State v. Johnson

12316

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The
State,        Respondent,

v.

Ravin L.
Johnson,        Appellant.

Appeal From Chester County

Paul E. Short, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-280

Submitted April 6, 2004 – Filed April 26, 2004

AFFIRMED

Teresa L. Norris, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
and Solicitor John R. Justice, of Chester, for Respondent.

PER CURIAM:  Ravin L. Johnson (“Appellant”)
appeals his conviction for voluntary manslaughter.  Appellant argues the trial
judge erred in failing to grant a directed verdict.  He contends the evidence
offered by the State was insufficient to disprove self-defense as a matter of
law.  We affirm.

FACTS

On November 3, 2000, Appellant left his home in
West Columbia and drove to Chester to pick up his cousins, Ezekiel Darnell and
Mario Johnson.  The purpose of the trip was to bring Mario and Ezekiel back
to Columbia because Appellant and Mario worked together and both were due at
work the next day.

Upon arrival in Chester, Appellant went
to Brian Jackson’s house.  There he met Brian, his brother, two of their friends,
Mario and Ezekiel.  Shortly thereafter, Appellant, Ezekiel, and Brian decided
to go to a party on Cemetery Street to visit Brandon Johnson, another of Appellant’s
cousins.  Ezekiel and Appellant rode in Mario’s car, Mario drove Appellant’s
truck, and Brian drove his own car.

Appellant and Ezekiel stayed at the party
for approximately fifteen minutes before deciding to leave and drive back to
Columbia.  Mario drove off first in Appellant’s truck, followed closely by Appellant
and Ezekiel in Mario’s car. [1]  
Appellant was driving and Ezekiel was riding in the passenger seat.  As Appellant
and Ezekiel turned onto Cemetery Street, they noticed Danielle Hughes and Jonathan
Mackey walking across the street.   Ezekiel erroneously thought he knew Hughes
and, as a result, said something to her as they were passing by.  

Ezekiel noticed that Mackey responded,
but he could not make out exactly what had been said because music was playing
loudly in the car.  Ezekiel then asked Appellant to back up.  After backing
up, it became apparent to Appellant and Ezekiel that Mackey was angry with them.
  Mackey then pulled a .38 caliber handgun from his pocket and began firing
at the car.   One of the bullets shattered the back window of the car and lodged
in the rear seat.

Both Ezekiel and Appellant ducked when
the shooting began.  Appellant attempted to shake Ezekiel, but did not get a
response.   Ezekiel testified that he became hysterical and panicked.  Unable
to get a response from Ezekiel, Appellant reached under his seat and obtained
the gun he had taken from his own car earlier in the evening.   Appellant opened
his door and fired a single shot at Mackey.  The bullet penetrated Mackey’s
cheek where it lacerated the base of the brain and spinal cord.  Mackey died
in less than a minute.                      

Appellant then shut his door, pushed Ezekiel
up, and drove to his uncle’s house where he attempted to contact his father. 
Eventually, Appellant and Ezekiel went back to Columbia.  The next morning,
accompanied by Appellant’s mother, father, and uncle, both Appellant and Ezekiel
went to the Chester Police Department where they related the previous evening’s
events and turned over Appellant’s handgun.

A Chester County grand jury indicted Appellant
for murder.  Appellant did not testify at trial.  At the close of the evidence,
Appellant’s counsel moved for a directed verdict on the murder charge.  Counsel
asserted there was no evidence of “malice aforethought” given the evidence established
that Mackey fired the first shot.   However, he stated “there might be evidence
to sustain a conviction on the lesser included offense of voluntary manslaughter.” 
Throughout this discussion, defense counsel asserted the theory of self-defense. 
After hearing arguments from counsel, the judge directed a verdict as to the
murder charge, finding there was no evidence tending to show malice aforethought. 
The judge then informed counsel that he would charge the jury on voluntary manslaughter.

The jury convicted Appellant of voluntary manslaughter.  
After the verdict was read, defense counsel moved for a new trial on the ground
the evidence was insufficient as a matter of law as to the charge of voluntary
manslaughter.  The judge denied the motion.  He then sentenced Appellant to
fifteen years imprisonment.  This appeal follows.

DISCUSSION

Appellant argues the trial judge erred in failing
to direct a verdict as to the voluntary manslaughter charge, as the evidence
offered by the State was insufficient as a matter of law to disprove self-defense.

In criminal cases, “[a] defendant is entitled to
a directed verdict when the State fails to produce evidence of the offense charged.” 
State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001).  “In reviewing
a motion for directed verdict, the trial judge is concerned with the existence
of the evidence, not with its weight.”  Id.  “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. McGowan, 347 S.C. 618, 622, 557 S.E.2d
657, 659 (2001).   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.  Id. 

At trial, Appellant argued that he shot Mackey
in self-defense.  In order for a defendant to establish self-defense, the following
four elements must exist:

(1) the defendant must be without fault in bringing on the difficulty; (2) the
defendant must have been in actual imminent danger of losing his life or sustaining
serious bodily injury, or he must have actually believed he was in imminent
danger of losing his life or sustaining serious bodily injury; (3) if his defense
is based upon his belief of imminent danger, defendant must show that a reasonably
prudent person of ordinary firmness and courage would have entertained the belief
that he was actually in imminent danger and that the circumstances were such
as would warrant a person of ordinary prudence, firmness, and courage to strike
the fatal blow in order to save himself from serious bodily harm or the loss
of his life; and (4) the defendant had no other probable means of avoiding the
danger.

State v. Day, 341 S.C. 410, 416, 535 S.E.2d 431, 434
(2000). 

The defendant has the burden of raising self-defense. 
However, once raised, the State has the burden of disproving it beyond a reasonable
doubt.  State v. Wiggins, 330 S.C. 538, 544, 500 S.E.2d 489, 492 (1998). 
Significantly, in this case, the parties only dispute the existence of the first
and fourth elements.       

Initially, we note this issue was not properly
raised at trial.  During the discussion regarding Appellant’s motion for a directed
verdict on the murder charge, counsel agreed there was evidence to support a
voluntary manslaughter charge.  Thus, no motion was ever made to direct a verdict
as to the voluntary manslaughter charge.  Although after the jury verdict had
been returned, defense counsel made a motion asking the court to “strike the
verdict and to find as a matter of law the defendant not guilty of voluntary
manslaughter due to the insufficiency of the evidence,” this does not preserve
the issue presented by Appellant in this appeal.   In a criminal case, the only
way to contest the sufficiency of the evidence post-trial is to move for a new
trial.  State v. Follin, 352 S.C. 235, 258, 573 S.E.2d 812, 824 (Ct.
App. 2002), cert. denied (May 30, 2003).  In addition, because Appellant
did not raise the issue of insufficiency of the evidence as to self-defense
in the court below, it cannot be raised for the first time on appeal.  See
State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989) (holding that
a party cannot raise one ground for directed verdict to the court below and
another on appeal).  Therefore, we find the issue presented by appellant was
not properly preserved for our review.

In the alternative, Appellant argues the trial judge erred
in failing to grant judgment notwithstanding the verdict (JNOV).   However,
JNOV motions are civil in nature and are not appropriate in criminal trials. 
See Follin, 352 S.C. at 258, 573 S.E.2d at 824 (“A motion for
JNOV is a civil trial motion, and thus it is improper for a party to move for
JNOV in a criminal trial . . . In criminal matters, a motion for a new trial
is the ‘only available post-trial motion addressing the sufficiency of the evidence.’”
(quoting State v. Miller, 287 S.C. 280, 282, 337 S.E.2d 883, 884 (1985)))
(citations omitted).  Therefore, we need not address this issue.      

In any event, Appellant’s argument fails on the merits as
well.  Viewing the evidence in the light most favorable to the State, we find
there was sufficient evidence to present to the jury the question of whether
Appellant was acting in self-defense or was guilty of voluntary manslaughter.
As to the first and fourth elements of self-defense, the State presented evidence
that Appellant stopped his car and then backed up in order to hear Mackey’s
response to Ezekiel’s comments.  At one point in his statement, Appellant indicated
that he reached under his seat for his gun and then fired at Mackey.  Appellant
then “got in the car and left.”  The pathologist also testified that the gunshot
that killed Mackey was fired at some distance.  Furthermore, the evidence indicates
that Appellant had an opportunity to flee the scene given he was driving his
car and Mackey was standing in the road.  This evidence and sequence of events
reasonably tended to prove that Appellant was not acting in self-defense and
was guilty of voluntary manslaughter.  Therefore, the judge properly presented
the case to the jury.  See Wiggins, 330 S.C. at 545, 500 S.E.2d
at 493 (“‘Reversal of a conviction because of the trial court’s refusing to
give a directed verdict on the ground of self-defense is rare.’” (quoting William
S. McAninch & W. Gaston Fairey, The Criminal Law of South Carolina
483 (3d ed. 1996) (Supp. 1997 at 77))).

Accordingly, Appellant’s conviction and sentence are

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON,
AJ., concur.  

[1] Prior to switching cars with Mario, Appellant removed his handgun
from his own car and placed it in Mario’s car.  Ezekiel testified that Appellant
did this so that Mario would not get in trouble should he be stopped by the
police while driving Appellant’s car.