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THE STATE v. JONES


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THE STATE

v.

JONES


 

THE STATE OF SOUTH CAROLINA

In The Supreme Court

________

The State,

Respondent, v.

Nakia Jones,

Appellant. ________

Appeal From Richland County

H. Dean Hall, Circuit Court Judge

________

Opinion No. 25257

Heard January 11, 2001 – Filed March 12, 2001

________

AFFIRMED

________

Senior Assistant Appellate Defender Wanda H. Haile, of South
Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General
Robert E. Bogan, and Assistant Attorney General Melody J. Brown,
all of Columbia, and Solicitor Warren B. Giese, of Columbia, for
respondent.

________

JUSTICE WALLER: Jones was convicted of three
counts of armed robbery, and possession of a firearm during the
commission of a violent crime; he was sentenced to life
imprisonment without parole pursuant to S.C. Code Ann. ?
17-25-45 (Supp. 2000), commonly known as the
"Two-Strikes" law.[1] We affirm.

FACTS

At 3:30 AM on the morning of June 29, 1997, the three victims
in this case, Dwayne Wright, Theodore Wheeler and Ricardo
Wheeler, were robbed at gunpoint by an unknown assailant.

In late July 1997, approximately three and one-half weeks
after the robbery, police showed each victim, independently, a
photographic line-up of six individuals; all three victims
identified Jones as the person who robbed them. Jones was
arrested and charged with three counts of armed robbery,
possession of a firearm during commission of a violent crime, and
failure to stop for a blue light. He was convicted of the armed
robbery and possession of a firearm counts; he was found not
guilty of failing to stop for a blue light. He was sentenced to
life imprisonment without parole under S.C. Code Ann. ? 17-25-45
(Supp. 2000), the Two-Strikes law, due to his prior conviction of
a "most serious" offense.[2])

ISSUES

1. Was Jones properly tried for three counts of armed robbery?

2. Is a sentence of life imprisonment without parole after
commission of one "most serious" offense
constitutionally permissible?

3. Did the court err in refusing a Telfaire [3]
charge?

1. THREE COUNTS OF ARMED ROBBERY

Jones was separately indicted for the armed robbery of each
victim. He contends, citing State v. Waller, 280 S.C. 300,
312 S.E.2d 552 (1984), the three counts should have been
"rolled into a single count" as the goods were taken
from three victims simultaneously. Waller does not control
the present case.

In Waller, the defendant broke into an apartment
occupied by three roommates and stole property belonging to each.
The solicitor decided to aggregate the value of the items taken
and charge Waller with grand larceny. On appeal, Waller contended
the value of property taken from more than one owner could not be
aggregated so as to sustain a conviction for grand larceny. This
Court affirmed Waller’s conviction under prior case law which
suggested a prosecutor could elect to prosecute for one larceny
or several larcenies. However, the Waller Court decided to
follow the majority of cases which hold the larceny of property
from different owners at the same time and place constitutes one
larceny. The Court held, "henceforth, the larceny of
property from different owners at the same time and at the same
place shall be prosecuted only as a single larceny." 280
S.C. at 301, 312 S.E.2d at 553. [4]

Waller is inapplicable here.

The rationale for the single larceny rule is that "the
act of taking is one continuous act or transaction, and since the
gist of the offense is the felonious taking of property,
the legal quality of the act is not affected by the fact that the
property stolen belonged to different persons." D.H. White, Single
or Separate Larceny Predicated Upon Stealing Property From
Different Owners at the Same Time
, 37 A.L.R.3d 1407, 1410 ?
2 (1971) (emphasis supplied). Larceny is the misdemeanor offense
of taking or carrying away of goods valued at less than $1000. [5]

The fundamental distinction between larceny and armed robbery,
in our view, lies in the fact that armed robbery is a crime of
violence. See S.C. Code Ann. ? 16-1-60 (Supp. 2000).
Although armed robbery is contained in Chapter 11 to Title 16
(Offenses Against Property), the fact that it is a crime of
violence makes it more of an offense against the person, thereby
warranting its treatment as a separate offense as to each person
who was threatened with bodily harm by a deadly weapon. See 
State v. Mahaley, 470 S.E.2d 549, 551 (N.C. App. 1996), citing
77 CJS Robbery ? 2 (1994) (while robbery can be
classified as an offense against both person and property, it is
primarily an offense against the person); State v. Harris,
175 S.E.2d 334, 336 (N.C. App. 1970) (gist of armed robbery is
not the taking of personal property, but a taking or attempted
taking by force or putting in fear by the use of firearms or
other dangerous weapon); People v. Jones, 576 N.E.2d 1138
(Ill. App. 1991), rev’d on other grounds 595 N.E.2d
1071(1992) (notwithstanding armed robbery is captioned as a
"Crime Against Property," it is a forcible felony
carried out against a person).

A case directly on point is State v. Gratz, 461 P.2d
829 (Or. 1969), in which the Oregon Supreme Court addressed a
contention identical to Jones’:

The defendant relies upon State v. Clark, 46 Or. 140,
80 P. 101, wherein this court held that the stealing of several
articles belonging to more than one person at the same time and
place by one act constitutes but a single offense. This holding
is in accord with the weight of authority and is based on the
reasoning that, since there was but one overt act (the theft), a
rule to the contrary would lead to incongruous and inhumane
results. Anno. 28 A.L.R.2d 1187, s 3.

However, in the cases dealing with armed robbery, where the
gravamen of the offense is an assault upon and a theft from the
person, ORS 163.280, the courts hold that each assault and theft
from a different person, although occurring at the same time and
place, is a separate crime. . . .

With few exceptions, not here pertinent, in crimes against the
person when contrasted with crimes against property there are as
many offenses as individuals affected. And, while it may be said
that in armed robbery a single act may put several persons in
fear, yet, in order to consummate the crime, that act must be
followed by the act of taking from each person money or personal
goods.

461 P.2d at 830 (internal citations omitted). See also
Commonwealth v. Levia, 431 N.E.2d 928 (Mass. 1982)
(although successive larcenies from multiple victims must be
charged and punished as a single larceny if part of a single
larcenous scheme, where crimes of violence are committed against
several victims, multiple charges and punishments are
appropriate); Sullivan v. Commonwealth, 433 S.E.2d 508
(Va. 1993) (essential character of common-law robbery is violence
against a person for purpose of theft such that appropriate unit
of prosecution is determined by number of persons from whose
possession property is taken by force or intimidation); Camacho
v. State
, 825 S.W.2d 168 (Tex. 1992) (what separates robbery
from theft is the human element).

In accordance with the above-cited cases, we hold that, where
there is a threat of bodily injury to each person from whom
property is stolen,[6]
the defendant may be charged with separate offenses. See 
Joseph T. Bockrath, Prosecution for Robbery of One Person As a
Bar to Subsequent Prosecution for Robbery of Another Person
Committed at the Same Time
, 51 A.L.R.3d 693, ? 2 (1973)
(noting that ordinarily, where several persons are robbed at the
same time, the offender may be indicted and convicted for the
robbery of each person as a distinct offense). Accordingly, Jones
was properly charged with three separate counts of armed robbery.

2. CONSTITUTIONALITY OF TWO-STRIKES LAW

Jones contends S.C. Code Ann. ? 17-25-45 (Supp. 2000), the
"Two-Strikes" law under which he was sentenced, is
unconstitutional. He asserts sentencing under the statute 1)
violates separation of powers, [7] 2) constitutes
cruel and unusual punishment,[8] 3) results in an equal protection violation,[9] 4) shifts the
burden to the defendant to prove the constitutionality of the
statute, and 5) constitutes an ex post facto violation.[10]
We disagree.

Initially, this Court held in State v. Burdette, 335
S.C. 34, 515 S.E.2d 525 (1999), that Section 17-25-45 does not
violate the separation of powers doctrine. We stated,
"[u]nder the mandatory sentencing guidelines, the prosecutor
can still choose not to pursue the triggering offenses or to plea
the charges down to non-triggering offenses. Choosing which crime
to charge a defendant with is the essence of prosecutorial
discretion, not choosing which sentence the court shall impose
upon conviction." 335 S.C. at 40-41, 515 S.E.2d at 528-529.
Further, we found the matter of sentencing if convicted of a
triggering offense to be a matter within the province of the
legislature. Id. Accordingly, under Burdette,
Jones’ sentences pose no separation of powers problem.

Jones next asserts his life sentence constitutes cruel and
unusual punishment. We disagree.

The cruel and unusual punishment clause requires the duration
of a sentence not be grossly out of proportion with the severity
of the crime. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,
77 L.Ed.2d 637 (1983). Pursuant to Solem, this Court
reviews three factors in assessing proportionality: (1) the
gravity of the offense compared to the harshness of the penalty;
(2) sentences imposed on other criminals in the same
jurisdiction; and (3) sentences for the same crime in other
jurisdictions. State v. Kiser, 288 S.C. 441, 343 S.E.2d
292 (1986).[11]

Initially, we agree with the Court of Appeals that given the
"most serious" nature of armed robbery, when coupled
with a prior most serious offense, the gravity of the offense is
not disproportionate to a sentence of life without parole. See also
U.S. v. D’Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994) (life
imprisonment without parole for drug conspiracy, possession, and
distribution offenses not cruel and unusual); Smallwood v.
Johnson
, 73 F.3d 1343, 1346-47 (5th Cir. 1996) (50 year
sentence for misdemeanor theft, made felony by recidivist
statute, not grossly disproportionate); U.S. v. Hill, 30
F.3d 48, 50-51 (6th Cir. 1994) (mandatory life imprisonment
without parole upon third felony drug conviction not grossly
disproportionate); Simmons v. Iowa, 28 F.3d 1478, 1482-83
(8th Cir. 1994) (mandatory life imprisonment without parole for
aiding and abetting restraint and torture of child not grossly
disproportionate).

Further, we find Jones’ sentence proportionate to the
sentences imposed on other criminals in this state. Jones’
sentence of life without possibility of parole for his second
conviction of a "most serious" offense is the same as
that imposed on any other criminal with a second conviction of a
"most serious" offense, such that it is not
disproportionate to the sentences imposed on other South
Carolinians.

Finally, as to sentencing in other jurisdictions for the same
crime, life sentences for armed robbery under recidivist laws are
not unique to South Carolina. See United States v.
Carroll
, 207 F.3d 465 (8th Cir. 2000) (defendant’s
sentence of life imprisonment for role in credit union robbery
under three-strikes law not cruel and unusual); Young v. State,
2000 WL 1210705 (Ga. App. 2000) (imposing life without parole for
armed robbery under recidivist statute, O.C.G.A. ? 17-10-7); State
v. Oliver
, 745 A.2d 1165 (N.J. 2000) (life without parole for
armed robbery under three-strikes law not cruel and unusual); People
v. Ayon
, 53 Cal. Rptr. 2d 853 (Cal. App. 1996) (life sentence
without parole for armed robberies, with prior felony
convictions, not cruel and unusual); United States v. Farmer,
73 F.3d 836 (8th Cir. 1996) (life without parole for
armed robbery coupled with three prior violent felonies not cruel
and unusual). See also Ortiz v. State,
266 Ga. 752, 470 S.E.2d 874, 876 (1996) (upholding Two-Strikes
law imposing life without parole upon conviction of a second
"most serious" offense against eighth amendment
challenge). In sum, we find Jones’ sentence withstands Eighth
Amendment scrutiny.

As to Jones’ equal protection claim, his sole allegation is
that "minorities are affected most" by section
17-25-45. There is absolutely nothing in the record supporting
this assertion.

When the issue is the constitutionality of a statute, every
presumption will be made in favor of its validity and no statute
will be declared unconstitutional unless its invalidity appears
so clearly as to leave no doubt that it conflicts with the
constitution. State v. Bouye, 325 S.C. 260, 484 S.E.2d 641
(1997). Appellants have the burden of proving the statute
unconstitutional. Id. Here, given that Jones has offered
no evidence in support of his claim, he has utterly failed in his
burden. Accord, State v. Oliver, 745 A.2d at 1170
(defendant failed to demonstrate equal protection violation in
three strikes law as there was no showing it had a disparate
impact on minorities). [12] V

Next, Jones claims his sentence "in effect shifted the
burden to [him] to prove the unconstitutionality of the
statute." We find Jones’ argument is so conclusory that it
has been abandoned. See Solomon v. City Realty Co.,
262 S.C. 198, 203 S.E.2d 435 (1974) (where only passage in brief
relating to issue appealed was single conclusory statement which
left unargued the error assigned by exception, issue was
abandoned); Muir v. C.R. Bard, Inc, 336 S.C. 266, 519
S.E.2d 583 (Ct.App.1999) (issue is deemed abandoned on appeal if
it is argued in a short, conclusory statement without supporting
authority). Accordingly, we decline to address the merits of this
issue.

Finally, Jones asserts sentencing under section 17-25-45
violates the ex post facto law because "it changed
the punishment for a crime in a manner that said punishment did
not exist previously." We disagree.

Where conduct in committing offenses which trigger recidivist
features of sentencing provisions occur after the sentencing
provision’s effective date, there is no ex post facto violation.
State v. Dabney, 301 S.C. 271, 391 S.E.2d 563 (1990)
(amendment of statute lengthening period of time previous
convictions could be used to increase punishment for subsequent
DUI offense did not violate ex post facto clause as
applied to drivers who committed offenses for which they were
being sentenced after effective date of statute’s amendment).

Here, Jones’ armed robberies occurred subsequent to passage of
section 17-25-45 and, as such, there is no ex post facto
violation. Accord Phillips v. State, 331 S.C.
482, 504 S.E.2d 111 (1998) (no ex post facto violation
for legislature to enhance punishment for later offense based on
prior conviction, even though enhancement provision was not in
effect at time of prior offense).

To the extent Jones contends the Two-Strikes law changes the
consequences of his 1996 plea to ABIK, he is incorrect. See
Gryger v. Burke, 334 U.S. 728 (1948) (holding that
sentencing as an habitual criminal is not viewed as a new
jeopardy or additional penalty for an earlier crime; rather it is
a stiffened penalty for the latest crime, which is considered to
be an aggravated offense because it is a repetitive one). Accord
State v. Oliver, supra.

In sum, we find no constitutional violation in application of
the Two-Strikes law to Jones.

3. TELFAIRE
CHARGE

Finally, Jones asserts the trial court erred in refusing his
requested charge on identification pursuant to United States
v. Telfaire
, 469 F.2d 552 (D.C. Cir. 1972). We disagree.

In State v. Motes, 264 S.C. 317, 215 S.E.2d 190 (1975),
this Court recognized that the court in Telfaire was
dealing with the "one witness"
identification rule, and the model instruction there was designed
to focus the attention of the jury on the identification issue
and minimize the risk of conviction through false or mistaken
identification. See also State v. Simmons,
308 S.C. 80, 417 S.E.2d 92 (1992) (in single
witness identification cases, court should instruct jury burden
of proving identity of defendant rests with the state). The
present case does not involve a single witness identification
and, given the witnesses’ degree of certainty, there appears very
little likelihood of mistaken identification. We find a Telfaire
charge was unnecessary.

Jones’ remaining issue is affirmed pursuant to Rule 220(b)(1),
SCACR and the following authorities: State v. Stewart, 275
S.C. 447, 272 S.E.2d 628 (1980); State v. Gambrell, 274
S.C. 587, 266 S.E.2d 78 (1980) (photographic and physical
identifications reliable under totality of circumstances).

Jones’ convictions and sentence are

AFFIRMED.

TOAL, C.J., MOORE, BURNETT and PLEICONES, JJ., concur.

FOOTNOTES:

[1]Under
section 17-25-45 (A)(1), upon conviction for a most serious
offense, a person must be sentenced to a term of imprisonment for
life without the possibility of parole if that person has one or
more prior convictions for a most serious offense. Armed robbery
is a most serious offense. S.C.Code Ann. ? 17-25-45(C)(1).

[2] Jones’ 1996 conviction for assault and battery
with intent to kill is a "most serious" crime under the
statute. His 1993 convictions for assault and battery of a high
and aggravated nature and aiding an escape were not used for
enhancement.

[3] United States v. Telfaire, 469 F.2d 552
(D.C. Cir. 1972).

[4] The State asserts the rationale for the holding
in Waller was that the property the defendant took from
any one roommate was insufficient to support a charge of grand
larceny. Contrary to the State’s contention, a footnote in Waller
indicates there was sufficient evidence to permit the jury to
find the value of the property taken from one of the roommates
exceeded $200.00. 280 S.C. at 301, 312 S.E.2d at 553, n. 1.

[5] S.C. Code Ann. ? 16-13-30(A) (Supp. 2000).
Grand larceny is the felonious offense of taking and carrying
away of goods valued at $1000 or more. S.C. Code Ann. ?
16-13-30(B) (Supp. 2000).

[6] In the present case, there is evidence that the
victims were separately threatened. Ricardo Wheeler and Theo
Wheeler each testified that Jones had specifically held the gun
to their head and or side, and Theo testified Jones threatened to
shoot him if he didn’t have any more money. Although there is no
indication Jones specifically pointed the gun at Dwayne Wright’s
head or side, Wright testified Jones made him throw his shoes to
the ground, and fired the gun one time when Wright and the
Wheeler brothers were moving too slowly to suit him.

[7] U.S. Const. art. I, II, III; S.C. Const. art. 1,
? 8.

[8] U.S. Const. amend VIII; S.C. Const. art. 1 ?
15.

[9] U.S. Const. amend. XIV; S.C. Const. art. 1, ?
3.

[10] U.S. Const. art. 1, ? 10; S.C. Const. art. 1,
? 4.

[11] It is questionable, in light of the United
States Supreme Court’s opinion in Harmelin v. Michigan,
501 U.S. 957 (1991), whether the stringent three-factor Solem
inquiry remains mandated in "cruel and unusual
punishment" cases. See State v. Brannon, 341
S.C. 271, 533 S.E.2d 345 (Ct. App. 2000) (finding the 3-prong
inquiry of Solem no longer applicable and requiring only a
threshold comparison of the gravity of the offenses against the
severity of the sentence). However, we need not decide the matter
here since, in our view, even the more stringent test of Solem
is met in this case.

[12] Moreover, we find no cases holding recidivist
statutes or similar laws violate equal protection. See e.g.
Grant v. State, 770 So.2d 655 (Fla. 2000) (Florida’s
recidivist statute held not to violate equal protection); State
v. Thorne
, 921 P.2d 514 (Wash. 1996) (Washington’s Persistent
Offender Accountability Act passes the rational basis test and
does not violate equal protection).

 

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