State v. Landrum

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.

Robert L. Landrum, Appellant.

Appeal From Lexington County

 James W. Johnson, Jr., Circuit Court
Judge

Unpublished Opinion No. 2010-UP-218

Submitted January 4, 2010 – Filed March
18, 2010   

AFFIRMED

Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior
Assistant Attorney General Harold M. Coombs, Jr., Office of the Attorney
General, all of Columbia; Solicitor Donald V. Myers, of Lexington, for
Respondent.

PER
CURIAM:  Robert L. Landrum (Landrum)
appeals his conviction for assault upon a state or local correctional employee
pursuant to section 16-3-630 of the South Carolina Code (2003).  On appeal,
Landrum argues the trial court erred in refusing to charge the jury on
self-defense and simple assault.  We affirm.[1]

FACTS

At trial, Corrections
Officer Gerry L. Scott (Scott) testified that he conducted an inmate count at
the Lexington County Detention Center (Detention Center) on April 29, 2006.  In
conducting his count, Scott testified that he entered and completed a brief
inspection of Landrum's cell and that Landrum requested a gray bin.[2] 
Scott informed Landrum that a gray bin would be provided if one was available.         

Later in the day, Landrum
requested a care package, which included a toothbrush, toothpaste, deodorant,
and a comb.  Landrum was subsequently informed that a care package was
unavailable.  At this point, Landrum's tone became more forceful and aggressive. 
Scott stated Landrum then crossed the yellow line[3] and demanded a care package.  As a result of Landrum's behavior, Scott
repeatedly instructed Landrum to cross back over the yellow line.  Landrum
initially refused to comply with Scott's instruction and said, "Fuck
you." 

After this incident, Scott instructed Landrum to
return to his cell.  Landrum requested to see a supervisor, but his request was
denied. In response, Landrum refused to return to his cell, despite Scott repeatedly
ordering Landrum to report to his cell. 

When Scott and
Landrum reached the top of the stairs, Scott testified Landrum refused to go
any further, and Landrum renewed his request to see a supervisor.  Again, Scott
ordered Landrum to return to his cell.  At that point, Scott testified that
Landrum approached him in a "very quick manner, aggressive style" and
that Landrum glared at him with a locked fist and straight arms and came within
eight inches of Scott.  Based on these "attack cues," Scott performed
an open palm heel strike[4] to Landrum's chest and attempted to place Landrum in a straight arm bar
takedown.  According to Scott, a physical altercation ensued.  Landrum struck Scott
on the side of the head and Scott suffered a laceration when his head hit the
wall. 

The State called
Dr. Carl McCord (Dr. McCord), a physician at Lexington Medical Center Urgent
Care, to testify regarding the extent of Scott's injuries.  Dr. McCord stated
Scott had "a lot of blood on his face" and an "obvious injury on
his right forehead and his eyebrow" that required eighteen sutures. 

The State also
called Don Wieder (Wieder), a law enforcement training sergeant with the
Lexington County Sheriff's Office.  Wieder testified that he teaches defensive
techniques at the South Carolina Criminal Justice Academy.  After the State set
forth Wieder's qualifications, the trial court subsequently qualified Wieder as
an expert in the use of force.  Wieder testified an officer is trained to
create distance when an inmate approaches in an aggressive manner by
implementing certain techniques such as stepping back or using a defensive
counterstrike.  Based on Scott's testimony, Wieder concluded Scott's palm heel
defensive counterstrike and straight arm bar takedown were appropriate
responses to Landrum's aggressiveness.   

After the State
concluded its case-in-chief, Landrum moved for a directed verdict.  Landrum
argued the State did not meet its burden of creating a jury issue for assault
upon a state or local correctional employee, and the evidence proved he acted in
self-defense.  Also, Landrum requested a jury charge of simple assault as a
lesser included offense of section 16-3-630.  The trial court denied Landrum's
directed verdict motion and refused to charge simple assault as a lesser included
offense.  The jury convicted Landrum of assault upon a state or local
correctional employee.  This appeal followed. 

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law
only. State
v. Martucci, 380 S.C. 232, 246, 669 S.E.2d 598, 605-06 (Ct.
App. 2008).  This court is bound by the trial court's
factual findings unless they are clearly erroneous. State v. Baccus, 367
S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  This court does not reevaluate
the facts based on its own view of the preponderance of the evidence but simply
determines whether the trial judge's ruling is supported by any evidence.  State
v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct. App. 2007).

LAW/ANALYSIS

A. Self-Defense Jury Charge

Landrum argues he was entitled to a charge of
self-defense pursuant to State v. Williams, 367 S.C. 192, 624 S.E. 2d
443 (Ct. App. 2005).  We disagree. 

In Williams,
this court held that under the appropriate circumstances, an individual has the
right to utilize the amount of resistance reasonably necessary to defend
himself in the event excessive force is utilized incident to a lawful arrest.  367
S.C. at 199, 624 S.E.2d at 447.  However, to warrant a self-defense instruction,
the evidence must clearly show the accused fully complied with all requirements
placed upon citizens subject to a lawful arrest and resisted only to the extent
necessary to protect himself from serious physical harm.  Id.

We believe Landrum's
reliance on Williams is misplaced.  After a review of the record, we conclude
there is no evidence Scott utilized excessive force against Landrum.  In fact, both
Scott and Wieder's testimony indicates Scott utilized the appropriate amount of
force against Landrum. 

Next, we must
examine whether the trial court erred in refusing to charge the jury on the law
of self-defense.

A trial court is
required to charge only the current and correct law of this State.  State v.
Harris, 382 S.C. 107, 113, 674 S.E.2d 532, 535 (Ct App. 2009).  The
law to be charged to the jury is determined by the evidence presented at
trial.  State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct.
App. 2004).  If any evidence supports a jury charge, the trial court should
grant the request.  Id.  A self-defense charge is not required unless it
is supported by the evidence.  State v. Slater, 373 S.C. 66, 69,
644 S.E.2d 50, 52 (2007). 

To establish
self-defense, the law requires that (1) the defendant be without fault in
bringing on the difficulty; (2) the defendant have been in actual imminent
danger of losing his life or sustaining serious bodily injury, or he actually
believed he was in imminent danger of losing his life or sustaining serious bodily
injury; (3) the defendant 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 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 if his defense is
based upon imminent danger of losing his life or sustaining serious bodily
injury; and (4) the defendant had no other probable means of avoiding the
danger.  State v. Jackson, 384 S.C. 29, 35-36, 681 S.E.2d 17, 20 (Ct.
App. 2009).

After a careful
review of the record, we conclude the trial court did not err in refusing to
charge self-defense.  The record does not support a self-defense charge as
requested by Landrum.  The only witnesses that testified in the record were
Scott, Dr. McCord, Wieder, and Lieutenant McDaniels.  Of them, only Scott was
an eye-witness.  Scott testified Landrum was the first aggressor and repeatedly
instructed Landrum to return to his cell.  See Slater, 373 S.C. at
71, 644 S.E.2d at 53 (holding appellant was not entitled to a self-defense
charge where the record showed the defendant was the first aggressor and was,
therefore not without fault in bringing on the difficulty).  Accordingly, we
affirm the trial court's decision not to charge the jury on self-defense.

B. Lesser Included Offense

Landrum contends the trial court erred in refusing to
charge simple assault as a lesser included offense of assault upon a state or
local correctional employee.  We disagree.

In refusing to
charge simple assault as a lesser included offense of assault upon a state or
local correctional employee, the trial court reasoned the statute does not
distinguish between simple assault and aggravated assault.  However, we
conclude the Legislature specifically intended to define and target this
specific societal problem of protecting correctional employees by amending and
adding section 16-3-630 to the South Carolina Code in 1997.  See generally State v. Mitchell, 362 S.C. 289, 297, 608 S.E.2d 140, 144 (Ct. App.
2005) (overruled on other grounds) (supporting trial court's finding that
involuntary manslaughter was not a lesser included offense of homicide by child
abuse by acknowledging that the Legislature's creation of a specific statute
addressing homicide by child abuse was an effort to define and target that
specific societal problem). 

Moreover, even if
the Legislature did not intend to specifically target the offense of assault
upon a correctional officer, and simple assault is a lesser included offense,
we find no reversible error in failing to charge simple assault.   The only
evidence is that the victim was a correctional employee performing his job at
the time of the assault.  See State v. Davis, 374 S.C. 581, 585,
649 S.E.2d 132, 134 (Ct. App. 2007) (“To warrant reversal,
a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.")  Thus, we conclude the trial court did not err in
refusing to charge simple assault as a lesser included offense of assault upon
a state or local correctional employee.

CONCLUSION

Accordingly, the
trial court's decision is

AFFIRMED.

WILLIAMS, PIEPER,
and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] According to Scott's testimony, a gray bin is a
plastic storage container in which personal belongings can be stored. 

[3] The yellow line is a protective barrier for the
corrections officers.  Inmates are not allowed to cross the yellow line unless
inmates are invited to exit the pod or to conduct business. 

[4] A palm heel strike is a defensive technique designed
to stop forward momentum, create distance, and allow a person to complete
another technique.