State v. Barnett

BEATTY, J.:

I respectfully dissent. Barnett maintains the circuit court lacked subject matter jurisdiction of the grand larceny charge because he was not properly indicted on the charge. Specifically, he contends the language of the indictment could be construed to mean he faced the misdemeanor charge of petit larceny rather than grand larceny, which is a felony. Put differently, Barnett alleges the indictment failed to include an *205essential element of grand larceny — that the value of the property stolen was in excess of $1,000. I agree.

In July 2000, a grand jury indicted Barnett for two counts of kidnapping, two counts of first-degree burglary, and grand larceny. The caption of Barnett’s indictment for grand larceny read “GRAND LARCENY OF MOTOR VEHICLE UNDER $5000” and referenced S.C.Code Section 16-1S-30(B)(1). The body of the indictment alleged:

That John Barnett did in Richland County on or about May 10, 2000, feloniously take and carry away the personal property of Rosa Daniels, to wit: 1988 Pontiac 6000 with S.C. tag 542KJD, valued under $5000.00.

Grand larceny involves stolen property valued in excess of $1,000, whereas petit larceny applies to stolen property valued at $1,000 or less. See S.C.Code Ann. § 16-13-30, et seq. (Supp.2002); State v. Parker, 351 S.C. 567, 570, 571 S.E.2d 288, 289 (2002). “The monetary value of the goods taken is an element of the offense of grand larceny.” Parker, 351 S.C. at 571, 571 S.E.2d at 290; see also Johnson v. State, 319 S.C. 62, 64, 459 S.E.2d 840, 841 (1995) (grand larceny involved taking and carrying away of goods valued at $200 or more; value is element of grand larceny offense); State v. Ates, 297 S.C. 316, 318, 377 S.E.2d 98, 99 n. 1 (1989) (“In a grand larceny prosecution, value is critical element; it is the State’s burden to prove value of stolen goods exceeds $200.”) (emphasis added).2

The circuit court lacks jurisdiction to convict a defendant of an offense unless the defendant waives presentment, the offense is a lesser-included offense of the crime charged in the indictment, or there is an indictment that sufficiently states the offense. State v. Owens, 346 S.C. 637, 648, 552 S.E.2d 745, 751 (2001). “An indictment is sufficient if it apprises the defendant of the elements of the offense intended to be chai'ged and apprises the defendant of what he must be prepared to meet.” Granger v. State, 333 S.C. 2, 4, 507 S.E.2d 322, 323 (1998) (emphasis added). The indictment sufficiency *206criteria must be viewed with a “practical eye”; all the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached. State v. Gunn, 313 S.C. 124, 130, 437 S.E.2d 75, 78 (1993). This includes looking both at the face of the indictment and the circumstances surrounding the trial. See State v. Reddick, 348 S.C. 631, 636, 560 S.E.2d 441, 443 (Ct.App.2002) (examining the indictment “on its face” and considering the “events at trial” to determine whether the appellants were on notice and apprised of the charges against them).

The caption of the indictment charged Barnett with violation of S.C.Code Ann. § 16 — 13—30(B)(1). The caption read that Barnett was charged with “GRAND LARCENY OF MOTOR VEHICLE UNDER $5000.” However, the body of the indictment failed to make specific reference to the code section applicable to grand larceny, and did not list the elements of the offense. “[Ojne cannot infer the elements of an offense from the caption of the indictment.” State v. McCloud, 354 S.C. 40, 47, 579 S.E.2d 534, 537 (Ct.App.2003) (Shuler, J., dissenting) (citing State v. Lark, 64 S.C. 350, 353, 42 S.E. 175, 176-77 (1902)); see also State v. Tabory, 262 S.C. 136, 141, 202 S.E.2d 852, 854 (1974) (“[T]he 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.”).

Our supreme court used the phrase “practical eye” to determine whether an indictment is legally sufficient. See Gunn, 313 S.C. at 130, 437 S.E.2d at 78. Courts are called to examine the totality of the circumstances to determine whether a defendant was aware of the crime for which he was charged. Id. “All the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached.”3 Viewing the indictment with a practical eye, I believe the indictment was insufficient to apprise Barnett of the elements of the crime he should have been prepared to meet. Nothing in the *207record indicates that Barnett was granted a preliminary hearing, whereby he could discover the crimes for which he was being tried. See McCloud, 354 S.C. at 44, 579 S.E.2d at 536. Although the record reflects that the trial court and solicitor made several references to Barnett’s charges, doing so during the trial did not allot Barnett sufficient notice to prepare his defense.

In State v. Wilkes, our supreme court reversed this Court’s decision to vacate two indictments for assault on a correctional facility employee. 353 S.C. 462, 578 S.E.2d 717 (2003). The body of the indictments used the word “officer” to describe the victim, instead of “correctional facility employee.” Otherwise, the body of each indictment included the elements of the offense, as well as the title and code section of the charges.4 Moreover, the language in the body of the indictment was phrased substantially in the language of the statute defining the offense. See State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981).

Unlike Wilkes, the body of the indictment in this matter does not include all of the elements of the offense of grand larceny, nor does it include the code section. Moreover, in Wilkes, the gist of the issue was one of semantics, not elements of the offense. The question was whether, in the context of the indictment, “officer” and “correctional facility employee” were synonymous as used in the statute. Wilkes, 353 S.C. at 464, 578 S.E.2d at 718. It was patently clear the words were synonymous.

However, in the instant case there is no such clarity. In actuality, the body of the indictment merely charges petit larceny. The caption of the indictment lists the code section where grand larceny of more than $1000 and less than $5000 is set forth. This caption may assist the judge in determining the proper sentence; however, it does not provide the missing-element required in the body of the indictment for grand larceny. See Tabory, 262 S.C. at 140, 202 S.E.2d at 854. Therefore, Barnett was not on proper notice of the crime *208charged: the offense of petit larceny as charged in the body of the indictment or, grand larceny as stated in the caption. An indictment should not leave this question for criminal defendants to decipher; the law requires indictments to clearly answer this question.

Weighing the circumstances surrounding Barnett’s indictment and subsequent conviction, I believe Barnett was not sufficiently apprised of the elements of the crime of grand larceny. I believe the indictment could have been construed to involve stolen property valued at less than $1,000, malting the crime petit larceny, a misdemeanor. Therefore, Barnett was prejudiced by the missing property value from the indictment. For the foregoing reasons, I believe the conviction for grand larceny should be vacated.

. Previously, the value of goods for grand larceny was $200 or more. See S.C.Code Ann. § 16-13-30 (1985). The statute has been amended to set the value of goods for grand larceny at more than $1,000. S.C.Code Ann § 16-13-30(B)(1) (Supp.2002).

. Reddick, 348 S.C. at 633, 560 S.E.2d at 443 (citing State v. Hiott, 276 S.C. 72, 81, 276 S.E.2d 163, 167 (1981); State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981); State v. Evans, 216 S.C. 328, 57 S.E.2d 756 (1950)).

. Both indictments contained the titles of the charges in the body that state the victim was a correctional facility employee. Additionally, both indictments cite S.C.Code Ann. § 16-3-360, appropriately apprising the defendant of the charges he would be called to meet. Wilkes, 353 S.C. at 465, 578 S.E.2d at 719.