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State v. Simms

Supreme Court of South Carolina

June 10, 2015

The State, Respondent,
Curtis J. Simms, Appellant

Heard March 5, 2014.

Appeal From Richland County. Diane Schafer Goodstein, Circuit Court Judge. Appellate Case No. 2013-001219.

Jonathan S. Gasser, Chief Appellate Defender Robert Michael Dudek, Appellate Defender Susan Barber Hackett, and Appellate Defender David Alexander, all of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Salley W. Elliott, and Solicitor Daniel Edward Johnson, all of Columbia, for Respondent.

CHIEF JUSTICE TOAL. BEATTY AND KITTREDGE, JJ., concur. PLEICONES, J., dissenting in a separate opinion in which HEARN, J., concurs.



Curtis Simms (Appellant) appeals his conviction for high and aggravated breach of the peace, and resulting sentence. We affirm.

Page 446

Factual/Procedural History[1]

This case arises out of the tragic death of a young man, Martin Gasque (the victim), outside of Williams-Brice Stadium following the University of South Carolina football game against the University of Alabama in October 2010. Both Appellant and the victim tailgated near the stadium during the football game, and both were intoxicated as they left the area. Appellant, wearing an Alabama jersey, left the tailgate with friends, riding as the front-seat passenger in a green truck driven by a friend, Dustin Lindsey. Lindsey attempted to exit the tailgate parking lot by turning right onto Shop Road.[2] The victim--an avid Gamecock fan--was the front-seat passenger in a black truck driven by his friend Adam Paxton, and was boisterously engaging Gamecock fans through his open window as Paxton inched down Shop Road in the " bumper-to-bumper" traffic.

The two trucks and passengers crossed paths when the black truck blocked the green truck from exiting the parking lot. Lindsey blew his horn. In response, the victim threw up his hands, as if to indicate that he was sorry for blocking Lindsey's entry into the roadway. Appellant exited the green truck and approached the black truck's passenger side, where the victim was sitting. Appellant punched the victim once while he was seated in the truck, and then hit the victim four or five more times as he exited the black truck. The victim was knocked unconscious, and fell into the roadway parallel to the truck on the white line comprising the edge of the lane of traffic. After the victim hit the ground, Paxton began pulling his truck forward to the right in order to move the truck onto the shoulder of Shop Road and out of the roadway. As he did so, he unknowingly began to slowly roll over the victim between his legs, then over his groin, his abdomen, his chest, and finally, his head. Appellant yelled at Paxton to stop, and banged on the truck with his fists, but this only caused Paxton to accelerate.

The victim died at the scene after suffering a hinge fracture, an injury incompatible with life, which was caused by Paxton running over him.

Due to the fact that the death occurred in the roadway, police blocked both lanes of traffic for several hours. One eyewitness testified that the line of traffic was already " bumper-to-bumper," and this incident " just added to it." A responding Sheriff's deputy testified that a large crowd of people were present at the scene and it was " pretty chaotic." Further, " pedestrians were everywhere," and " [c]rowds of people were agitated with traffic problems" and were " just constantly . . . berat[ing] the police." Another Sheriff's deputy testified that due to the " gridlock," " [it] took a while to get things moving."

Appellant was charged with both aggravated breach of the peach and involuntary manslaughter. The jury returned a verdict of not guilty on the involuntary manslaughter charge, but found Appellant guilty of aggravated breach of the peace.

The trial court sentenced Appellant to ten years' imprisonment, suspended upon the service of five years' imprisonment and three years' probation, but later reduced Appellant's sentence to ten years' imprisonment suspended upon the service of three years' imprisonment, plus three years' probation.

Appellant subsequently filed a petition for a writ of habeas corpus, which this Court denied. However, we subsequently certified this appeal from the court of appeals pursuant to Rule 204(b), SCACR.


I. Whether the circuit court erred in refusing to direct a verdict of acquittal with respect to the aggravated breach of the peace charge?
II. Whether the trial court imposed an illegal sentence?

Page 447

III. Whether the circuit court erred in refusing to admit certain eyewitness testimony?


I. Directed Verdict

At trial, Appellant moved for a directed verdict on the breach of the peace indictment because his conduct in punching the victim did not " rise to the level suggested by our legislature for [the breach of the peace] charge to go forward." The circuit court denied the directed verdict based upon the number of punches thrown by Appellant, the public nature of the incident, and the number of people who witnessed the fight. Appellant renewed his directed verdict motion at the close of his case on the same basis as his previous motion, and the trial court again denied the motion. On appeal to this Court, Appellant contends the trial court erred in denying his directed verdict because there is no evidence in the record to support the finding that there were aggravating circumstances. We find that the State presented evidence sufficient to withstand Appellant's directed verdict motion with respect to the breach of the peace charge.

A breach of the peace is a common law offense. State v. Randolph, 239 S.C. 79, 121 S.E.2d 349 (1961). Encompassing a broad range of conduct, South Carolina courts have analyzed a breach of the peace over the centuries as a crime defying strict definition:

The term " breach of the peace" is a generic one embracing a great variety of conduct destroying or menacing public order and tranquility. In general terms a breach of peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence, which includes any violation of any law enacted to preserve peace and good order.

State v. Poinsett, 250 S.C. 293, 297, 157 S.E.2d 570, 571 (1967) (citation omitted); see also Randolph, 239 S.C. at 83, 121 S.E.2d at 350 (" Breach of the peace is a common law offense which is not susceptible of exact definition." ). As noted by the court of appeals in State v. Peer :

Throughout the various definitions appearing in the cases there runs the proposition that a breach of the peace may be generally defined as such a violation of the public order as amounts to a disturbance of the public tranquility, by act or conduct either directly having this effect, or by inciting or tending to incite such a disturbance of the public tranquility. Under this general definition, therefore, in laying the foundation for a prosecution for the offense of breach of the peace it is not necessary that the peace ...

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