Issue
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State,
Respondent,
v.
Jay Lamar McClellan,
Appellant.
Appeal From Georgetown County
John M. Milling, Circuit Court Judge
Unpublished Opinion No. 2003-UP-319
Submitted April 7, 2003 - Filed May
7, 2003
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Deputy Chief Attorney Joseph L. Savitz, S.C. Office of Appellate
Defense, of Columbia, for appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson
and Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor
John Gregory Hembree, of Conway, for respondent.
PER CURIAM: Jay Lamar McClellan (McClellan)
appeals his conviction of aiding and abetting homicide by child abuse, and his
sentence of life in prison without parole. We affirm in part, reverse in part,
and remand.
FACTUAL/PROCEDURAL BACKGROUND
McClellan was convicted for his actions surrounding
the death of Brandon Ward, the two-year old son of Sabrina Bone. McClellan
moved in with Bone and her children some time around Thanksgiving 1999. The
record shows, at approximately 8:30 p.m. on January 31, 2000, a call was placed
to Georgetown County 911 regarding the possible drowning of a child who was
found face down in a bathtub. A volunteer with the Fire Department was the
first to arrive on the scene, and found Bone screaming and crying while talking
on the phone to 911. McClellan came out the door carrying Brandon, and threw
him to the volunteer. Shortly thereafter, EMS arrived and put Brandon in the
ambulance. Bone told one of the paramedics she found Brandon face down in the
bathtub. Brandon had no pulse, was not breathing, and was in cardiac arrest.
The paramedic testified Brandons condition was not consistent with a drowning,
but it appeared to be more trauma related because he had bruises throughout
his body.
When Brandon arrived at the hospital, he was not
breathing and had no vital signs, no pulse, and no neurological function. Although
Dr. William Richmond and the hospital staff attempted to resuscitate Brandon,
their attempts were futile. Dr. Richmond testified that, upon examination,
it was clear to him that Brandons death was a traumatic one due to injury and
was not consistent with drowning. He stated Brandon was horribly injured,
he had an unbelievable number of bruises and contusions and in seventeen
years, [he] had never seen the number of injuries sustained by any . . . pediatric
trauma patient than [he] had seen on Brandon. Dr. Richmond noted Brandon had
a tremendous amount of injury to his head and neck, and the injuries appeared
to have all been inflicted within twenty-four hours of Brandons death. He
further stated because of the whole confluence of injuries on Brandon, and
the way they appeared, they could not have occurred from a fall or an accident,
but were most likely inflicted by another individual.
Forensic pathologist Dr. Kim Collins performed
an autopsy on Brandon the following day. She discovered Brandon had numerous
bruises and abrasions over his head, neck and back. On his head alone, from
his chin up, he had over thirty bruises. There were knuckle size bruises on
the right side of Brandons jaw, and a large area of bruising on the right side
of his head. Dr. Collins found a large area of hemorrhage under Brandons scalp,
as well as a skull fracture on the right side of his head, and blood under the
skull bleeding into the brain. He also had a large bruise over his left eye
and multiple bruises over his chin, as well as an abrasion and bruises to the
neck. The abrasion to his neck went around the circumference of his neck and
was caused by a ligature. He had hemorrhage into the muscles around the neck,
which Dr. Collins opined would have required a great deal of force. She further
testified that Brandons brain was very swollen, and that the bruising to the
brain would have also required a great deal of force. Dr. Collins stated the
bruises all appeared to be of the same age, and occurred within twenty-four
hours of his death. The cause of Brandons death was asphyxia, with blunt
force trauma to the head.
Frankie Duncan, Brandons grandmother, testified
that on Sunday morning, January 30, 2000, she took Brandon and his twin brothers
to church, as was her usual habit. When she bathed Brandon that morning, she
did not notice any bruises on Brandon besides a pre-existing injury to the back
of his head. After church, Frankie took the children home and left them with
Bone and her boyfriend, McClellan. Although Brandon usually wanted to go back
home after church, on this occasion, he begged his grandmother to not take him
there.
The next morning between 11:00 a.m. and 12:00 noon,
Bones cousin by marriage, Tonya Elliott, visited the home. When she arrived,
McClellan was awake but Bone was still in bed asleep. Elliott noticed some
bruises on Brandons forehead and temple and two lines across his neck. She
stated Brandon was whining and crying, and Bone questioned McClellan about why
he had not awakened her to change the childs wet diaper. Bone also asked McClellan
about the bruises on the childs head. McClellan stated Brandon had fallen
in some butter and hit his head on the couch, but claimed the child had not
cried. When Elliott suggested the child needed to be seen by a doctor,
McClellan gave no response, and Bone stated she couldnt take him because of
the DSS. Later that day when she saw Bone, she asked her how Brandon was doing
and Bone told her he was fine. Elliott indicated the bruises and neck marks
she observed that morning were not as extensive as those observed on Brandons
body after his death.
The testimony at trial indicated McClellan and
Bone drove around that day with Brandon, the three year-old twins, and McClellans
cousin, Marvin, attempting to cash a check. Marvin testified he was with them
for approximately two hours, and that Brandon slept most of that time. At one
point, Brandon raised up in his car seat and looked at Marvin, at which time
Marvin noticed the child was bruised up. At that time, Marvin told them they
needed to take Brandon to the doctor. Marvin estimated he returned to his home
between 6:00 and 7:00 that evening.
After their arrival at Bones home around 7:00
that evening, Bone left the children alone with McClellan while she went to
her grandmothers to obtain food for the family. Bones grandmother testified
Bone was at her house for at least fifteen to twenty minutes filling up three
grocery bags and making three trips to her car.
McClellan testified that after Bone arrived home,
he started the water for the childrens bath. He put Brandon in the bathtub
with the twins and then went into the kitchen while Bone stayed in the bathroom
pulling out face clothes. Bone then walked into the kitchen and was preparing
the food when the children started splashing water. Bone walked back into the
bathroom to stop them. McClellan claimed that after the children continued
splashing water, Bone entered the bathroom again and he heard her beating all
the children. McClellan went to the bathroom door and saw Bone spanking Brandon
in the areas of the small of his back and his buttocks with her hand. McClellan
then turned and walked out. Bone came back into the kitchen, and one of the
twins then came into the kitchen saying, Mama, Brandon. Bone then led the
child back to the bathroom, at which time she ran back out screaming and carrying
Brandon. McClellan testified Bone handed Brandon to him, and he noticed the
child had turned blue.
Testimony showed, at the time Brandon received
his injuries, Bone was wearing a cast on her left hand. McClellan stated in
one of his statements to police that he had to assist Bone in doing everything
because of her injury. He again admitted at trial that because she didnt have
the use of both hands, he had to help Bone do just about everything she did
after she messed up her thumb.
The State presented the testimony of Tonya Etheridge,
who was in the Georgetown County Detention Center at the same time as McClellan
in May 2001. Etheridge testified she knew both Bone and McClellan, and that
McClellan called her over to talk with him. He questioned Etheridge about her
knowledge of what had happened and then asked her if she thought he had done
it. He then stated to her that somebody had to punish the little bastards.
Etheridge stated McClellan was laughing throughout their discussion.
The State also presented the testimony of Tammy
Drawdy, who lived with Bone and McClellan in the two-week period prior to Brandons
death. Drawdy testified that she observed McClellan spanking Bones five year-old
daughter when he got upset with her. She stated McClellan grabbed the child,
held her up by the arm and was just beating her. She further testified that
on Saturday morning, Brandon had come to her about 8:00 asking for some milk.
She told him to go ask Bone. Brandon went to the door, turned around and came
running back, stating that McClellan was in the room. When Drawdy again told
Brandon to ask his mother and assured him McClellan would not bother him, Brandon
refused, and Drawdy ultimately got up and gave Brandon some milk.
Finally, the State presented the testimony of Anthony
Elliott, who testified that the day after Brandons death, McClellan stated
to him that he (McClellan) had to get away from town. The parties stipulated
that Bone was charged with and convicted of homicide by child abuse in the death
of Brandon.
McClellan was indicted for murder, homicide by
child abuse, and aiding and abetting homicide by child abuse. McClellan moved
for a directed verdict on all charges at the conclusion of the States case.
The trial court granted McClellans motion for a direct verdict on the murder
charge but denied it for the other charges.
A jury acquitted McClellan of the homicide by child
abuse charge, but convicted him of aiding and abetting homicide by child abuse.
The trial court sentenced McClellan to life imprisonment without parole under
S.C. Code Ann. § 17-25-45(A) after concluding he had a previous conviction for
car jacking.
ISSUES
I.
Did the trial judge err in failing to direct a verdict of acquittal for
McClellan on charges of aiding and abetting homicide by child abuse?
II.
Did the trial judge err by sentencing McClellan to life without parole
where the State did not provide written notice under S.C. Code § 17-25-45?
LAW/ANALYSIS
I. Motion for Directed Verdict
McClellan first contends that the
trial judge erred in refusing to direct a verdict on the charge of aiding and
abetting homicide by child abuse. He argues the State only proved he was merely
present at the time Bone beat and strangled Brandon, and failed to prove he
aided and abetted in Brandons homicide. We disagree.
In reviewing the denial of a motion for a directed
verdict, the evidence must be viewed in the light most favorable to the State,
and 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 that the case was properly submitted to the jury. State v. Kelsey,
331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998). In ruling on a motion for a directed
verdict, the trial court is concerned with the existence of evidence, not its
weight. Id. If the State presents any evidence which reasonably tends
to prove the defendant's guilt or from which his guilt could be fairly and logically
deduced, the trial court must send the case to the jury. State v. Jarrell,
350 S.C. 90, 97, 564 S.E.2d 362, 366 (Ct. App. 2002).
A person is guilty of homicide by child
abuse who . . . knowingly aids and abets another person to commit child abuse
or neglect as defined in Section 20-7-490 and the child abuse or neglect results
in the death of a child under the age of eleven. S.C. Code Ann. § 16-3-85(A)(2)
(Supp. 1999). [1] Aid and abet has been defined as [h]elp, assist, or facilitate
the commission of a crime, promote the accomplishment thereof, help in advancing
or bringing it about, or encourage, counsel, or incite as to its commission.
Blacks Law Dictionary 68 (6th ed. 1990). It comprehends all assistance
rendered by words, acts, encouragement, support, or presence, actual or constructive,
to render assistance if necessary. Id.
We believe when viewing the evidence in a light
most favorable to the State, substantial circumstantial evidence existed which
reasonably tended to prove McClellans guilt of aiding and abetting child abuse.
The trial testimony indicated Brandon suffered numerous bruises, abrasions,
and blunt force trauma at a time when he was only in the care of McClellan and
Bone. On the day before Brandons death, he was found injured while his mother
was asleep and McClellan was awake. Further, the young children were left in
McClellans care for at least fifteen minutes during the one and a half hour
period prior to the 911 call. The medical expert testimony indicated that there
were numerous bruises and abrasions to Brandons head and back and strangulation
marks on his neck that could not have occurred from an accident, but were intentionally
inflicted by another. The pathologist testified that both the neck injury and
the bruising to Brandons brain would have required a great deal of force, yet
the evidence showed Bones left hand was in a cast at the time of the incident,
making it difficult for her alone to have inflicted the numerous, forceful injuries
on Brandon. Further, McClellan admitted in his statement to police and again
at trial that he had to help Bone do everything because of her injury.
Finally, there was testimony that McClellan indicated
he needed to leave town the day after Brandons death, and that he made a statement
that somebody had to punish the little bastards in reference to the incident.
We therefore find the State presented sufficient evidence
that McClellan knowingly aided and abetted Bone in the murder of her son such
that the trial judge properly denied his motion for directed verdict.
II. Sentencing
McClellan next asserts the trial court erred in sentencing
him to life without parole where the State did not provide written notice under
S.C. Code Ann. § 17-25-45. We agree.
South Carolina law provides a person who is convicted
of a most serious offense as defined by the section must be sentenced to a
term of life imprisonment without the possibility of parole if the person has
a prior conviction for a most serious offense. S.C. Code Ann. § 17-25-45(A)(1)
(2003). Aiding and abetting homicide by child abuse is a most serious offense
under South Carolina Code Ann. § 17-25-45(C)(1) (2003). Further, McClellan
had previously been convicted of carjacking, another most serious offense
under South Carolina Code Ann. § 17-25-45(C)(1) (2003). Thus, with the conviction
for aiding and abetting, McClellan was eligible for life imprisonment without
parole.
However, the statute further provides, Where the solicitor
is required to seek or determines to seek sentencing of a defendant under this
Section, written notice must be given by the solicitor to the defendant and
defendants counsel not less than ten days before trial. S.C. Code Ann. §
17-25-45(H) (2003).
Counsel objected at sentencing because the State
failed to give written notice of its intent to seek life imprisonment without
parole as required by subsection (H) of the statute. The judge held the provision
was inapplicable because the sentence was mandatory pursuant to subsection (G).
[2]
In State v. Johnson, 347 S.C. 67, 552 S.E.2d
339 (Ct. App. 2001), this court addressed the States duty to notify a defendant
of its intent to seek a life sentence without the possibility of parole under
S.C. Code Ann. § 17-25-45(A). There, we held § 17-25-45(H) clearly mandated
the solicitor provide written notice to a criminal defendant before he could
be sentenced to life imprisonment without parole.
Because it is undisputed that the Solicitor failed
to provide McClellan with written notice as required by § 17-25-45(H), the trial
court erred in sentencing him to life without parole. Accordingly, we reverse
and remand to the trial court for resentencing consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
CONNOR, ANDERSON and HUFF, JJ., concur.
[1] This
statute was amended, effective May 1, 2000, deleting reference to § 20-7-490,
which at the relevant time included the definitions of abused or neglected
child and harm under the Domestic Relations Code, and adding definitions
for child abuse or neglect and harm directly to the statute. S.C. Code
Ann. § 16-3-85 (Supp. 2001); S.C. Code Ann. § 20-7-490 (Supp. 2000).
[2] South
Carolina Code Ann. § 17-25-45(G) (2003) provides that the decision to invoke
life without parole following conviction for a serious offense under §17-25-45(B)
is in the discretion of the solicitor, while the provision for such sentencing
following a most serious offense under § 17-25-45(A) is mandatory.