Submitted September 1, 2016
From Abbeville County Thomas L. Hughston, Jr., Circuit Court
Judge Appellate Case No. 2013-002655
Appellate Defender Robert M. Pachak, of Columbia, for
Attorney General Alan McCrory Wilson and Assistant Attorney
General Megan Harrigan Jameson, both of Columbia, for
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.
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.
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
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.
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.
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).
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.