State v. Legette

• Court: Court of Appeals of South Carolina
• Decided: June 18, 2003
• Docket: 2003-UP-409
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Kurt Legette,        Appellant.

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Appeal From Dillon County
James E. Lockemy, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-409
Submitted April 18, 2003 - Filed June 18, 2003

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AFFIRMED

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Assistant Appellate Defender Tara S. Taggart, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General Deborah R. J. Shupe, of Columbia; Jay E. Hodge, Jr., of Cheraw; for Respondent.

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PER CURIAM:  Appellant, Kirt Legette, was indicted for two counts of attempting or committing a lewd act upon a minor.  He was convicted on both counts and the trial judge sentenced him to four- year terms on each charge.  We affirm. 

FACTUAL/PROCEDURAL BACKGROUND

On the night of June 16, 2000, Patricia Williams took her two daughters, nine year-old Patrice and ten year old Farion, to Margaret Drawhorne’s house and asked her to keep the girls for her while she went out that evening.  Patricia considered Margaret to be like a mother to her, and the two girls referred to Margaret as their grandmother.  When the girls arrived at the home, Margaret was there, along with Kirt Legette, the boyfriend of Margaret’s daughter who lived in the residence with them. 

After Patricia left, the girls began playing Nintendo in one room while Margaret was in another room sleeping.  Patrice testified that as they played the game, Legette came to the door of the room and asked them if they wanted $5.00.  When they responded that they did, Legette told them if they wanted $5.00, they should come knock on his door.  The girls continued playing the Nintendo game, and Legette kept coming back and forth to the door.  He then told them if they wanted a soda to come knock on his door.  Patrice finally went to Legette’s room, and Legette stated, “I’ll give you $5.00 to play with me.”  Patrice told Legette she did not know what he meant, and Legette stated, “Like that.”  Patrice then went back to her sister and told her what had occurred.  Farion then went to Legette’s room, and Patrice heard Legette ask her sister, “Kid, you ever suck a man?”  Farion responded that she had not, and Legette then offered her $5.00 “to suck mine.”  Farion left and told her sister what happened and the two then ran out of the house and down to the Sky Light Club to find their mother. 

Patrice testified that when Legette asked her if she would play with him for $5.00, he was asking her “[t]o play with [his] private parts” meaning his penis or male parts.  She further stated that Legette’s shorts were “jacked up on him” as he laid on the bed, and she could see some of his “private parts.”  When they arrived at the Sky Light Club, the girls found Wanda Drawhorne, Legette’s girlfriend, and they told her what had occurred.  Wanda then went inside and got Patricia for them. 

Farion likewise testified that she and her sister were at Margaret’s house playing a Nintendo game, when Legette kept walking by the door.  Margaret was watching movies, but then fell asleep.  Legette came to the door and asked the girls if they wanted $5.00.  He then told them to knock on his door if they wanted the money.  As they continued to play the Nintendo game, Legette returned and stated, “If y’all want a soda, y’all come knock on my door.”  Eventually, Legette called Patrice to his room, and although reluctant, she went to him.  Legette then asked Patrice if “she want[ed] to play with him.”  Although Patrice understood what Legette meant, she did not want him to know that, so she told him, “I don’t know what you’re talking about.”  After Patrice told Farion what had occurred, Farion went to Legette’s room, and Legette asked Farion if she “ever suck[ed] a man’s penis.”  Farion said, “No.”  Legette then stated, “If you suck mine, I’ll give you $5.00.”  Farion then went back to her sister, and the two ran out of the house and down the street to the Sky Light Club.  They found Wanda Drawhorne and Carolyn Legette at the club and told them the story.  Wanda and Carolyn then went in the club and got Patricia for the girls. 

At the close of the State’s case, Legette moved for a directed verdict arguing there was no evidence he “attempted to do anything to either one of these children” and asserted an offer for them to perform oral sex or “play with him” was not sufficient to constitute an attempted lewd act.  The trial judge denied the motion.  He determined that “playing with someone or . . . oral sex requires a part of the other person’s body” and, therefore, there was sufficient evidence to submit the issue to the jury. 

Shortly after deliberations began, the jury sent a note asking whether “solicitation for oral sex from a minor for payment constitute[s] . . . a lewd and lascivious act upon a minor.”  The trial judge recharged the jury on the definitions of “lewd act” and “lascivious act.”  Within twenty minutes, the jury returned to the courtroom with guilty verdicts on both counts. 

ISSUE

Whether the solicitation of the minors to perform oral sex or “play with” appellant constituted attempts to commit lewd acts upon the minors such that the trial judge properly denied appellant’s motion for directed verdict.

STANDARD OF REVIEW

On appeal from the denial of a motion for directed verdict, an appellate court must view the evidence in the light most favorable to the State.  State v. Green, 350 S.C. 580, 584, 567 S.E.2d 505, 507-08 (Ct. App. 2002); State v. Lollis, 343 S.C. 580, 583, 541 S.E.2d 254, 256 (2001).  Where the State fails to produce evidence of the offense charged, a defendant is entitled to a directed verdict.  Lollis, 343 S.C. at 584, 541 S.E.2d at 256.  When ruling on a directed verdict motion, the trial judge is concerned with the existence of evidence, not its weight.  State v. Walker, 349 S.C. 49, 53, 562 S.E.2d 313, 315 (2002).  “If there is any direct evidence 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 judge should grant a motion for a directed verdict when the evidence merely raises a suspicion the accused is guilty.  Id.

LAW/ANALYSIS

Legette argues on appeal that the trial judge erred in denying his motion for directed verdict.  He asserts, taken in the light most favorable to the State, the testimony might support a charge of contributing to the delinquency of a minor or solicitation, but that there is no evidence he committed or attempted to commit any act whatsoever upon or with the body parts of either child.  He contends the jury question asking whether solicitation for oral sex from a minor constituted a lewd and lascivious act demonstrated that the denial of the directed verdict motion allowed the jury to engage in conjecture and speculation.  We disagree.

South Carolina Code Ann. § 16-15-140 is entitled “Committing or attempting lewd act upon child under sixteen” and provides in pertinent part as follows:

It is unlawful for a person over the age of fourteen years to wilfully and lewdly commit or attempt 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).

“Lewd” and “lascivious” are synonymous terms, often used interchangeably.  State v. Bouye, 325 S.C. 260, 266, 484 S.E.2d 461, 464 (1997). Webster’s Dictionary defines “lewd” as “sexually unchaste or licentious” and defines “lascivious” as “lewd, lustful.”  Webster’s Ninth New Collegiate Dictionary 687, 675 (9^th ed. 1990).  Black’s Law Dictionary defines “lewd” in part as “obscene, lustful, indecent, lascivious, lecherous” and defines “lascivious” as “tending to excite lust; lewd; indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual relations; licentious.” Black’s Law Dictionary 907, 882 (6^th ed. 1990).

In general, an attempt crime is one of specific intent such that the act constituting the attempt must be done with the intent to commit that particular crime.  State v. Nesbitt, 346 S.C. 226, 231, 550 S.E.2d 864, 866 (Ct. App. 2001); State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000).  The State must show the defendant consciously intended the completion of the acts comprising the choate offense, and that the defendant’s specific intent was accompanied by some overt act, beyond mere preparation, in furtherance of the intent, with the actual or present ability to complete the crime.  Nesbitt, 346 S.C. at 231, 550 S.E.2d at 866.  While the act must amount to more than mere preparation and must move directly toward the commission of the crime, it does not necessarily need to be the last proximate step leading to consummation of the offense.  Id. at 231, 550 S.E.2d at 866-67. 

Viewed in a light most favorable to the State there is evidence Legette attempted to get Patrice and Farion to “play” with his genitals and/or perform oral sex on him.  As noted by the trial judge, such actions would require parts of the girls’ bodies.  We agree with the State that there is evidence Legette’s conduct constituted overt acts with the intention of completing the commission of “a lewd or lascivious act . . . with the body, or its parts,” of both Patrice and Farion.   

For the forgoing reason, the appellant’s convictions are

AFFIRMED.

CURETON, ANDERSON and HUFF, JJ., concur.