State v. Latimore

698 S.E.2d 873, 389 S.C. 599
CourtCourt of Appeals of South Carolina
DecidedAugust 18, 2010
Docket4728
StatusPublished

This text of 698 S.E.2d 873 (State v. Latimore) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Latimore, 698 S.E.2d 873, 389 S.C. 599 (S.C. Ct. App. 2010).

Opinion

389 S.C. 599 (2010)
698 S.E.2d 873

The STATE, Respondent,
v.
Reginald R. LATIMORE, Appellant.

No. 4728.

Court of Appeals of South Carolina.

Heard June 8, 2010.
Decided August 18, 2010.
Rehearing Denied September 24, 2010.

*601 Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney *602 General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., Office of the Attorney General, of Columbia; and Solicitor Robert Mills Ariail, of Greenville, for Respondent.

WILLIAMS, J.

On appeal, Reginald Latimore (Latimore) claims the circuit court committed reversible error at his trial for failing to register as a sex offender when the circuit court (1) failed to grant a mistrial after it instructed the jury that Latimore was convicted of committing a lewd act on a child, despite a pre-trial stipulation not to disclose Latimore's specific conviction to the jury; (2) failed to grant a directed verdict, despite the State's failure to prove Latimore received notice of a new reporting requirement for sex offender registration; and (3) excluded a probation agent's testimony. We affirm.

FACTS

In 2004, Latimore pled guilty to committing a lewd act upon a child. Upon his release from the Department of Corrections in 2005, he was required under the Sex Offender Registry Act[1] to register as a sex offender with the Greenville County's Sheriff's Office. As a result, Latimore registered on August 3, 2005. Latimore acknowledged that he was required to register each year for life within thirty days after the anniversary date of his last registration. Moreover, Latimore signed a notice form at that time, which stated Latimore "MUST send written notice of a change in address to the county Sheriff's Office within ten days of establishing [his] new residence...." (emphasis in original). Latimore signed an annual registration requirement form, which required his annual registration for 2006 to be completed no later than September 3, 2006.

In July 2006, the Legislature amended section 23-3-460 of the South Carolina Code[2] to require offenders to register *603 twice a year—in their birth month as well as six months after their birth month. Pursuant to the amended statute, Latimore was not required to register until January 1, 2007. When Latimore failed to register with the Sheriff's Office in September 2006, a warrant was issued for his arrest. Latimore was subsequently stopped for a traffic violation in January 2007, and the police arrested him for failing to register as a sex offender.

Prior to the commencement of Latimore's trial for failing to register as a sex offender, the State stipulated not to mention Latimore's conviction for commission of a lewd act upon a child. Despite this stipulation, the circuit court mentioned Latimore's conviction when it read the indictment to the jury and during the jury charge.

During trial, Latimore contended he called Beverly Pettit, the Greenville County sex offender registry coordinator, in February 2006 to obtain approval to move into a new home. Latimore testified Ms. Pettit informed him she had all the required information from him, and his phone call to her satisfied his registration requirements for 2006. Ms. Pettit stated she did not remember Latimore calling her, but she acknowledged his file had been pulled in February 2006 and a new address was inserted in place of the address on file from Latimore's initial registration in August 2005. Latimore stated he was under the belief his phone call to Ms. Pettit in February 2006 prior to his required registration date on September 3, 2006, was sufficient for registration purposes.

After Latimore testified, he sought to introduce the testimony of probation agent, R.J. Gilbert. The circuit court found Gilbert's testimony was irrelevant and would not be considered by the jury, but the court permitted Latimore to proffer Gilbert's testimony outside the jury's presence. Gilbert stated he did not typically tell offenders when they should report because it was not his duty. Furthermore, while he was not Latimore's probation agent, nothing in Latimore's file indicated he was ever informed of the new law and the change in reporting requirements. After the court heard Gilbert's proffered *604 testimony and denied Latimore's directed verdict motion, it charged the jury on the law. In its jury charge, the circuit court stated:

Now, ladies and gentlemen, as you know, this defendant in this case is charged with ... failing to register for the sex offender registry. This is a statutory offense, and Section 23-3-430 of our Code of Laws provides, among other things, that any person residing in South Carolina who has been convicted of or pled guilty to the offense of, among other things, committing a lewd act on a child must register on the sex offender registry.

After the jury exited for jury deliberations, Latimore objected to the circuit court specifying Latimore's conviction in its jury charge in light of the parties' stipulation not to mention it and requested a mistrial. The circuit court denied his motion and sentenced Latimore to ninety days of house arrest. This appeal followed.

ISSUES ON APPEAL

On appeal, Latimore presents three claims of error.

(1) The circuit court erred in denying his motion for a mistrial after it instructed the jury that Latimore was convicted of committing a lewd act on a child, despite a pre-trial stipulation not to disclose Latimore's conviction to the jury.

(2) The circuit court erred in denying his motion for a directed verdict, despite the State's failure to prove Latimore received notice of a new reporting requirement for sex offender registration.

(3) The circuit court erred in excluding the probation agent's testimony.

LAW/ANALYSIS

I. Mistrial Motion

Latimore contends the circuit court erred in denying his motion for a mistrial. We disagree.

The decision to grant or deny a mistrial is within the sound discretion of the circuit court. State v. Harris, 382 S.C. *605 107, 117, 674 S.E.2d 532, 537 (Ct.App.2009). The circuit court's decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law. Id. The power of the circuit court to declare a mistrial should be used with the greatest caution under urgent circumstances and for very plain and obvious reasons stated on the record by the circuit court. State v. Stanley, 365 S.C. 24, 34, 615 S.E.2d 455, 460 (Ct.App.2005). A mistrial should only be granted when absolutely necessary, and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial. Id.

Prior to the commencement of trial, the State stipulated not to mention Latimore's conviction for commission of a lewd act upon a child during trial. When the jury entered the courtroom at the commencement of the trial, the circuit court read the indictment, which stated, "[O]n or about January 1st, 2007, [Latimore] ... failed to register for the sexual offender registry after notice of this requirement and after having been convicted of committing a lewd act on a child." Latimore did not object.

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Bluebook (online)
698 S.E.2d 873, 389 S.C. 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-latimore-scctapp-2010.