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State v. Brandenburg

Court of Appeals of South Carolina

February 22, 2017

The State, Respondent,
v.
Charles Moody Brandenburg, Jr., Appellant.

          Submitted September 1, 2016

         Appeal From Abbeville County Thomas L. Hughston, Jr., Circuit Court Judge Appellate Case No. 2013-002655

         AFFIRMED

          Appellate Defender Robert M. Pachak, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson and Assistant Attorney General Megan Harrigan Jameson, both of Columbia, for Respondent.

          OPINION

          WILLIAMS, J.

         In this criminal appeal, Charles Moody Brandenburg claims the circuit court erred in charging the jury on first-degree harassment (harassment) as a lesser included offense of stalking. Brandenburg argues harassment is not a lesser included offense of stalking because harassment includes two elements not found in stalking: "unreasonable intrusion into the private life of a targeted person" and "emotional distress." We affirm.

         FACTS

         In December 2013, Brandenburg proceeded to trial on an indictment for stalking. Angela Brandenburg (Angela) testified Brandenburg was her estranged husband. Angela claimed they had two children and lived in Berkeley County, but they separated in June 2012. According to Angela, she left Brandenburg without notice and moved into her parents' home in Abbeville County. Angela stated Brandenburg followed her or "showed up" unexpectedly on several occasions. Despite the family court awarding Angela sole custody of their children and issuing an order prohibiting Brandenburg from contacting her, she asserted he continued to contact her.

         After Brandenburg rested, the State requested the circuit court charge the jury on harassment as a lesser included offense. Brandenburg objected to including harassment because the State originally had a warrant for stalking and a warrant for harassment. Brandenburg claimed the State chose to proceed on the stalking charge, and therefore, "they need[ed] to go with that choice." The State claimed harassment was a lesser included offense and the law did not require the State to choose between lesser included offenses. The State asserted the circuit court should charge harassment if the evidence supported the charge. The circuit court noted it believed harassment was not a lesser included offense of stalking, but it reserved its final ruling until the following day.

         The next day, the circuit court noted it had "extensive in chambers discussions" regarding the jury charge, but it would allow the parties to explain their positions on the record. The circuit court explained it intended to include a jury charge on harassment and allow the jury to find Brandenburg guilty of harassment if they found him not guilty of stalking. The State explained the test for determining whether an offense was a lesser included offense was "whether the elements [were] the same, minus one." Brandenburg argued harassment was not a lesser included offense because "the harassment statute included elements that [were] not in the stalking statute." Specifically, Brandenburg claimed the harassment statute required an "[un]reasonable intrusion" but the stalking statute did not. In addition, Brandenburg asserted the harassment statute required the victim to suffer emotional distress whereas the stalking statute did not. The court indicated it appreciated Brandenburg's position, but "considering everything, " it believed charging harassment was appropriate.

         Subsequently, the circuit court charged the jury that it could consider whether the State proved beyond a reasonable doubt that Brandenburg committed harassment if it found Brandenburg not guilty of stalking. The jury found Brandenburg not guilty of stalking but guilty of harassment. The circuit court sentenced Brandenburg to three years' imprisonment suspended on the service of sixteen months' imprisonment and five years' probation. Brandenburg's counsel submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting the appeal was meritless and asking to be relieved as counsel. This court denied the motion to be relieved as counsel and directed the parties to brief the issue that is now before this court on appeal.

         STANDARD OF REVIEW

         "An appellate court will not reverse the [circuit court]'s decision regarding a jury charge absent an abuse of discretion." State v. Brandt, 393 S.C. 526, 550, 713 S.E.2d 591, 603 (2011) (quoting State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010)). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law." State v. Patterson, 367 S.C. 219, 224, 625 S.E.2d 239, 242 (Ct. App. 2006). "To warrant reversal, a [circuit court]'s refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant." State v. Adkins, 353 S.C. 312, 319, 577 S.E.2d 460, 464 (Ct. App. 2003).

         Questions of statutory interpretation are questions of law, which are subject to de novo review and which we are free to decide without any deference to the court below. Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund,389 S.C. 422, 427, 699 S.E.2d 687, 689 (2010). "The cardinal rule of statutory interpretation is to ascertain and effectuate the intent[] of the legislature." Sloan v. Hardee,371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007). "All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute." State v. ...


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