State v. Wilbur Rickmon

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Wilbur A. Rickmon, Appellant.

Appellate Case No. 2015-000989

Appeal From Oconee County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2018-UP-053
Submitted October 2, 2017 – Filed January 31, 2018

AFFIRMED

Carol Anne Johnson, of Carol Johnson Law Firm, P.A.,
dba Special Needs Legal Advocacy, of Seneca, and Chief
Appellate Defender Robert Michael Dudek, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia; and Solicitor Christina Theos Adams, of
Anderson, for Respondent.
PER CURIAM: Wilbur A. Rickmon appeals his convictions and sentences for
first-degree criminal sexual conduct (CSC) and kidnapping, arguing the trial court
erred in: (1) failing to grant a directed verdict on the indictment of first degree CSC
and (2) failing to grant a directed verdict because the kidnapping indictment failed
to sufficiently notify him of the charges. We affirm.

I.

Rickmon and Victim lived in the same neighborhood, two trailers from each other.
On or about September 27, 2013, Rickmon called Victim, who was then age 17,
asking her to come to his trailer and help him fill out his unemployment forms.

When Victim entered Rickmon's trailer, Rickmon locked both the top and bottom
locks on the door. Victim attempted to help Rickmon with his unemployment forms,
but could not log onto the Internet. Rickmon asked Victim to follow him into his
bedroom, so they could inspect the router.1 Victim told police that once she was
inside Rickmon's bedroom, "he shut the door and locked it."

On three different occasions that evening, Victim recounted to police and medical
personnel what happened after she entered Rickmon's bedroom. In her first two
statements, Victim said, "[Rickmon] . . . took off my pants, underwear and threw me
onto the bed. He climbed on top of me and started having sex with me" and that
"[Rickmon] grabbed my arm . . . [t]ook down my pants and underwear, threw me on
the bed and started to rape me." In a third statement, Victim said, "He grabbed my
left arm. He said he would give me $50 to have sex. I said no. He took my shoe
off, he undid my belt, [and] pulled my pants off." At trial, Victim testified that
Rickmon "ripped off her pants."

After the sexual assault, Victim put back on her pants and left Rickmon's trailer. She
went straight home and told her mother what happened. Victim's mother
immediately called 911.

Rickmon was subsequently charged with first-degree CSC and kidnapping. The
indictment alleged:

Wilbur A. Rickmon did in Oconee County, on or about . . .
September 27, 2013, unlawfully seize, confine, inveigle,

1
At trial, Rickmon's girlfriend testified there was no wi-fi equipment, boxes, or
routers in the bedroom because the trailer did not have internet access.
decoy or kidnap, [Victim] by any means whatsoever,
without the authority of law, to wit: defendant did confine
victim to a room in his home, physically restrained her
during a sexual assault. This is in violation of § 16-3-
[0]910 of the South Carolina Code of Laws (1976) as
amended.

At the close of the evidence, the trial court instructed the jury on the elements of
kidnapping:

The State must prove beyond a reasonable doubt that the
defendant knowingly and unlawfully seized, confined,
inveigled, decoyed, kidnapped, abducted, or carried away
another person without authority of law.

The jury convicted Rickmon on both indictments, and he was sentenced to two terms
of life without possibility of parole.

II.

Rickmon first argues he was entitled to a directed verdict because the State presented
insufficient evidence of aggravated force on the first degree CSC charge. We
disagree.

Under section 16-3-652(1) of the South Carolina Code (Supp. 2017):

A person is guilty of [CSC] in the first degree if the actor engages
in sexual battery with the victim and if any one or more of the
following circumstances are proven:

(a) The actor uses aggravated force to accomplish sexual
battery.

(b) The victim submits to sexual battery by the actor under
circumstances where the victim is also the victim of
forcible confinement, kidnapping, trafficking in
persons, robbery, extortion, burglary, housebreaking,
or any other similar offense or act.
Victim testified Rickmon "grabbed [her] arm, [her] left arm, and threw [her] onto
the bed and ripped off [her] pants." She indicated in multiple statements, which were
read to the jury during cross-examination, that Rickmon "threw" her onto the bed,
"climbed on top of [her]," and "raped" her. Victim also stated Rickmon "grabbed
[her] arm and threw [her] onto the bed, undid [her] belt, took off [her] pants, and
[her] shoe came off with it." Viewing this evidence in the light most favorable to
the State, we find the statements and testimony of Victim constituted sufficient
evidence of the use of aggravated force by Rickmon to commit the sexual assault.
See Rule 19, SCRCrimP; State v. Creech, 314 S.C. 76, 82, 441 S.E.2d 635, 638 (Ct.
App. 1993) ("In reviewing the refusal to grant a directed verdict, the evidence is
viewed in the light most favorable to the State. . . ."); see also State v. Lindsay, 355
S.C. 15, 21, 583 S.E.2d 740, 743 (2003) (affirming the trial court's denial of the
appellant's directed verdict motion because the victim's testimony was sufficient
evidence of aggravated force). Thus, the case was properly submitted to the jury.
State v. Schrock, 283 S.C. 129, 132, 322 S.E.2d 450, 452 (1984) (stating if the State
presents any evidence which reasonably tends to prove the defendant's guilt, or from
which the defendant's guilt can be fairly and logically deduced, the case must go to
the jury).

The evidence also established the sexual battery was accomplished by Victim
submitting to Rickmon under circumstances where Victim was also the victim of
forcible confinement, kidnapping, trafficking in persons, robbery, extortion,
burglary, housebreaking, or any other similar offense or act. See S.C. Code Ann. §
16-3-652(1)(b). Victim testified she entered Rickmon's home through the back door
and, upon entering, Rickmon shut and locked the door. Later, Rickmon lured Victim
into his bedroom under the guise of examining the router. Once they entered the
bedroom, Rickmon closed the door and appeared to lock Victim in the room with
him. Victim further indicated "she thought the bedroom door was locked because it
had no knob. All it was was a lock." She also testified that once the sexual assault
was over, she had to "unlock all the locks to get out."

This testimony was direct evidence of both subsection 16-3-652(1)(a) and subsection
16-3-652(1)(b), and the trial court did not err in denying Rickmon's directed verdict
motion. See State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000)
(stating if there is any direct evidence or 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).

III.
Rickmon next argues he was entitled to a directed verdict because the trial court's
jury instruction impermissibly enlarged and amended the charge of the indictment's
"to wit" clause. Specifically, Rickmon claims the "to wit" clause narrowed the
indictment's scope to the charge Rickmon "confine[d] [V]ictim to a room in his home
[and] physically restrained her during a sexual assault." Thus, Rickmon contends
the trial court later erroneously instructed the jury it could convict him if the jury
found "[t]he State . . . prove[d] beyond a reasonable doubt that [Rickmon] knowingly
and unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried
away another person without authority of law." (emphasis added).

"The primary purposes of an indictment are to put the
defendant on notice of what he is called upon to answer,
i.e., to apprise him of the elements of the offense and to
allow him to decide whether to plead guilty or stand trial,
and to enable the [trial] court to know what judgment to
pronounce if the defendant is convicted."

Evans v. State, 363 S.C. 495, 508, 611 S.E.2d 510, 517 (2005). The sufficiency of
an indictment is determined by two criteria: (1) whether "the offense is stated with
sufficient certainty and particularity to enable the court to know what judgement to
pronounce, and the defendant to know what he is called upon to answer and whether
he may plead an acquittal or conviction thereon;" and (2) whether the indictment
"apprises the defendant of the elements of the offense that is intended to be charged."
State v. Gentry, 363 S.C. 93, 102–03, 610 S.E.2d 494, 500 (2005).

Rickmon claims the "to wit" clause did not put him on notice of the kidnapping
offense charged in the trial court's instructions. We disagree. Here, the "to wit"
clause merely described the "particulars of how a defendant effected the crime,"
informing Rickmon of how the State intended to prove the elements of kidnapping.
U.S. v. D'Amelio, 683 F.3d 412, 418 (2nd Cir. 2012). Also, the trial court's
instructions mirrored the indictment's language, and the indictment copied the
language of South Carolina's kidnapping statute. See S.C. Code Ann. § 16-3-910
(2015) (defining kidnapping by providing: "Whoever shall unlawfully seize,
confine, inveigle, decoy, kidnap, abduct or carry away any other person by any
means whatsoever without authority of law, except when a minor is seized or taken
by his parent, is guilty of a felony"). Thus, the trial court's instructions did not
enlarge the indictment beyond the kidnapping charge. Cf. Bailey v. State, 392 S.C.
422, 436, 709 S.E.2d 671, 678 (2011) (finding the trial court's instructions
improperly enlarged the indictment by adding a "neglect" component which
exceeded the original scope of the indictment).
Therefore, we find the indictment put Rickmon on notice that he was charged with
kidnapping, of the elements of kidnapping, and of the State's theory of how Rickmon
committed the kidnapping. See State v. Tabory, 262 S.C. 136, 139, 202 S.E.2d 852,
853 (1974) ("[T]he true test of the sufficiency of an indictment is whether it contains
the necessary elements of the offense intended to be charged and sufficiently
appraises the defendant of what he must be prepared to meet. The offense intended
to be charged must be described with sufficient particularity that conviction or
acquittal thereupon may be pleaded in bar to any subsequent prosecution."). The
jury convicted Rickmon of kidnapping based on evidence he confined Victim in his
room. See Bailey, 392 S.C. at 433, 709 S.E.2d at 677 ("In South Carolina, '[i]t is a
rule of universal observance in administering the criminal law that a defendant must
be convicted, if convicted at all, of the particular offense charged in the bill of
indictment.'" (quoting State v. Gunn, 313 S.C. 124, 136, 437 S.E.2d 75, 82 (1993)).

Accordingly, we find the trial court's jury charge did not constructively amend or
impermissibly enlarge the indictment and put Rickmon on notice of the kidnapping
charge he was called upon to answer.

AFFIRMED.2

LOCKEMY, C.J., and HUFF and HILL, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.