State v. Sturdivant

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.

Retha Sturdivant, Appellant.

Appellate Case No. 2011-196490

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2013-UP-302
Heard June 5, 2013 – Filed July 3, 2013

AFFIRMED

Stuart Mark Axelrod, of Axelrod & Associates, P.A., of
Myrtle Beach, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, and Senior
Assistant Attorney General Harold M. Coombs, Jr., all of
Columbia; and Solicitor Jimmy A. Richardson, II, of
Conway, for Respondent.
PER CURIAM: Retha Pierce Sturdivant appeals her conviction of resisting arrest
pursuant to section 16-9-320(A) of the South Carolina Code (2003). She contends
the trial court erred by failing to direct a verdict in her favor based upon the
arresting officer's lack of intent to effectuate an arrest prior to any manual
touching. She further argues the trial court should have directed a verdict in her
favor because the underlying arrest was unlawful. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:

1. As to whether the trial court erred in failing to direct a verdict on the charge of
resisting arrest based upon the police officer's lack of subjective intent to effectuate
an arrest prior to physically restraining her, we affirm: State v. Brannon, 379 S.C.
487, 494, 666 S.E.2d 272, 275 (Ct. App. 2008) ("When ruling on a motion for a
directed verdict, the trial court is concerned with the existence or nonexistence of
evidence, not its weight."); id. ("If there is any direct evidence or substantial
circumstantial evidence reasonably tending to prove the guilt of the accused, we
must find the case was properly submitted to the jury."); § 16-9-320(A) ("It is
unlawful for a person [to] knowingly and wilfully . . . resist an arrest being made
by one whom the person knows or reasonably should know is a law enforcement
officer, whether under process or not."); State v. Williams, 237 S.C. 252, 257, 116
S.E.2d 858, 860-61 (1960) ("To constitute an arrest there must be an actual or
constructive seizure or detention of the person, performed with the intention to
effect an arrest and so understood by the person detained. . . . There can be no
arrest where the person sought to be arrested [is] not conscious of any restraint of
his liberty." (internal quotations and citations omitted)); State v. Dowd, 306 S.C.
268, 270, 411 S.E.2d 428, 429 (1991) ("[A]n arrest is an ongoing process, finalized
only when the defendant is properly confined.").

2. As to whether the trial court erred in failing to direct a verdict because the
underlying arrest was unlawful, we affirm: Brannon, 379 S.C. at 494, 666 S.E.2d
at 275 ("When ruling on a motion for a directed verdict, the trial court is concerned
with the existence or nonexistence of evidence, not its weight."); id. ("When
reviewing a denial of a directed verdict, an appellate court views evidence and all
reasonable inferences in the light most favorable to the State."); id. ("If there is any
direct evidence or substantial circumstantial evidence reasonably tending to prove
the guilt of the accused, we must find the case was properly submitted to the
jury."); State v. Goodwin, 351 S.C. 105, 110, 567 S.E.2d 912, 914 (Ct. App. 2002)
("'When determining the constitutional validity of an arrest, a court must consider
whether, at the moment the arrest was made, the officers had probable cause to
make it—whether at that moment the facts and circumstances within their
knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the [appellant] had committed
. . . an offense.'" (alteration in original) (quoting State v. Robinson, 335 S.C. 620,
634, 518 S.E.2d 269, 276 (Ct. App. 1999))); id. ("'Whether probable cause exists
depends upon the totality of the circumstances surrounding the information at the
officer['s] disposal.'") (quoting Robinson, 335 S.C. at 634, 518 S.E.2d at 276);
State v. Tyndall, 336 S.C. 8, 18, 518 S.E.2d 278, 283 (Ct. App. 1999) (stating
section 16-9-320 "does not mandate the underlying arrest be prosecuted as a
prerequisite for the indictment, prosecution, or conviction of resisting arrest").

AFFIRMED.

FEW, C.J., and GEATHERS and LOCKEMY, JJ., concur.