State v. Spencer

• Court: Court of Appeals of South Carolina
• Decided: June 19, 2003
• Docket: 2003-UP-419
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Demetrius R. Spencer,        Appellant.

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Appeal From Greenwood County
J. Derham Cole, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-419
Submitted April 7, 2003 – Filed June 19, 2003

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AFFIRMED

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Senior Assistant Appellate Defender Wanda H. Haile, 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 Melody J. Brown, all of Columbia; and Solicitor William Townes Jones, of Greenwood, for Respondent.

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PER CURIAM:  Demetrius R. Spencer was convicted of numerous crimes, including grand larceny of a motor vehicle and armed robbery.  Spencer appeals.  We affirm.

FACTS/PROCEDURAL HISTORY

In July, 1998, a black male, later identified as Spencer, entered a convenience store wearing white Nike shoes, jeans, and a white t-shirt.  He watched the store clerk count money, asked to use the restroom, and left.  Approximately ten minutes later, a black male entered the store wearing a nylon stocking over his head, jeans, a black, hooded sweatshirt, and white Nike shoes.  The clerk recognized the voice and the white Nike shoes as belonging to the same man, who had previously entered the store.  The robber pointed a gun at the clerk and ordered her to give him money.  The clerk filled a bank bag with approximately $3,000 in small bills and gave it to the robber, who left the store.

As he left the store, the robber encountered two store patrons.  He initially pointed the gun at them, but then lowered the gun and fired it at the ground.  The robber left the store’s parking lot on foot and headed down Haltiwanger Road toward Mallard Court.  Immediately following the robbery, a police officer’s patrol car was almost struck by a red and white Mercury Marquis being driven away from Mallard Court by a black male.  Subsequently, police officers discovered a red and white Mercury Marquis abandoned behind a nearby business.  During a search of the vehicle, officers found a small amount of cash, a dark, hooded sweatshirt, nylon hosiery and Spencer’s fingerprints on the vehicle’s stick-shift.  Officers also discovered the vehicle had been reported stolen earlier that day by a used car dealership located near the Econolodge Motel.

Following the robbery, Spencer visited a used car dealership and expressed interest in purchasing a Cadillac but indicated he wanted it titled in his sister’s name.  That afternoon, Spencer’s sister returned and purchased the Cadillac for $1,260.00, using small bills.

Police officers arrested Spencer for armed robbery.  While at the police station, Spencer made a phone call, during which an officer overheard Spencer telling someone to go by “room 269” to get his clothes and shoes.  Officers determined Spencer’s sister was registered in room 269 at the Econolodge.  Officers searched the motel room, and found Spencer’s fingerprints and a pair of white Nike shoes.  During a subsequent search of the area around Spencer’s home, police officers found the bank bag given to the robber during the robbery.

Spencer was tried and convicted of armed robbery, two counts of assault of a high and aggravated nature, grand larceny, pointing and presenting a firearm, and possession of a firearm during the commission of a violent crime.  Spencer was sentenced to 30 years imprisonment for armed robbery, 10 years imprisonment for each count of assault of a high and aggravated nature, 5 years imprisonment for grand larceny, 5 years imprisonment for pointing and presenting a firearm, and 5 years imprisonment for possession.  The sentence for armed robbery was to be served consecutively with the sentence for one count of assault of a high and aggravated nature.  The other sentences were to be served concurrently.  Spencer appeals.

LAW/ANALYSIS

On appeal, Spencer asserts the trial court erred by: 1) failing to sever the grand larceny charge from the other charges; 2) denying Spencer’s motion for a directed verdict with respect to the grand larceny charge; 3) allowing the State to introduce evidence of a conversation between Spencer and the used car dealer regarding the purchase of a Cadillac, as well as evidence of the subsequent purchase of that vehicle by Spencer’s sister; and 4) allowing the State to introduce into evidence items found during a warrantless search of the Mercury Marquis.

I.       Severance of Grand Larceny Charge

Spencer argues the trial court erred by failing to sever the grand larceny charge because it did not arise out of the same transaction as the other charges.  We disagree.

A motion to sever is addressed to the sound discretion of the trial court, and this Court will not disturb that decision absent an abuse of discretion.  State v. Tucker, 324 S.C. 155, 164, 478 S.E.2d 260, 265 (1996).  “Charges can be . . . tried together where they arise out of a single chain of circumstances, are proved by the same evidence, or are of the same general nature, and no real right of the defendant has been prejudiced.”  Id.  Moreover, “[w]hen offense are interconnected they are considered to be part of the same general nature.”  State v. Grace, 350 S.C. 19, 23, 564 S.E.2d 331, 333 (Ct. App. 2002), cert. denied (Nov. 21, 2002); see also State v. Tate, 286 S.C. 462, 464, 334 S.E.2d 289, 290 (1985) (holding a single chain of circumstances means a single course of conduct or connected transactions).

In the present case, the grand larceny, armed robbery and other charges were all committed within a short time.  These crimes were also committed in close geographic proximity to each other.  Furthermore, an eyewitness testified that approximately fifteen minutes prior to the armed robbery she saw the Mercury Marquis parked in the middle of the driveway on Mallard Court, facing outwards.  The witness further testified that a few moments after the armed robbery, she saw the vehicle driving away.  Another eyewitness testified that after the robbery, the robber ran along Haltiwanger Road toward Mallard Court.  Additionally, a police officer testified that while responding to the emergency call regarding the robbery, his patrol car was almost struck by a Mercury Marquis being driven away from Mallard Court by a black male.  Finally, police officers discovered evidence in the Mercury Marquis connecting Spencer to the armed robbery.

From the evidence presented at trial, a reasonable jury could have concluded Spencer stole the Mercury Marquis prior to the armed robbery with the intent of using it as his “get-a-way car.”  The vehicle was parked in a location and manner allowing the robber to escape quickly from the area, following the armed robbery.  Evidence of the armed robbery was obtained from inside the Mercury Marquis, thus connecting the grand larceny with the armed robbery.  Moreover, because evidence regarding Spencer’s theft of the vehicle would have been admissible in a separate trial for armed robbery to “‘furnish[] part of the context of the crime . . . [or] to complete the story of the crime . . . by proving its immediate context or the ‘res gestae’ . . . [no] reason [would exist] to fragmentize the event under inquiry.’”  State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996) (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)).  Finally, by consolidating all charges, the trial court was fostering judicial economy.  See United States v. Hines, 39 F.3d 74, 79 (4th Cir. 1994), vacated in part on other grounds by Hines v. United States, 516 U.S. 1156 (1996), cited with approval in Grace, 350 S.C. at 24, 564 S.E.2d at 333-34.

Thus, given our limited scope of review, we cannot say the trial court abused its discretion in consolidating the grand larceny charge with the other charges against Spencer.

II.      Motion for Directed Verdict

Spencer argues the trial court erred by failing to grant a directed verdict with respect to the grand larceny charge because the State failed to produce sufficient evidence establishing Spencer stole the Mercury Marquis.  We disagree.

“A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged.”  State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171 (2003).  However, “[when] reviewing a motion for directed verdict, the trial judge is concerned with the existence of the evidence, not with its weight.”  Id.  “On appeal from the denial of a motion for directed verdict, this Court must view the evidence in a light most favorable to the State[,]” State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (2000), and “determine whether there is any direct or substantial circumstantial evidence that reasonably tends to prove the defendant’s guilt or from which his guilt may be logically deduced[,]” State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000).

Just prior to the robbery, the stolen Mercury Marquis was parked on Mallard Court, facing outwards.  After robbing the store and threatening two of its patrons, the robber left the store’s parking lot and immediately ran down Haltiwanger Road toward Mallard Court.  A black male then hastily drove the stolen vehicle away from Mallard Court, almost striking a police officer’s patrol vehicle.  The vehicle was later discovered abandoned, behind a nearby business with evidence tying Spencer to the armed robbery and the stolen vehicle.

Taking this evidence in the light most favorable to the state, we find substantial circumstantial evidence exits from which a reasonable jury could logically deduce Spencer stole the Mercury Marquis prior to the armed robbery.  See Burdette, 335 S.C. at 46, 515 S.E.2d at 531; Pinckney, 339 S.C. at 349, 529 S.E.2d at 527.  Therefore, the trial court correctly refused Spencer’s motion for a directed verdict.

III.    Used Car Purchase

Spencer argues the trial court erred by allowing the State to introduce evidence of a conversation between Spencer and a used car dealer regarding the purchase of a Cadillac, as well as evidence of the subsequent purchase of vehicle by Spencer’s sister, asserting the evidence was irrelevant and prejudicial.  We disagree.

“The trial [court] is given broad discretion in ruling on questions concerning the relevancy of evidence, and [its] decision will be reversed only if there is a clear abuse of discretion.”  State v. Alexander, 303 S.C. 377, 380, 401 S.E.2d 146, 148 (1991).  Evidence is relevant if it tends to make more or less probable some matter at issue on which it directly or indirectly bears.  State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 403 (1986).  Moreover, “[a]ll that is required[, for evidence to be relevant,] is that the fact shown tends to make more or less probable some matter in issue and to bear directly or indirectly thereon. It is not required that the inference sought should necessarily follow from the fact proved.”  State v. Benjamin, 345 S.C. 470, 480 n.8, 549 S.E.2d 258, 263 n.8 (2001).  Furthermore, relevant evidence “may be excluded if its probative value is substantially outweighed by danger of unfair prejudice.”  Rule 403, SCRE; see State v. Shuler, 353 S.C. 176, ___, 577 S.E.2d 438, 442 (2003).

During trial, the court admitted, over Spencer’s objection, the following evidence: 1) the morning of the robbery, Spencer visited a used car dealership and expressed interest in purchasing a Cadillac but indicated he wanted it titled in his sister’s name; and 2) Spencer’s sister returned that afternoon and purchased the vehicle for $1,260.00, using small bills.  Spencer asserts this was error.

Contrary to Spencer’s contention, this evidence was admissible to establish Spencer’s motive for committing the robbery and to describe his attempt to cover up the crime.  Moreover, Spencer asserts this evidence was substantially more prejudicial than probative but provides us with no additional explanation.  Having thoroughly reviewed the record, we see no reason to disturb the trial court’s exercise of its broad discretion in admitting this evidence.  Alexander, 303 S.C. at 380, 401 S.E.2d at 148.

IV.    Warrantless Search

Spencer argues the trial court erred by permitting the State to introduce evidence found during a warrantless search of the Mercury Marquis.  This issue is not preserved for appellate review.

“A ruling in limine is not final; unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review.”  State v. Owens, 346 S.C. 637, 651, 552 S.E.2d 745, 753 (2001); see State v. Simpson, 325 S.C. 37, 42, 479 S.E.2d 57, 60 (1996) (holding “[u]nless an objection is made at that time the evidence is offered and a final ruling made, the issue is not preserved for review”).

Before trial, Spencer made a motion in limine, asking the trial court to exclude all evidence obtained from the warrantless search of the Mercury Marquis.  The trial court denied Spencer’s motion but specifically reserved the right to review its ruling as evidence was presented during the trial.  During the trial, the State offered into evidence items obtained during the search of the Mercury Marquis.  When the trial court asked whether there was any objection, Spencer’s counsel responded “No objection,” and the trial court admitted the items.

Although Spencer made a motion in limine prior to trial to exclude this evidence, he did not make a contemporaneous objection when the State offered the evidence during the trial.  Thus, this issue is not preserved for our review.  See Owens, 346 S.C. at 651, 552 S.E.2d at 753; Simpson, 325 S.C. at 42, 479 S.E.2d at 60.

CONCLUSION

For the foregoing reasons, Spencer’s convictions are

AFFIRMED. [1]

STILWELL, HOWARD, JJ., and STROM, Acting Judge, concur.

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[1] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.