can
be inferred from the circumstantial evidence in this case, we find the trial
court did not abuse its discretion in submitting this case to the jury. Accordingly,
the trial courts decision to deny the motion for a directed verdict is affirmed.
II.
Chancy next argues the trial court erred in denying
his motion to suppress the photo lineup identification because it was unnecessarily
suggestive and there was a substantial likelihood of misidentification. We
disagree.
In criminal cases, the appellate court sits
to review errors of law only. State v. Cutter, 261 S.C. 140, 147,
199 S.E.2d 61, 65 (1973). We are bound by the trial courts factual findings
unless they are clearly erroneous. State v. Quattlebaum, 338
S.C. 441, 452, 527 S.E.2d 105, 111 (2000). Concerning the admission of evidence,
the trial judges determination will be sustained absent error and resulting
prejudice. State v. Hamilton, 344 S.C. 344, 353, 543 S.E.2d 586,
591 (Ct. App. 2001).
A criminal defendant may be deprived of due process
of law by an identification procedure that is unnecessarily suggestive and conducive
to irreparable mistaken identification. Neil v. Biggers, 409 U.S. 188,
196 (1972). [T]he central question for determining the admissibility of pretrial
identification is whether, under the totality of the circumstances, the procedure
was so impermissibly suggestive as to give rise to a very substantial likelihood
of misidentification. State v. Washington, 323 S.C. 106, 110, 473 S.E.2d
479, 481 (Ct. App. 1996). Consequently, the United States Supreme Court has
developed a two-prong inquiry to determine the admissibility of an out-of-court
identification. Neil, 409 U.S. at 198. First, the court must determine
whether the identification process was unduly suggestive. If the court answers
this question in the affirmative, then it must determine whether the out-of-court
identification was nevertheless so reliable that no substantial likelihood of
misidentification existed. State v. Moore, 343 S.C. 282, 287, 540 S.E.2d
445, 447 (2000) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)).
Courts should consider the totality of the circumstances when employing the
test. Neil, 409 U.S. at 199. Even if some degree of suggestiveness
exists in the pre-trial identification, suppression of the identification is
not automatically required. Suggestiveness alone does not mandate the exclusion
of evidence. State v. Patterson, 337 S.C. 215, 229, 522 S.E.2d 845,
852 (Ct. App. 1999) (citations omitted). [R]eliability is the linchpin in
determining the admissibility of identification testimony. Manson v. Brathwaite,
432 U.S. 98, 114 (1977).
The following factors are to be considered in evaluating the totality of the
circumstances as to whether an identification is admissible:
[T]he opportunity of the witness to view the criminal at the
time of the crime, the witness degree of attention, the accuracy of the witness
prior description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and the
confrontation.
Neil, 409 U.S. at 199; Moore, 343 S.C. at 289, 540 S.E.2d
at 448-49. The corrupting effect of a suggestive identification is to be weighed
against these factors. Manson, 432 U.S. at 114.
The trial court did not make a separate ruling
on each prong but found that under the totality of the circumstances, the photo
lineup was not so unnecessarily suggestive as to result in misidentification.
The trial court noted that Winningham testified in camera that she identified
Chancy based on the view she had of him on the day of the attempted robbery.
We find no reversible error in the trial courts
holding. However, it is patent the photo lineup was unduly suggestive. Winningham
was asked to identify a suspect she described as a light-skinned black man from
six photographs containing only one light-skinned individual. The police officer
who showed Winningham the photo lineup testified that it was suggestive.
The record reveals Chancys photo clearly stood out from the others.
Even though the identification process was unduly
suggestive, no substantial likelihood of misidentification existed. Reviewing
the Neil v. Biggers factors, we find a high degree of reliability regarding
the identification. Neil, 409 U.S. at 199. First, Winningham had the
opportunity to view Chancy at close range for some time. Winningham testified
she viewed Chancy for at least ten minutes from a distance of seventy-two inches
on the day of the incident. Second, Winninghams attention was acute. She
testified she got a very good look at Chancy, and she was the victim of the
crime. Third, Winninghams description of Chancy to the police on the day of
the incident was highly accurate. She described her attacker as a tall, light-skinned
black man wearing light clothes. Chancy matched this description and was apprehended
after police witnessed him fleeing the office. Fourth, Winningham exhibited
a high degree of certainty when she positively identified Chancy after viewing
the photos for only two minutes. Lastly, the length of time between the crime
and the photo lineup was merely one day.
Perhaps the best indication that Winninghams identification
was highly reliable was the testimony of Chancy himself. Chancy freely admitted
that he entered the office, stood by the door, and witnessed an attempted robbery
on the day in question. Several police officers witnessed Chancy running from
the office, and one never lost sight of him until he was apprehended. The only
reasonable inference that can be drawn from these facts is that Winningham correctly
identified Chancy. Therefore, we find the trial court properly admitted the
pretrial identification.
Accordingly, Chancys conviction and sentence
are
AFFIRMED.
HUFF, KITTREDGE, and BEATTY, JJ., concur.
[1] Because oral argument would not aid the court in resolving the issues
on appeal, we decide this case without oral argument pursuant to Rule 215,
SCACR.
[2] Chancys co-defendant with whom he was jointly tried appealed this
same issue. The analysis for this issue follows this courts unpublished
opinion, State v. Sumpter, 2003-UP-545 (S.C. Ct. App. filed Sept. 25,
2003).