State v. Legette

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Kurt Legette,       
Appellant.

Appeal From Dillon County

James E. Lockemy, Circuit Court Judge

Unpublished Opinion No. 2003-UP-409

Submitted April 18, 2003 - Filed June
18, 2003

AFFIRMED

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.

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 (9th 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 (6th 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.