State v. McCloud

SHULER, J.,

dissenting.

Because I believe the language of McCloud’s indictment did not sufficiently state the offense of criminal domestic violence *46of a high and aggravated nature (CDVHAN), I respectfully dissent.

The majority concludes McCloud’s indictment is sufficient because they find, in evaluating the circumstances surrounding the indictment, he was apprised of the charge against him. However, as I interpret South Carolina precedent regarding indictments and subject matter jurisdiction, the body of the indictment must sufficiently identify the elements of the charged offense. See, e.g., Locke v. State, 341 S.C. 54, 56, 533 S.E.2d 324, 325 (2000) (holding “[a] circuit court has subject matter jurisdiction if ... there has been an indictment which sufficiently states the offense____”) (emphasis added); Granger v. State, 333 S.C. 2, 4, 507 S.E.2d 322, 323 (1998) (finding the true test of the sufficiency of an indictment is whether it contains the elements of the offense and sufficiently apprises the defendant of what he must be prepared to meet) (emphasis added). As such, McCloud’s indictment for CDVHAN is clearly insufficient, as it neither identifies the victim as a household member nor specifically alleges an aggravating circumstance.

The elements of CDVHAN are satisfied when an individual causes physical harm to a household member and the elements of assault and battery of a high and aggravated nature (ABHAN) are present. S.C.Code Ann. §§ 16-25-20,16-25-65 (2003). “A ‘household member’ means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.” S.C.Code Ann. § 16-25-10 (2003). As the majority acknowledges in its opinion, McCloud’s indictment clearly fails to allege the victim’s status as a “household member,” an element necessary to sustain an indictment for CDVHAN. While McCloud and the victim have a child together, this fact is not stated in the indictment. Thus, the key element necessary for a proper CDVHAN indictment is missing.

There is no mention of the statute or code section in either the body of the indictment or the caption. Thus, the elements cannot be implied in that manner. See, e.g., State v. Owens, 346 S.C. 637, 649, 552 S.E.2d 745, 751 (2001) (holding the *47failure to include an element of a statutory offense in the body of an indictment will not invalidate the indictment if specific reference to the statute is made in the body of the indictment). Furthermore, one cannot infer the elements of an offense from the caption of the indictment. See State v. Lark, 64 S.C. 350, 353, 42 S.E. 175, 176-77 (1902) (finding the caption of the indictment cannot be used to expand or contract the allegations, because it is not a part of the findings by the grand jury); cf. State v. Tabory, 262 S.C. 136, 141, 202 S.E.2d 852, 854 (1974) (holding the State may not support a conviction for an offense intended to be charged by relying upon a caption to the exclusion of the language contained in the body of the indictment). As such, the fact that McCloud’s indictment was captioned as “criminal domestic violence — aggravated” is not enough to render the indictment sufficient.

Therefore, all that should be examined in this particular situation is the actual body of the indictment itself. See Tate v. State, 345 S.C. 577, 581, 549 S.E.2d 601, 603 (2001) (finding it is the body of the indictment that is controlling). In the instant case, the body of the indictment alone does not sufficiently describe the elements needed for a CDVHAN offense. In fact, the description of the offense in the body of McCloud’s indictment is sufficiently vague that it could satisfy the elements of either ABHAN12 or simple assault and battery.13 Without mention of the crucial element of CDVHAN the victim’s status as a household member it is impossible to determine from the body of the indictment the crime with which McCloud was charged. As such, I believe McCloud’s indictment for CDVHAN was deficient. See S.C.Code Ann. § 17-19-20 (2003) (an indictment is sufficient if it “charges the crime substantially in the language ... of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood.”); see also State v. Bullard, 348 S.C. 611, 614, 560 S.E.2d 436, 437 (Ct.App.2002).

*48Furthermore, common sense dictates that adopting the majority’s reasoning undermines the purpose of the grand jury system. The 18 members of the grand jury are convened as an impartial panel for the purpose of reviewing the State’s evidence against a criminal defendant. The grand jury must pass on the elements alleged in the indictment before the indictment can be true-billed. If the majority’s analysis is adopted, the actual body of the indictment will become inconsequential because — long after the grand jury has deliberated — a court will be able to supplement the language of the indictment by examination of pre-trial circumstances. In my view, this type of analysis after the fact serves to weaken the role and function of the grand jury system.

For the foregoing reasons, I would vacate McCloud’s conviction for CDVHAN.

. State v. Fennell, 340 S.C. 266, 274, 531 S.E.2d 512, 516 (2000) (defining ABHAN as "the unlawful act of violent injury to another, accompanied by circumstances of aggravation.”).

. State v. Patterson, 337 S.C. 215, 231, 522 S.E.2d 845, 853 (Ct.App.1999) (holding simple assault and battery is an unlawful act of violent injury to another unaccompanied by any circumstances of aggravation).