State v. Wally

Proposed Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Maurice Wally,       
Appellant.

Appeal From Beaufort County

Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2004-UP-638

Submitted December 1, 2004 – Filed December
16, 2004

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, 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 Norman Mark Rapoport, all of Columbia; and
Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.

PER CURIAM:  A Beaufort County grand jury
indicted Maurice Wally on one count of burglary in the first degree.  Following
trial, Wally was convicted and sentenced to a term of fifteen years.  On appeal,
Wally argues the trial court erred in failing to direct a verdict of not guilty
on the burglary charge because the State failed to present evidence that Wally
entered the dwelling with the intent to commit a crime therein.  We affirm.
[1]

Facts

Around 4:00
a.m. on December 6, 2001, William and Starletta Hairston were asleep in the
upstairs portion their home when they were awakened by the chirping of their
alarm system. [2]   William got
out of bed and went to check on his three boys who were sleeping in an adjacent
bedroom.  After ensuring the children were in bed, he went back to his bedroom
and retrieved a shotgun from a locked compartment behind his bed.  Starletta
turned on the bedroom lights and called the police. 

With the
shotgun in hand, Mr. Hairston rushed to the top of the stairs where he noticed
Wally moving from the interior of the house towards the front door.  William
testified he cocked the shotgun to let Wally know he “was ready,” and then ordered
him to stop in his tracks.  Wally complied and did not move.  William then asked
Wally what he was doing in the house and Wally replied, “the gate told [me]
to come in.”  William then ordered Wally to get down on the floor where he was
held at gunpoint until the police arrived and placed him under arrest. 

William testified
Wally did not have anything in his hands when this confrontation took place
and an inspection of the house the next morning revealed nothing was missing. 
William estimated Wally was in the home for a little over two minutes before
he was confronted. 

At the close of
evidence, defense counsel moved for a directed verdict asserting that Wally
did not attempt to take anything out of the home and the State failed to prove
he intended to commit a crime in the house.  The trial court denied the motion,
found Wally guilty but mentally ill, and sentenced him to fifteen years imprisonment.
[3]   

Law/Analysis

Wally’s sole argument
on appeal is “[t]he trial court erred in failing to grant a directed verdict
to the charge of burglary because the state failed to present any substantial
evidence . . . that appellant entered the dwelling with the intent to commit
a crime.”  We disagree.

“In considering
a motion for directed verdict in a criminal case, all evidence is viewed in
the light most favorable to the State.”  State v. Smith, 352 S.C. 133,
136, 572 S.E.2d 473, 474 (Ct. App. 2002).  To this end, “[t]he Court of Appeals
is concerned with the existence or non-existence of evidence, not its weight.” 
State v. Nesbitt, 346 S.C. 226, 230, 550 S.E.2d 864, 866 (Ct. App. 2001). 
As such, we can only reverse the trial court if the record contains no evidence
justifying its ruling.  State v. Douglas, 359 S.C. 187, 203, 597 S.E.2d
1, 9 (Ct. App.  2004).  Thus, an accused is entitled to a directed verdict when
the State fails to present evidence of the crime charged.  Id.

A person is guilty of first-degree burglary when
“the person enters a dwelling without consent and with intent to commit a crime
in the dwelling, and . . . (3) the entering or remaining occurs in the nighttime.” 
S.C. Code Ann. § 16-11-311 (2003).  Essentially Wally argues that because nothing
was missing from the house and none of the homeowners’ belongings were in his
possession when he was caught, there is no evidence he intended to commit a
crime in the house.

This assertion, however, is completely without
merit.  As our supreme court noted in State v. Haney, 257 S.C. 89, 91,
184 S.E.2d 344, 345 (1971), “[a]bsent an admission by the defendant, proof of
intent necessarily rests on inference from conduct.”  The court went on to explain
that “[w]hen the building entered is a dwelling house, the weight of authority
holds that the unexplained breaking and entry in the night is itself evidence
of intent to commit larceny . . . . The fundamental theory, in the absence of
evidence of other intent or explanation for breaking and entering, is that the
usual object or purpose of burglarizing a dwelling house at night is theft.” 
Id. at 91-92, 184 S.E.2d at 345.

Conclusion

Accordingly, because intent to commit a
crime—i.e., larceny—can be inferred from the breaking and entering itself, we
find there is evidence to support the trial court’s ruling.  Accordingly, we
find the trial court did not err in failing to grant Wally’s directed verdict
motion and as such, the ruling is

AFFIRMED.

HEARN, C.J., GOOLSBY, and WILLIAMS, JJ., concur.

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

[2] Mr. Hairston explained that the alarm would chirp when one of the
home’s doors or windows were opened. 

[3] At trial, defense counsel brought to the court’s attention the fact
that Wally’s mental evaluation indicated he had a family history of psychotic
illness and mental retardation.  He also noted Wally received treatment in
the past for hearing voices and a personality disorder.   Although the court
took this history into consideration and sentenced Wally accordingly, Wally’s
mental condition is not at issue in this appeal.