State v. Thomas

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Bobby Shannon  Thomas,       
Appellant.

Appeal From Florence County

B. Hicks Harwell, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-219

Submitted January 10, 2003 – Filed March
20, 2003  

AFFIRMED

Assistant Appellate Defender Tara S. Taggart, of Columbia;
for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
of Columbia; for Respondents.

GOOLSBY, J.:  Bobby Shannon Thomas
pled guilty to criminal sexual conduct with a minor in the first degree, assault
and battery with intent to kill, kidnapping, two counts of unlawful conduct
towards a child, committing a lewd act on a child, and second-degree burglary.
 On appeal, Thomas alleges the trial court lacked subject matter jurisdiction
over the two charges concerning unlawful conduct towards a child and seeks to
have his convictions and sentences on those counts vacated.  He further seeks
to have his guilty pleas set aside in their entirety, arguing they were involuntary,
unknowing, and unintelligent.  We affirm. [1]

FACTS

In July 2001, the Florence County Grand
Jury indicted Thomas for criminal sexual conduct with a minor in the first degree,
assault and battery with intent to kill, kidnapping, and two counts of unlawful
conduct towards a child.  This indictment resulted from allegations that
Thomas had strapped a nine-year-old boy in a hot, unattended car while he sexually
assaulted the child’s seven-year-old sister and then later abandoned both children. 

In January 2002, the Florence County Grand
Jury issued another indictment against Thomas, charging him with first-degree
burglary and committing a lewd act on a minor.  Those charges stemmed from allegations
by his estranged wife that he had molested his stepdaughter (her daughter from
a prior relationship) from April 1, 2001, through June 19, 2001, inclusive,
and that, on June 30, 2001, after the couple had separated and the family court
had issued a protective order giving Mrs. Thomas sole possession of the marital
residence, he tried to enter the residence through a back window.

On February 2, 2002, Thomas, while accompanied
by his attorney, pled guilty as charged, with the exception of the first-degree
burglary offense, which was reduced to second-degree burglary.  After taking
his plea and hearing from counsel, an investigator, a victim’s advocate,
and Thomas’s mother, the trial court gave Thomas maximum consecutive
sentences on all charges for a total active sentence of one hundred thirty years. 

DISCUSSION

1.  We find no merit to Thomas’s argument that the trial
court lacked subject matter jurisdiction for two counts of unlawful conduct
towards a child.

With regard to the two counts of unlawful conduct
towards a child, the indictment read as follows:

That BOBBY THOMAS did in FLORENCE County on or about July
6, 2001, violate Section 20-7-50 of the Code of Laws for the State of South
Carolina (1976), as amended, in that he did, while being given charge over the
victim, . . . a seven years old child, and being responsible for her welfare
did assault her with intent to kill her and violently rape her.

That BOBBY THOMAS did in FLORENCE County on or about July
6, 2001, violate Section 20-7-50 of the Code of Laws for the State of South
Carolina (1976), as amended, in that he did, while being given charge over the
victim, . . . a nine year old child, strapped the said [victim] in a hot, unattended
car and told him to stay there, while he took his seven year old sister, . .
. into the house, assaulted her; returning then to get him out of the car and
left and abandoned him and his sister.

South Carolina Code section 20-7-50 provides
in pertinent part as follows:

(A) It is unlawful for a person who has charge or custody
of a child, or who is the parent or guardian of a child, or who is responsible
for the welfare of a child as defined in Section 20-7-490(5) to:

(1) place the child at unreasonable risk of harm
affecting the child’s life, physical or mental health, or safety;

(2) do or cause to be done unlawfully or maliciously
any bodily harm to the child so that the life or health of the child is endangered
or likely to be endangered;  or

(3) wilfully abandon the child.
[2]

Section 20-7-490, to which the above statute refers,
includes several different ways that an adult would be considered “one who is
responsible for the welfare of the child.” [3]   It is undisputed that the only
criterion that could conceivably apply to Thomas in this case would be as “an
adult who has assumed the role or responsibility of a parent or guardian for
the child, but who does not necessarily have legal custody of the child.”
[4]   The legislature qualified this definition, however, by providing that
“[a] person whose only role is as a caregiver and whose contact is only incidental
with a child, such as a babysitter or a person who has only incidental contact
but may not be a caretaker, has not assumed the role or responsibility of a
parent or guardian.” [5]

Thomas argues that, with regard to both counts
of unlawful conduct towards a child, the indictment was defective in that it
“failed to allege a legal status sufficient to support a conviction.”  He asserts
that the phrases “being given charge” and “being responsible for her welfare”
fall short of alleging he had assumed the role or responsibility of a parent
of guardian and, because the subarticle in which section 20-7-50 appears is
limited in its application to children and the people in whom their care is
entrusted on an ongoing basis and does not extend to a person whose “only role
is as a caregiver and whose contact is only incidental with a child, such as
a babysitter or a person who has only incidental contact,” the indictment did
not adequately state the offense for either count.  We disagree with this reasoning.

The South Carolina General Assembly has provided
that an indictment is sufficient if it

charges the crime substantially in the language of the common
law or of the statute prohibiting the crime or so plainly that the nature
of the offense charged may be easily understood and, if the offense be a statutory
offense, that the offense be alleged to be contrary to the statute in such case
made and provided. [6]

Furthermore, “the 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.” [7]   Moreover, “[t]he
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.” [8]   

In State v. Bermudez,
[9] the appellant argued that an indictment charging him with second-degree
criminal sexual conduct should have been quashed because the victim was his
wife and the indictment failed to allege that they were living separately and
apart pursuant to a court order.  The supreme court disagreed, stating:  “An
exception to a criminal offense must be negatived in the indictment only if
the language of the exception must be regarded as descriptive of the offense. 
If not, the exception is a matter of defense and need not be negatived in
the indictment.” [10]  
The supreme court further held the interspousal immunity exception to the criminal
sexual conduct statute was “not a part of the description of the offense of
CSC, but is a matter of defense,”
[11] and the failure to negate this exception did not warrant quashing
the indictment. 

We find the reasoning in Bermudez
applicable to the present case as well as consistent with general case law. [12]   Here, the indictment at issue alleged that
Thomas committed unlawful acts towards two children while they were in his care. 
It would have been up to him to assert that his role as their caretaker was
incidental and did not rise to the level of a parent or guardian.  We therefore
hold the trial court had jurisdiction to accept his guilty pleas to the two
counts of unlawful conduct towards a child.

2.  Thomas further seeks to set aside his guilty
plea in its entirety based on the alleged invalidity of his pleas to the two
counts involving unlawful acts towards a child.  He asserts that, because these
two counts were improperly before the trial court, his entire guilty plea was
rendered involuntary, unknowing, and unintelligent.  Because we have
held the indictment in question sufficiently stated those two counts, it follows
that those charges were properly before the trial court and could not have rendered
his pleas to the other offenses involuntary, unknowing, or unintelligent.

AFFIRMED.

HEARN, C.J., and SHULER, J., concur.

[1]   Because oral argument would not aid the court in resolving the issues
on appeal, we decide this case without oral argument pursuant to Rule 215,
SCACR.

[2]   S.C. Code Ann. § 20-7-50 (Supp. 2002) (emphasis added).  There have
been no changes in the statute since 1999.

[3]   Id.  § 20-7-490(3).  Although section 20-7-50 references
paragraph (5) of section 20-7-490, that section was rewritten in 2002 to list
the relevant criteria in paragraph (3).  2002 S.C. Acts 325, § 2.

[4]   Id.

[5]   Id.

[6]   S.C. Code Ann. § 17-19-20 (1985) (emphasis added).

[7]   State v. Tabory, 262 S.C. 136, 139, 202 S.E.2d 852, 853 (1972);
see also State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001)
(holding that, even though a murder indictment failed to allege the defendant
killed the victim with malice aforethought, specific reference in the indictment
to the pertinent code section provided the defendant with sufficient notice
of the elements of the crime with which he was charged).

[8]   Id.

[9]   297 S.C. 230, 376 S.E.2d 258 (1989).

[10]   Id. at 232, 376 S.E.2d at 258 (emphasis
added).

[11]   Id.

[12] See 41 Am. Jur. 2d Indictments and Informations §
115, at 736 (1995) (stating an indictment must negate an exception only if
“the exception is so incorporated with the substance of the statutory clause
defining the offense that it is a material part of the description of the
conduct that constitutes the offense”) (emphasis added); 42 C.J.S.
Indictments and Informations § 12, at 443-44 (1991) (stating that,
if an exception is separable from the description of the offense and is not
stated as an element of the offense, it is regarded as a matter of defense
and need not be negated in the indictment, “as where the exception merely
withdraws certain acts or persons from the operation of the statute or merely
affords a matter of excuse”).