State v. Dozier

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.

Joseph A.
Dozier, Appellant.

Appeal From Clarendon County

 Thomas W. Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No.  2008-UP-047

Submitted January 2, 2008 – Filed January
14, 2008

AFFIRMED

Deputy Chief Attorney for Capital Appeals Robert M. Dudek, South Carolina Commission on Indigent Defense, Division of Appellate Defense, 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 Cecil Kelly Jackson, Third Circuit Solicitor’s Office, of Sumter, for Respondent.

PER
CURIAM:  Joseph A. Dozier (Dozier)
appeals his conviction for armed robbery, arguing the trial court erred by (1)
refusing to charge the jury on strong armed robbery or common law robbery and
(2) deleting the element of “reasonably believed” from the jury re-charge.  We
affirm.

FACTS

On
February 28, 2005, Dozier entered a convenience store in Clarendon County under the guise of purchasing candy.  As the cashier counted his change, Dozier
displayed a handgun.  Dozier then reached into the cash register and took
approximately $120.  Surveillance cameras at the convenience store recorded the
incident.

Shortly
after an investigating officer reviewed the surveillance tape, a vehicle
matching the one on the tape was found abandoned in a nearby secluded area.  The cashier identified the abandoned vehicle as the vehicle used during the
commission of the robbery. 

Law
enforcement then canvassed the nearby area for a suspect.  After review of the
surveillance tape, law enforcement identified Dozier as a man they questioned earlier
at a nearby hotel.  However, upon return to the hotel, Dozier was no longer at
the hotel.

Law
enforcement learned Gloria Sweat (Sweat) leased the vehicle used in the
robbery.  Law enforcement contacted Sweat, and she identified Dozier in a
picture.  Sweat explained Dozier was at her house the night before the robbery. 
Sweat added that when she awoke both her car keys and car were missing.  Law
enforcement subsequently arrested Dozier, and he then admitted to robbing the
convenience store.  

          At trial, the cashier identified
Dozier as the person who robbed the convenience store and testified Dozier appeared to use a real gun during the
robbery.  At the close of evidence, the trial court
denied Dozier’s request to charge the jury on the lesser included offense of
strong armed or common law robbery.  The trial court instructed the jury on
armed robbery and possession of a weapon during the commission of a violent
crime.  After the jury began its deliberation, the foreman returned asking for
further instructions on armed robbery.  The trial court re-charged the jury on
the elements of armed robbery.  The jury found Dozier guilty of armed robbery
and possession of a weapon during a violent crime.  Dozier received a
mandatory life sentence.  This appeal follows.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review
errors of law only and is bound by the factual findings of the trial court
unless clearly erroneous.  State v. Wilson, 345 S.C. 1, 5-6, 545
S.E.2d 827, 829 (2001).  “The appellate court does not re-evaluate 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.
Mattison, 352 S.C. 577, 583, 575 S.E.2d 852, 855 (Ct. App. 2003).  If any
evidence exists in the record, this Court should affirm the trial court.  Wilson, 345 S.C. at 6, 545 S.E.2d at 829. 

LAW/ANALYSIS

I.  Jury Charge

Dozier
argues the trial court erred by refusing to charge the jury on strong armed
robbery or common law robbery.  We disagree. 

Generally, the
trial court is required to charge only the current and correct law of South Carolina.  Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462,
472-73 (2004).  “The law to be charged to the
jury is determined by the evidence presented at trial.”  State v. Brown,
362 S.C. 258, 262-63, 607 S.E.2d 93, 95 (Ct. App. 2004).  If any evidence
supports a jury charge, the trial court should grant the request.  Id. at 263, 607 S.E.2d at 95.  To warrant reversal, a trial court’s refusal to give
a requested jury charge must be both erroneous and prejudicial to the
defendant.  Id.  “[J]ury instructions should be considered as a whole,
and if as a whole they are free from error, any isolated portions which may be
misleading do not constitute reversible error.”  State v. Aleksey, 343
S.C. 20, 27, 538 S.E.2d 248, 251 (2000). 

“Upon
indictment for a greater offense, a trial court has subject matter jurisdiction
to convict a defendant for any lesser included offense.” State v. Tyndall,
336 S.C. 8, 21, 518 S.E.2d 278, 285 (Ct. App. 1999).  A lesser included offense
instruction is only required when the evidence warrants such an instruction.  Id.    It is not error to refuse to charge the lesser included offense unless evidence
exists which tends to show the defendant was guilty only of the lesser included
offense.  Id.  The trial court should refuse to charge a lesser included
offense where there is no evidence to show the defendant committed the lesser
rather than the greater offense.  State v. Tucker, 324 S.C. 155, 170, 478
S.E.2d 260, 268 (1996).  If based upon the evidence, a jury could rationally
find the defendant guilty of the lesser offense, due process requires a lesser
included offense be charged.  Tyndall, 336 S.C. at 21-22, 518 S.E.2d at
285.

 “Strong armed
robbery is defined as the felonious or unlawful taking of money, goods, or
other personal property of any value from the person of another or in his
presence by violence or by putting such person in fear.”  State v. Rosemond,
356 S.C. 426, 430, 589 S.E.2d 757, 758 (2003).  Armed robbery, on the other
hand, is proved by establishing “the
commission of a robbery and either one of the two additional elements: (1) that
the robber was armed with a deadly weapon or (2)
that the robber alleged that he or she was armed with a deadly weapon, either by action or words, while using a representation of a deadly
weapon or any object which a person present during the commission of the
robbery reasonably believed to be a deadly weapon.”  State v. Jones, 342
S.C. 248, 252-53, 536 S.E.2d 396, 398 (Ct. App. 2000) (quotations omitted).

In
view of the evidence presented in this case, the trial court did not err in
denying Dozier’s request to charge the lesser included offense of strong armed
or common law robbery.  The evidence shows Dozier entered into a convenience
store and removed money from the cash register while brandishing a gun.  Further,
the cashier testified he thought the gun was real.  Therefore no evidence tends
to show Dozier was guilty only of strong armed robbery.  The only reasonable
inference to be drawn from the totality of the evidence is Dozier committed the
offense while in possession of a deadly weapon, or at the very least, Dozier
alleged he was armed with a deadly weapon during the commission of the robbery,
and the cashier reasonably believed it to be a deadly weapon. 

Accordingly,
we find the trial court did not err by refusing to charge the jury on strong
armed or common law robbery. 

II.  Jury Re-charge

Dozier next argues the trial court erred by deleting
the element of “reasonably believed” from the re-charge to the jury of the instruction
for armed robbery.  We disagree.

“A jury charge is
correct if, when the charge is read as a whole, it contains the correct
definition and adequately covers the law.  In re McCracken, 346 S.C 87,
94, 551 S.E.2d 235, 239 (2001). 

Dozier
maintains the trial court erroneously deleted the words “reasonably believed”
from the re-charge of the law.  The record demonstrates the trial court used
the words “reasonably believed” at least three times during the re-charge of
the law.  In addition, the trial court cited relevant portions of South Carolina case law to aid the jury in understanding the elements of armed robbery.  Accordingly,
the trial court’s re-charge of the law, when read as whole, contained the
correct instruction on the elements of armed robbery.

CONCLUSION

Based on the foregoing, the decision of the trial
court is

AFFIRMED.[1]

ANDERSON, SHORT, and WILLIAMS, JJ., concur.

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