State v. Johnson

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Russell Levon Johnson, Appellant.

Appellate Case No. 2017-002393

Appeal From Marion County
William H. Seals, Jr., Circuit Court Judge

Opinion No. 5788
Heard October 13, 2020 – Filed January 13, 2021

REVERSED AND REMANDED

Appellate Defender Lara Mary Caudy, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia; and Solicitor Edgar Lewis Clements,
III, of Florence, for Respondent.

KONDUROS, J.: Russell Levon Johnson was charged with kidnapping and first-
degree domestic violence. A jury convicted Johnson of the domestic violence
charge but acquitted him of kidnapping. Johnson appeals his conviction, arguing
the circuit court erred in admitting evidence of conduct in other jurisdictions
without instructing the jury that the domestic violence charge had to be supported
by evidence within the jurisdiction. We reverse and remand.
FACTS/PROCEDURAL BACKGROUND

Tonya Richburg and Johnson had lived together in Longs, South Carolina, for
approximately four years prior to the incident in this case. Richburg moved to
Mullins, located in Marion County, in the summer of 2016 and lived there in a
hotel for approximately a month before securing housing. Johnson went to
Richburg's home on September 15, 2016, and persuaded her to ride to the store
with him so they could talk about their relationship and his impression that she was
"moving on." A mentor to one of Richburg's children was visiting, so Richburg
told Johnson she could go with him but they could not be away too long. The
mentor called Richburg's cell phone to see when the pair would return, and
according to Richburg, Johnson took her cell phone, removed the battery, and
stated nobody would be getting in touch with her.

Johnson continued driving and told Richburg they were going to Dillon1 so he
could buy some wine and they could talk. Richburg continued telling Johnson she
needed to go home, but he kept driving, eventually stopping in a wooded area with
which Richburg was unfamiliar. The pair talked and Johnson accused Richburg of
having stolen money from him and having cheated on him. Johnson then drove to
a store and purchased a beer, and he continued driving to Clio, South Carolina,
located in Marlboro County, where he went to another wooded area. As all this
was transpiring, Johnson was drinking and using cocaine. Once they stopped in
the wooded area, Johnson went to the trunk of the car; retrieved a long, sharp,
metal object; and stabbed Richburg in the chest. He pulled her out of the car and
kicked and punched her all the while accusing her of cheating and stealing.
Finally, he took a hammer and hit Richburg in the head and stated no one would
ever find her or him. In an effort to calm him, Richburg told Johnson she would
not do anything to hurt him again. At that point, he stopped his attack and helped
Richburg back into the car.

The pair drove through Dillon at which time Johnson stopped to let Richburg use
the bathroom outside a small church. They drove back to Mullins, and Johnson
went into a store to purchase beer. Richburg stated she did not run away because
she did not know where she was, she was scared, it was dark, and she just wanted
to get home. Johnson stopped at another store and purchased a black t-shirt to hide
the blood on Richburg's clothing, and the pair finally arrived at the Imperial Motel.
Once there, Johnson told Richburg this would be her last night and he was going to

1
Dillon is located in Dillon County, which is between Marion and Marlboro
Counties.
kill himself after he killed her. Johnson retrieved rubber gloves and Windex from
his vehicle and then tried to "pop her neck." According to Richburg, Johnson was
continuing to snort a white substance and eventually fell asleep on the bed. At that
time, she ran next door and asked for help. The people next door called the police.
Richburg fled because she did not want Johnson to go to jail, but she was
intercepted by a police officer as she was walking down the side of the road.

Johnson was indicted for kidnapping and first-degree domestic violence by a
Marion County grand jury. Johnson made a motion in limine to exclude testimony
and evidence related to conduct occurring outside Marion County. The circuit
court determined the entirety of the events of that night were integral to proving
the charge of kidnapping and would be admissible. Johnson did not withdraw his
objection but added that if the evidence were admitted, he would request a charge
limiting its applicability to the kidnapping charge and not the domestic violence
charge. The court indicated it would consider how to best fashion a solution.

The trial proceeded with Richburg as the first witness. As her testimony moved
toward the events that occurred outside Marion County, Johnson objected and the
circuit court held a conference outside the presence of the jury. The circuit court
indicated it would allow the testimony but would "give a clear charge that to prove
domestic violence in this case it must come from evidence that happened in Marion
County." At the conclusion of the State's case, the circuit court changed its
position, "res[ci]nding its prior ruling." In reliance on section 17-21-20 of the
South Carolina Code,2 regarding venue in murder cases, the court determined "we
have domestic violence and kidnapping in Marion and possibly Dillon and possibly
Marlboro. So I think venue is proper here in Marion." Johnson noted he had read
the statute at issue, did not believe it was applicable, and renewed his objection.
The defense rested, the parties reviewed the charge and the verdict form, and
closing arguments proceeded. The jury acquitted Johnson of kidnapping but
convicted him of first-degree domestic violence. He was sentenced to ten years'
imprisonment. This appeal followed.3

2
Sections 17-21-10 and -20 of the South Carolina Code (2014) address proper
venue in cases when a victim is wounded in the state but dies elsewhere or is
wounded in one county and dies in another, respectively.
3
Johnson's appeal initially alleged the circuit court abused its discretion by
admitting evidence of unindicted domestic violence in counties other than Marion
County and by failing to give a jury instruction that only evidence of domestic
violence in Marion County could be considered to prove the domestic violence
charge. At oral argument, Johnson conceded the evidence of domestic violence in
LAW/ANALYSIS

Johnson contends the circuit court erred in failing to give a jury charge instructing
that only evidence of domestic violence occurring in Marion County could be used
to prove the domestic violence charge. We agree.

As an initial matter, the State maintains this issue is not preserved because Johnson
failed to object to the circuit court's jury charge when asked whether there were
any exceptions thereto. As previously described, the circuit court had ruled it
would allow testimony regarding the events in Marlboro and Dillon counties but
would "give a clear charge that to prove domestic violence in this case it must
come from evidence that happened in Marion County." However, the circuit court
rescinded its prior ruling and deemed the admission of evidence in other counties
appropriate for both charges based on section 17-21-10, thereby eliminating the
need for a limiting instruction. Johnson objected to the decision, stating,

Your Honor, I actually read these venue statutes before I
made that motion this morning. And the way I read it is
[sections] 17-21-10 and -20 . . . apply to cases where
death actually occurs. I don't think either one of those
statutes [ap]ply to this situation that we have here in this
case and so I would just renew my objection.

After this discussion, Johnson was advised of his constitutional rights relating to
his decision not to testify and the defense rested.4 The parties quickly reviewed the
circuit court's proposed charge without objection and then gave closing arguments.
The judge charged the jury and neither party took exception to the charge after it
was given.

When "a party requests a jury charge and, after opportunity for discussion, the trial
judge declines the charge, it is unnecessary, to preserve the point on appeal, to
renew the request at conclusion of the court's instructions." State v. Johnson, 333

Dillon and Marlboro was admissible as it was relevant to the kidnapping charge in
the case. Consequently, we only address the circuit court's ruling as to the jury
instruction.
4
The colloquy between Johnson and the circuit court is not contained in the record
but appears to have constituted approximately two pages of the trial transcript.
S.C. 62, 64 n.1, 508 S.E.2d 29, 30 n.1 (1998); see also Keaton ex rel. Foster v.
Greenville Hosp. Sys., 334 S.C. 488, 494-95, 514 S.E.2d 570, 573-74 (1999)
(holding a plaintiff's on the record explanation of his objection to a jury charge
along with the court's ruling on that issue was sufficient to preserve the objection).
In this case, the issue regarding the limiting instruction was clearly before the
circuit court and was finally ruled upon on the record. Furthermore, nothing had
occurred between the circuit court's final ruling and the charge that could have
affected the court's decision. Therefore, we find the State's preservation argument
unavailing.5

Turning to the merits, the case of State v. Ziegler, 274 S.C. 6, 260 S.E.2d 182
(1979), overruled on other grounds by State v. Parker, 351 S.C. 567, 571 S.E.2d
288 (2002), is controlling. In Ziegler, the victim was kidnapped in Richland
County and then transported to Fort Jackson, a federal installation. Id. at 9, 260
S.E.2d at 184. According to the evidence, the defendant stole personal property
from the victim in Richland County or possibly at Fort Jackson. Id. In any event,
the robbery continued onto the base because the victim's items were never again
under his dominion or control. Id. However, the events providing the basis for the
third charge, sexual assault, were viewed by the court as two separate and distinct
acts—one having occurred in Richland County and the other on the base. Id. at 12,
260 S.E.2d at 185. As to the sexual assault charge, the court stated:

[W]e conclude that the likelihood of prejudice as relates
to the sexual misconduct charge is sufficient to warrant a
new trial on this count. There is evidence of two separate
incidents of sexual misconduct, one on the fort property,
and one off the fort property. We cannot ascertain from
the record which of the incidents was charged in the

5
The State also maintains Johnson is arguing on appeal for the first time that the
circuit court "confused" his argument as relating to venue. The State's preservation
argument in this instance is simply without merit. The circuit court knew and
understood the nature of Johnson's objection from the beginning of trial. Once the
circuit court injected the venue statute into the discussion, Johnson renewed his
objection and stated he believed the relied-upon statutes were inapplicable to the
case. The matter on appeal was clearly before the circuit court and is preserved.
See State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001) ("In order to
preserve for review an alleged error in admitting evidence an objection should
be sufficiently specific to bring into focus the precise nature of the alleged error so
it can be reasonably understood by the trial judge.").
indictment and accepted by the jury as a basis for
conviction. Accordingly, a new trial should be held on
this count, but the kidnapping conviction and the armed
robbery conviction and the sentences are affirmed.

Id.

In this case, the circuit court originally ruled it would follow the rationale set forth
in Ziegler but would eliminate the prejudice discussed in the previous passage by
giving a limiting instruction. The circuit court then turned to the venue statutes
regarding kidnapping and murder cases; however, these sections are inapplicable.
First, Richburg did not die from her injuries. Second, Johnson never contested
venue in Marion County—he contested the admissibility of acts of domestic
violence outside Marion County.

In an effort to analogize sections 17-21-10 and -20 to the present case, the circuit
court relied upon two cases, State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976),
overruled on other grounds by State v. Evans, 307 S.C. 477, 415 S.E.2d 816
(1992), and State v. Gethers, 269 S.C. 105, 236 S.E.2d 419 (1977). In Allen, the
victim was kidnapped and murdered, and evidence in the record established she
could have been murdered in either Florence County or neighboring Darlington
County. 266 S.C. at 480, 224 S.E.2d at 885. The court concluded venue in
Florence County was proper. Id. In Gethers, the victim was kidnapped from
Charleston County, taken to Berkeley County and raped, and returned to
Charleston County. 269 S.C. at 106, 236 S.E.2d at 419. The defendant was tried
in Berkeley County for kidnapping and rape, and the court determined venue was
proper. Id. at 107, 236 S.E.2d at 419. Neither case is analogous to Johnson's. In
the present case, no evidence was presented to suggest Johnson's attack in the
woods happened anywhere other than Marlboro County. Furthermore, in Gethers,
the single instance of rape was prosecuted in the county where it occurred.

This case aligns with Ziegler wherein certain criminal acts were continuing but the
assaults were separate and distinct. Johnson attacked Richburg in the woods in
Marlboro County, stabbing her and hitting her with a hammer. Sometime later, he
attempted to "pop" her neck in Marion County—two separate acts much like the
sexual assaults in Ziegler. In sum, the circuit court erred in not giving a limiting
instruction to mitigate the prejudice to Johnson and ensure the jury found Johnson's
conduct in Marion County established his guilt on the domestic violence charge.
Nevertheless, because the charge was not given, we proceed to a harmless error
analysis. See State v. Battle, 408 S.C. 109, 121-22, 757 S.E.2d 737, 743-44 (Ct.
App. 2014) (conducting a harmless error analysis when the circuit court erred in
failing to give the requested involuntary manslaughter charge). "A harmless error
analysis is contextual and specific to the circumstances of the case." State v. Byers,
392 S.C. 438, 447, 447-48, 710 S.E.2d 55, 60 (2011). "Error is harmless when it
could not reasonably have affected the result of the trial." Id. at 448, 710 S.E.2d at
60 (quoting State v. Reeves, 301 S.C. 191, 194, 391 S.E.2d 241, 243 (1990)).

The State suggests the solicitor's own comments about the domestic violence in
other counties render the circuit court's denial of a limiting charge harmless.

In closing argument, the solicitor stated:

[W]hat I noticed is that when people go through stressful
situations, they respond by not being a hundred percent.
And what I bring to th[o]se two events that happened in
other counties up before the stabbing and beating with
the hammer, they are important not because they're
domestic violence I'm here to prosecute. I'm here to
prosecute what happened in that hotel room, but they're
here to show you why she became compliant.

The solicitor went on to describe the acts constituting domestic violence in this
case.

In her own words, and [Richburg] told you he put his
arms around her neck like this and he tried to pop it.
Well, you can see not only is he larger, but he's
physically stronger I believe when the optics tell us all
and he tried to pop my neck. So how do we know that he
intended to cause bodily injury at that time? Well, what
else do the photograph[s tell] us[?] She told us that he
walked in with some gloves and a bottle of Windex.
Now, I seriously doubt that he brought those gloves in
because he was going to work on her wounds.

While these comments demonstrate the solicitor's own understanding about the
limitations on the evidence in this case, these comments are insufficient to render
the lack of a clear and unequivocal limiting instruction from the circuit court
harmless error. The jury heard testimony about Johnson stabbing Richburg and
hitting her in the head with a hammer. They saw photographs of Richburg after
the attack, bloody and battered, and they saw photographs of the bloody hotel
room. The evidence in the case that clearly established domestic violence relates
to the abuse in Marlboro County. The evidence of domestic violence in Marion
County is significantly weaker, and we cannot be certain the jury did not consider
the precluded evidence in reaching its decision. Therefore, the ruling of the circuit
court denying the limiting instruction constitutes reversible error and Johnson's
conviction for first-degree domestic violence is

REVERSED AND REMANDED.

LOCKEMY, C.J., and MCDONALD, J., concur.