State v. Moorer

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Daniel Moorer,       
Appellant.

Appeal From Dorchester County

Diane Schafer Goodstein, Circuit Court
Judge

Unpublished Opinion No. 2004-UP-048

Submitted November 19, 2003 – Filed
January 21, 2004

AFFIRMED

Chief Attorney Daniel T. Stacey, Office of Appellate Defense,
of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief 
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles
H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, all of
Columbia;  and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.

PER CURIAM: Moorer appeals from his conviction on a first degree burglary
charge, arguing that the house he broke into was not a "dwelling” within S.C.Code
Ann. § 16-11-10 (2003). We affirm.

FACTS

Appellant Daniel Moorer broke into a house located
in St. George on  March 27, 2001. At the time, the house was empty. The owner
of the house had died, but the decedent’s daughters had used the house "three
times, four time[s] out of the year two or three weeks at a time.” In 2002,
a jury convicted Moorer of first degree burglary. The trial judge then sentenced
Moorer to fifteen years in prison.        

ISSUES    

(1)   Did the court err in denying Moorer’s
motion for directed verdict, ruling that the house was a dwelling as required for first
degree burglary?

(2)   Did the court err in limiting
Moorer’s closing concerning whether the house was a dwelling?

ANALYSIS: 

"On a motion for a directed verdict in a criminal
case, the trial court is concerned with the existence or non-existence of evidence,
not its weight.” State v. Robinson, 344 S.C. 220, 223, 543 S.E.2d 249,
250 (App. Ct. 2001). And the appellate court must interpret the evidence in
the light most favorable to the state. State v. Burdette, 335 S.C. 34,
46, 515 S.E.2d 525, 531 (1999).

A dwelling is "any house … [or] building … in which
there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges
there with a view to the protection of property. . . .” S.C.Code Ann. § 16-11-10
(2003). A house can be a dwelling even if it is empty, so long as the dweller
has the intention of returning there. State v. Ferebee, 273 S.C. 403,
405, 257 S.E.2d 154, 155 (1979). Therefore, a "[t]emporary absence from a ‘dwelling’
is irrelevant to the charge of first degree burglary.” State v. White,
349 S.C. 33, 36, 562 S.E.2d 305, 306 (2002).

At trial, there was evidence that the decedent’s
daughters came to the house three or four times year and had maintained its
water, electricity, and telephone services. They had last visited the house
about four months before the break-in. The house had not been abandoned. Taking
the evidence in the most favorable light for the state, we cannot say that the
trial judge erred when she ruled that the house was a dwelling.

Moorer also argues that he should have been allowed
to raise the dwelling issue in his closing argument. During his closing, Moorer’s
counsel said: "Mr. Moorer lived on Washington Heights. He’s familiar with this
property, lived there all his life, 57 years old. He knew nobody was living
there.” The state objected on the ground of "facts not in evidence.” A conference
ensued among the judge, the prosecutor, and the defense counsel, but the conference
was off the record. When the defense counsel continued his closing argument,
he did not object on the record to the judge’s apparent decision to sustain
the state’s objection. Therefore, the issue was not preserved for appeal. See
York v. Conway Ford, Inc., 325 S.C. 170, 173, 480 S.E.2d 726, 728 (1997)
("An objection made during an off-the-record conference which is not made part
of the record does not preserve the question for review.”).

Affirmed.

Huff, Stilwell, and Beatty, J.J., concur.