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State v. Oates

Court of Appeals of South Carolina

July 26, 2017

The State, Respondent,
v.
Preston Ryan Oates, Appellant. Appellate Case No. 2014-001404

          Heard Date June 7, 2017

         Appellate Case No. 2014-001404 Appeal From Beaufort County R. Markley Dennis, Jr., Circuit Court Judge Brooks P. Goldsmith, Circuit Court Judge.

          Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, both of Columbia; and Solicitor Isaac McDuffie Stone, III, of Bluffton, for Respondent.

          GEATHERS, J.

         Appellant Preston Ryan Oates seeks review of his convictions for voluntary manslaughter and possession of a weapon during the commission of a violent crime. Appellant also challenges the denial of his motion for immunity from prosecution pursuant to the Protection of Persons and Property Act (the Act).[1]Appellant argues the circuit court erred in denying his motion for immunity because (1) there was evidence that the victim, Carlos Olivera (Victim), was attempting to forcibly remove Appellant from his occupied vehicle, and (2) the circuit court's finding that the conflict had resolved at the time of the shooting was not supported by the evidence.

         Appellant also challenges the circuit court's refusal to direct a verdict of acquittal on the ground that the State failed to disprove self-defense. Finally, Appellant assigns error to the circuit court's decision to give a voluntary manslaughter instruction to the jury on the ground that there was no evidence of sudden heat of passion. We affirm.

         FACTS/PROCEDURAL HISTORY

         On December 24, 2010, at approximately 8:00 p.m., Victim and his family visited his brother, Nelson Olivera (Nelson), and Nelson's family at their home in the Edgefield neighborhood near Bluffton. Although the Edgefield Homeowner's Association (the HOA) had prohibited parking on the streets in the subdivision, Victim parked his minivan on the street in front of the house of Nelson's neighbor, Steve Varedi. While Victim, Nelson, and their two families were visiting inside Nelson's house, Appellant, who had been hired by the HOA to tow illegally parked vehicles, noticed Victim's minivan and placed an automotive disabling device, i.e., a "boot, " on the minivan's left front wheel. By the time Appellant was proceeding to hook up the minivan to the tow truck, Varedi had notified Victim that Appellant was about to tow Victim's minivan.

         Victim, Nelson, and Varedi approached Appellant to ask him to refrain from towing the minivan because it was Christmas Eve and Victim was going to leave at that moment. When Appellant saw the three men approaching him, he felt intimidated and went back into the cab of his truck, shut the door, and locked it. Subsequently, Appellant rolled down the driver's side door window to speak with the men. According to Nelson, he was pleading for Appellant to release the minivan.

         However, Appellant told investigators that when the three men approached him, they were running "a little abruptly" and were "hooting" and "hollering." He stated both Nelson and Victim jumped up on the truck's running board and started talking to him through the window and Victim told Varedi, "Go get my shotgun." Appellant recounted Nelson saying, "Take that off his vehicle, " to which Appellant responded, "Okay[, ] let me call my office and see what they [want to] do and we'll get a handle . . . . It's not a problem, we can work this out."

         Appellant then heard "a round being chambered" as well as Victim stating, "You're [going to] take this off right now and I'm leaving, " to which Appellant responded, "[T]hat's fine." Appellant further stated he stalled to regain his composure by fumbling with his set of keys and dropping them twice and he "kept kind of freaking out a little bit." Nelson's testimony was consistent with these two statements. Nelson admitted that Victim pulled a gun out of his pants, ratcheted the gun, and stated, "Nobody's going to take my car." Nelson stated Appellant "seemed very nervous, moving some keys and touching some papers, " although he indicated this was already occurring when Victim pulled out his gun.

         Appellant indicated that as he was fumbling with his keys, Nelson "grabbed" them along with the lock tool that releases the boot and took them to the front of the minivan.[2] According to Appellant, while Victim was still "in the window, " he asked Appellant if he had any paperwork on the minivan and stated he did not want law enforcement to "come look" for him. This dialogue frightened Appellant; he recounted, "[T]hat threw up a major red flag because he wants to make sure there's nothing in my vehicle that will connect me to his car." Appellant then pulled out his ledger and showed it to Victim to reassure him that Appellant had no paperwork on the minivan. While he was showing Victim the ledger, Appellant opened his glove box and pulled out his gun along with some papers on top of it to hide it.

         At this point, another neighbor, Reba Bryan, offered to call 911, but both Appellant and Nelson told her it was unnecessary. According to Appellant, he stated, "Don't worry about it, everything's fine, go back inside, he's got a gun, so everything's okay here" in an attempt to give her the message to call 911 without alerting the other men to his message. Appellant then heard Nelson yell out something in Spanish to Victim. At that moment, Victim "look[ed] at [Appellant] and he [stated], '[O]kay you're [going to] come get this s**t off . . . . Come get this s**t off now.'" Appellant described the next few moments in the following manner:

[Victim] unlocked the door of my truck and pulled the handle and opened it, and as he opened it, he was stepping down off of the running board . . . so he was opening it with his left hand . . . . As he stepped back, I saw him with his right hand reach and grab the pistol that was . . . kind of stuffed in his belt in the front. Well, [with] my line of sight and where he was, I didn't [want to] just cross through the cab, so as he opened it, just to play along like I was [going to] exit the vehicle to unlock the boot, [because] he was already in draw, in motion . . . . And . . . as he was stepping down[, ] the door was open and he was starting to draw, I came around and I rotated and actually . . . I [exited] the [cab] and as I was [exiting] the [cab], since I had a little bit of [a ] h eight advantage on him, as I [exited] out straight instead of toward him, I [exited] straight out my door stepping off of the metal running boards . . . and I was [exiting] out, and I looked and my line of sight was through him straight down to the ground. It's now or never. He's already in motion and he's in draw. Whether he's drawing it to intimidate me, to keep me to go do what he wants me to do, or if he knew I didn't have any information on his vehicle and . . . ah, bye, bye, Preston . . . regardless, he was in motion, he was in draw and I reacted. I know . . . I remember the very first shot. I caught him on the left side. . . .
And that made him rotate left. Well, I didn't know if I grazed his . . . the edge of his arm, if I grazed him under his . . . I don't . . . I didn't see [the] impact. I just know th at I . . . right when I was able to lock my elbows and squeeze the trigger . . . I hit him on the left side. . . . And so it may have caused him to rotate. . . . so he turned towards the yard . . . . And as he . . . went that way, I remember seeing this part of his shoulder right here . . . . He was still a threat to me. You're a threat until you're disarmed or you're unconscious. I discharged again. I . . . don't know how many times I pulled the trigger. . . .
I remember two shots . . . . So as he's turning, . . . that would be counter-clockwise, . . . and his shoulder was here . . . I . . . let go a second round . . . [because] my line of sight was clear, . . . I still had a little bit of [a] height advantage because I was . . . still progressing down from my elevated position. . . . And then when I stopped, I saw the gun slide across the asphalt and stop . . . and I . . . stopped and I landed on the ground at low ready and I froze there.

         Several witness accounts of the entire incident conflicted with Appellant's statement that Victim ordered him out of the truck while he was drawing his pistol. According to Nelson, after Victim first ratcheted his gun and stated, "Nobody's going to take my car, " Nelson told Victim to put his gun away, Victim then placed the gun back into his waistband, and Victim never pulled it back out. Nelson expressly stated there was "no arguing, . . . no fighting, . . . no bad words" and Victim never talked to, threatened, or "attempt[ed] to do anything to [Appellant]." Victim's widow, Dhayan Olivera, testified Victim was directing traffic that was partially blocked by his minivan and the tow truck when Appellant shot him. Nelson's wife, Claudia Olivera, gave similar testimony. The testimony of Victim's widow, Nelson's wife, and Nelson's neighbors, as well as a video from Varedi's home surveillance camera, indicated Victim was walking or running away from Appellant when Appellant began shooting him. Nelson's wife and Victim's widow also testified Appellant continued shooting Victim even after he fell onto the street.

         Several of the eyewitnesses, including Appellant, immediately called 911 to report the incident. The paramedic who later arrived on the scene detected no signs of life in Victim. Dr. Ellen Riemer, a forensic pathologist, conducted an autopsy on Victim and prepared a report revealing that Victim had been shot six times. In her report and at trial, she described the following gunshot wounds, not necessarily in the order in which Victim sustained them: (1) to the right side of the posterior neck; (2) to the right side of the abdomen; (3) to the middle of the back; (4) to the left side of the back; (5) to the posterior aspect of the right arm; and (6) to the left side of the upper back. Dr. Riemer confirmed there was only one gunshot wound that was not on the posterior aspect of Victim's body.

         Dr. Riemer's report also noted she found no gunpowder residue near any of Victim's wounds. However, she testified that rather than characterizing the wounds as "distant gunshot wounds, " she called them "indeterminate" because "even if it's at very close range, if there's an intermediate object that could absorb the stippling, . . . it's not deposited on the skin" and she could not "say for certain, based on all the findings on the body, . . . if it was shot at a distant range." Dr. Riemer also testified she examined Victim's clothing and saw "no obvious signs of any type of soot on the clothing."

         Appellant was indicted for voluntary manslaughter and possession of a weapon during the commission of a violent crime. Appellant filed a motion for immunity under the Act, and the Honorable R. Markley Dennis, Jr. conducted a hearing on the motion, which he later denied. Appellant filed a motion for reconsideration, which Judge Dennis denied after a hearing. Appellant filed an appeal from these rulings; however, this court dismissed the appeal as interlocutory.[3]

         Subsequently, Appellant was indicted for murder, and the solicitor dismissed the voluntary manslaughter indictment at the beginning of the murder trial before the Honorable Brooks P. Goldsmith. At the State's request and over Appellant's objection, the circuit court instructed the jury on the lesser-included offense of voluntary manslaughter. The jury found Appellant guilty of voluntary manslaughter and possession of a weapon during the commission of a violent crime. The circuit court sentenced Appellant to twenty-six years of imprisonment for voluntary manslaughter and five years of imprisonment for the weapon possession conviction, to run concurrently. The circuit court denied all of Appellant's post-trial motions, with the exception of his motion to reduce his sentence. The circuit court reduced the sentence for voluntary manslaughter to twenty-four years of imprisonment. This appeal followed.

         ISSUES ON APPEAL

         1. Did the circuit court abuse its discretion in declining to grant Appellant immunity from prosecution under the Act when there was evidence that Victim attempted to forcibly remove Appellant from his occupied vehicle?

         2. Was the circuit court's finding that the conflict had resolved at the time of the shooting supported by the evidence?

         3. Did the circuit court err in refusing to direct a verdict of acquittal on the basis of self-defense?

         4. Was there evidence of sudden heat of passion to justify the circuit court's jury instruction on voluntary manslaughter?

         LAW/ANALYSIS

         I. Immunity

         Appellant argues the circuit court committed an error of law in declining to find he was entitled to immunity under section 16-11-440(A) of the South Carolina Code (2015) because there was evidence that Victim was attempting to forcibly remove Appellant from his occupied vehicle. Appellant also argues the circuit court abused its discretion in declining to find Appellant was entitled to immunity under section 16-11-440(C) because the circuit court's finding that the conflict had resolved at the time of the shooting was not supported by the evidence. We disagree.

         "A claim of immunity under the Act requires a pretrial determination using a preponderance of the evidence standard, which this court reviews under an abuse of discretion standard of review." State v. Jones, 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016) (quoting State v. Curry, 406 S.C. 364, 370, 752 S.E.2d 263, 266 (2013)). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Id. "In other words, the abuse of discretion standard of review does not allow this court to reweigh the evidence or second-guess the [circuit] court's assessment of witness credibility." State v. Douglas, 411 S.C. 307, 316, 768 S.E.2d 232, 237-38 (Ct. App. 2014). Further, "the General Assembly did not intend" to require the circuit court "to accept the accused's version of the underlying facts" in determining a motion for immunity under the Act. Curry, 406 S.C. at 371, 752 S.E.2d at 266.

         Section 16-11-440 provides, in pertinent part,

(A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:
(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and
(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act ...

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