State v. McCloud

579 S.E.2d 534, 354 S.C. 40, 2003 S.C. App. LEXIS 48

• Court: Court of Appeals of South Carolina
• Decided: April 14, 2003
• Docket: 3625
• Status: Published

Opinions

GOOLSBY, J.

Douglas Edward McCloud appeals his conviction for criminal domestic violence of a high and aggravated nature (CDVHAN), arguing the indictment did not enumerate the elements of the offense and was therefore insufficient to confer subject matter jurisdiction on the trial court. We affirm.

The indictment was captioned “INDICTMENT FOR CRIMINAL DOMESTIC VIOLENCE — AGGRAVATED.” The body of the indictment read as follows: “That Douglas Edward McCloud did in Fairfield County on or about June 16, 2000 commit an act of violence against Kermisha L. Golden, by striking her in [the] face with his closed fist, also hit her in [the] head and pulled her hair an[d] scratched her neck.” The indictment concluded with the standard phrase “[a]gainst the peace and dignity of the State and, contrary to the statute in such case made and provided.”

When the case was called for trial on October 26, 2000, McCloud failed to appear and was tried in his absence. The jury found him guilty, and a bench warrant was issued for his arrest. On April 19, 2001, McCloud was brought before the trial court, at which time the clerk read the sentence imposed on him.

1. McCloud first argues that the indictment was deficient because it failed to allege that the victim was a “household member.” We disagree.

South Carolina Code section 16-25-20 provides that “[i]t is unlawful to: (1) cause physical harm or injury to a person’s own household member, (2) offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.”¹ Section 16-25-10 defines “household member” as “spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.” ² Section 16-25-65(A) provides that “[t]he elements of the common law crime of assault and battery of a high and aggravated nature are incorporated in and made a part of the offense of criminal domestic violence of a high and aggravated nature when a person violates the provisions of Section 16-25-20 and the elements of assault and battery of a high and aggravated nature are present.”³

At trial, Golden testified that McCloud had been her boyfriend for six years and they had a three-year-old child together. Admittedly, however, the indictment does not allege that Golden was McCloud’s “household member” or otherwise set forth the criteria that would accord her this status. Nevertheless, we believe this deficiency did not deprive the trial court of jurisdiction to hear the case.

“An indictment is adequate if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and acquittal or conviction to be placed in bar to any subsequent conviction.”4 Moreover, these indictment sufficiency criteria “must be viewed with a practical eye; all the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached. ”⁵ “[0]ne is to look at the ‘surrounding circumstances’ that existed pre-trial, in order to determine whether a given defendant has been ‘prejudiced,’ i.e., taken by surprise and hence unable to combat the charges against him.”⁶

Here, the pretrial surrounding circumstances of this case do not warrant dismissing the indictment. Although the indictment failed to allege that Golden was McCloud’s household member or specify how she would qualify as such, there was no dispute either at trial or on appeal that she was the alleged victim in this case and had “a child in common” with McCloud.⁷ In addition, McCloud had received a preliminary hearing, a circumstance that would support the conclusion that, under the “practical eye” test, he “obviously knew the crimes for which he was being tried”⁸ and was therefore not unduly prejudiced by the alleged defect in the indictment. Moreover, the indictment contained the standard language that the offense alleged was “[ajgainst the peace and dignity of the State, and contrary to the statute in such case made and provided;” therefore, we hold it satisfied the statutory requirements to be deemed sufficient to give the trial court subject matter jurisdiction to hear the case.⁹ Finally, the caption of the indictment named the offense that McCloud was alleged to have committed, and although it was not a part of the indictment, it was “consistent with the charging language.” ¹⁰

2. We further reject McCloud’s argument that the indictment failed to specify circumstances of aggravation necessary to establish CDVHAN. Among other things, the indictment alleged that McCloud struck the victim in the face with his closed fist, hit her in the head, pulled her hair, and scratched her neck. Furthermore, the arrest warrant contained an affidavit stating the victim suffered swelling and bruising to her right eye and had to seek medical attention at the hospital. Finally, it is apparent from the indictment that there was a difference in gender between McCloud and Golden, as evidenced by the allegation that McCloud committed an act of violence against Golden “by striking her in [the] face with his closed fist” [emphasis added]. These averments in the indictment, when considered with the surrounding circumstances that had surfaced before the commencement of the trial, were sufficient to notify McCloud that he was charged with causing serious bodily injury to the victim.¹¹

AFFIRMED.

HEARN, C.J., concurs. SHULER, J., dissents in a separate opinion.

1 . S.C.Code Ann. § 16-25-20 (2003). This statute was last amended in 1994. 1994 S.C. Acts 519, § 1.

2 . S.C.Code Ann. § 16-25-10 (2003).

3 . Id. § 16-25-65(A).

4 . State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980).

5 . State v. Adams, 277 S.C. 115, 125, 283 S.E.2d 582, 588 (1981) (emphasis added), oveiruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

6 . State v. Wade, 306 S.C. 79, 86, 409 S.E.2d 780, 784 (1991).

7 . See State v. Reddick, 348 S.C. 631, 560 S.E.2d 441 (Ct.App.2002) (holding that an indictment alleging the defendant threw bodily fluids on a correctional officer but failing to specify that he was an "inmate” was sufficient to vest the trial court with subject matter jurisdiction because there was no confusion regarding his status as an inmate), cert. denied (Oct. 11, 2002).

8 . Adams, 277 S.C. at 126, 283 S.E.2d at 588.

9 . See S.C.Code Ann. § 16-25-65(C) (2003) (stating the statute creates "a statutory offense of criminal domestic violence of a high and aggravaled nature”); id. § 17-19-20 (1985) (listing the necessary criteria for an indictment to be "sufficient and good in law,” including the requirement that, "if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided”).

10 . State v. Wilkes, 353 S.C. 462, 466, 578 S.E.2d 717, 719 (2003).

11 . See State v. Wright, 349 S.C. 310, 312 n. 1, 563 S.E.2d 311, 312 n. 1 (2002) (noting that CDVHAN incorporates the elements of ABHAN, including "circumstances of aggravation,” which include "infliction of serious bodily injury” and "a difference in gender" between the defendant and the victim).