State v. Twyman

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.

Edward Twyman, Appellant.

Appeal From Dorchester County

Diane Schafer Goodstein, Circuit Court
Judge

Unpublished Opinion No. 2012-UP-312

Submitted March 1, 2012 – Filed May 16, 2012   

REVERSED

Appellate Defender Breen Richard Stevens,
of Columbia, for Appellant.

John Benjamin Aplin, South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.

PER CURIAM:  Edward Twyman appeals the revocation of his
participation in the Department of
Probation, Parole and Pardon Services' (the Department) Community Supervision Program (CSP),
arguing the circuit court erred in finding he willfully violated a condition of
CSP by entering an exclusionary zone.  We reverse.

FACTS/PROCEDURAL HISTORY

In September 2000, Twyman was
sentenced to serve twelve years in prison after pleading guilty to
second-degree criminal sexual conduct with a minor.  In July 2010, Twyman was
released after serving eighty-five percent of his sentence.  Thereafter, Twyman
was admitted into CSP, as required by section 24-21-560(A) of the South
Carolina Code (2007).  While in CSP, Twyman was required to wear a tracking
device and to comply with the Department's Standard Sex Offender Conditions and the CSP Certificate-Conditions of Supervision.  These conditions specified that Twyman was not
permitted to "enter into, travel past, or loiter near" the victim's
residence or workplace.  Furthermore, Twyman was required to adhere to the
following conditions: "I shall
follow the advice and instructions of my agent[,] and I agree to comply with
any further conditions imposed by the Department or its Agents." 

Upon his release from prison,
Twyman moved to a boarding house in Summerville.  One month after Twyman
entered CSP, he was arrested after he entered an "exclusionary zone"
surrounding the victim's residence.  Twyman's extended family and the victim
live in the same vicinity of Ridgeville.  The tracking device alerted Twyman's Probation
Agent, Christine Debello, to Twyman's presence in the exclusionary zone.  Agent
Debello immediately issued an arrest warrant and proceeded to Twyman's
Summerville home, where she arrested him the same day.  Twyman told Agent
Debello that when the incident occurred, he was a passenger in a car driven by
his aunt's boyfriend; they had stopped at a house in the proximity of the
victim's residence.  The tracking device indicated that Twyman had entered the prohibited
area surrounding the victim's residence at 12:30 in the afternoon, and he had remained
in the area for approximately eleven minutes. 

In November 2010, Twyman
appeared before the circuit court for a CSP revocation hearing.  Twyman's
arrest warrant stated that he had violated CSP by his "failure to refrain
from having contact with the victim."  At the hearing, Agent Debello explained
that an exclusionary zone of 279.60 yards had been established around the
victim's residence.  Agent Debello testified that although she had told Twyman to
stay away from the victim's house, she had not informed him of the radius of
the exclusionary zone because "he could calculate the area and be right
outside of the zone, and possibly have contact with the victim."  Agent Debello
had instructed Twyman: "You need to stay away from the victim's house—that
area.  If your family wants to see you to help you out . . . then they need to
come to Summerville to see you." 

Agent Debello testified that she
had verified Twyman did not go to the victim's home; instead, he "was at a
house in close proximity to the victim's residence."  Although Twyman
entered the exclusionary zone, he did not attempt to visit the victim's residence
or contact the victim.  Twyman had no other CSP violations. 

Twyman's counsel argued that Twyman
knew he was not to contact the victim or go to the victim's residence. 
However, because Twyman was unaware of the exact location of the exclusionary
zone, his inadvertent entry into the area was not a "willful"
violation of CSP.  

Following the hearing, the
circuit court found Twyman had willfully violated a condition of his CSP, and it
sentenced him to serve one year in prison.  This appeal followed.

ISSUE ON APPEAL

Did the circuit court err in
finding Twyman willfully violated a condition of his CSP when he ventured into
an exclusionary zone?

LAW/ANALYSIS

Twyman contends that because
he was not aware of the precise location of the exclusionary zone, his entry
into this zone was not a "willful" violation of the terms of his CSP. 
Accordingly, Twyman asserts the circuit court abused its discretion in finding
that he willfully violated a condition of CSP.  Twyman argues that his mere
presence in the prohibited zone was insufficient to support a finding that his
entry into the zone was a "voluntary and intentional act done in
consciousness."  Conversely, the State argues the evidence supports the
circuit court's finding that Twyman willfully entered the exclusionary zone,
thereby violating a condition of CSP.  

When the Department
determines that a prisoner has committed a violation warranting revocation of
CSP, "a probation agent must initiate a proceeding in General Sessions
Court.  The proceeding must be initiated pursuant to a warrant or a citation
issued by a probation agent setting forth the violations of [CSP]."  S.C.
Code Ann. § 24-21-560(C) (2007). 

If the
court determines that a prisoner has willfully violated a term or condition of [CSP],
the court may impose any other terms or conditions considered appropriate and
may continue the prisoner on community supervision, or the court may revoke the
prisoner's community supervision and impose a sentence of up to one year for
violation of [CSP].  

Id.

"Both the decision of
whether an alleged violation was willful and the decision of whether to revoke
community supervision are discretionary.  The trial court will not be reversed
unless the appellant has shown an abuse of that discretion."  State v.
Garrard, 390 S.C. 146, 151, 700 S.E.2d 269, 272 (Ct. App. 2010). 
"Where there is any evidence to support the court's factual findings,
there is no abuse of discretion."  Id.

In Garrard, the
defendant violated a condition of his CSP when he drove within 1,000 feet of a
school zone.  Garrard testified that he was unaware that he had entered the
exclusionary zone.  Id. The circuit court found Garrard's act was not a
willful violation of CSP, and this court affirmed.  Id.  In affirming
the circuit court's ruling, this court construed the term "willfully,"
as used in section 24-21-560(C) of the South Carolina Code, as requiring the
state to prove either:

(1) a
voluntary and intentional act done with consciousness that the act is a
violation of a term of the community supervision program, or (2) the voluntary
and intentional failure to do something known to be required by a term of
community supervision.

Garrard, 390 S.C. at 150, 700 S.E.2d at 272.

We find the court's holding
in Garrard to be instructive.  Agent Debello acknowledged that Twyman
was not aware of the specific dimensions of the exclusionary zone around the
victim's residence.  The State presented no evidence to suggest that Twyman
knowingly or willfully entered the exclusionary zone, or that he made any
attempt to contact the victim.  In our view, the agent's instruction "not to
go near" the victim's residence or workplace was too vague to hold Twyman
responsible for committing "a
voluntary and intentional act done with consciousness that the act is a
violation of a term of the [CSP]."  See
id.  As a result, we hold that Twyman's mere presence in the exclusionary
zone—the boundary of which he was unaware—was insufficient to support the
revocation of CSP.

CONCLUSION

For the foregoing reasons,
the circuit court's order is

REVERSED.

PIEPER,
KONDUROS, and GEATHERS, JJ., concur.