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THE STATE OF SOUTH CAROLINA
In The Court of Appeals
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The State, Respondent,

v.

Kelvin Jones, a/k/a Kevin L. Jones, Appellant.

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Appeal From Richland County
J. Derham Cole, Circuit Court Judge
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Opinion No. 3138
Heard December 9, 1999 - Filed March 27, 2000
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AFFIRMED
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Assistant Appellant Defender Aileen P. Clare, of S.C. Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot and Senior Assistant Attorney General Charles H. Richardson; and Solicitor Warren B. Giese, all of Columbia, for respondent.

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HOWARD, J.: A jury convicted Kelvin Jones of armed robbery and the trial court sentenced him to life imprisonment pursuant to S.C. Code Ann. § 17-25-45 (Supp. 1999). Jones appeals, arguing the trial court lacked subject matter jurisdiction to convict him and that the trial court erred in failing to direct a verdict in his favor. We affirm.

FACTS

Taking the evidence in a light most favorable to the State, on January 26, 1997, Jones entered a convenience store in Richland County, and handed the clerk a holdup note, stating: "This is a stickup, give me all the money." The clerk initially thought the demand was a joke, but after noticing that Jones kept his left hand in his jacket pocket, the clerk determined it was not a joke. The clerk complied with the note, giving Jones $200.00 from the store register because Jones appeared "deadly serious about it." The clerk never saw a gun, but believed Jones had a gun and he feared being shot.

LAW/ANALYSIS

Jones argues on appeal that: (1) the trial court lacked subject matter jurisdiction where the indictment failed to charge him with the offense allegedly proven at trial; and (2) the trial court erred in refusing to direct a verdict where a material variance existed between the evidence offered at trial and the allegations presented in the indictment.

A criminal defendant is entitled to be tried only on indicted offenses. State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987). In South Carolina, "[i]t is a rule of universal observance in administering the criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment." State v. Gunn, 313 S.C. 124, 136, 437 S.E.2d 75, 82 (1993) (citing State v. Cody, 180 S.C. 417, 186 S.E. 165 (1936)). A material variance between charge and proof entitles the defendant to a directed verdict; such a variance is not material if it "is not an element of the offense." Id. A variance between an allegation contained in the indictment and the proof is immaterial if the unproved allegation is surplusage. State v. Evans, 322 S.C. 78, 470 S.E.2d 97 (1996). "Moreover, a conviction will not be overturned due to evidence that tends to show a narrower charge than that contained in the indictment if the narrower charge is fully included within the indictment." Id. at 82, 470 S.E.2d at 99.

In this case, the indictment clearly alleged Jones committed a robbery while armed with a pistol. The indictment against Jones read as follows:

COUNT ONE - ARMED ROBBERY

That KELVIN LARON JONES did in Richland County on or about January 26, 1997, while armed with a deadly weapon, to wit: a pistol feloniously take from the person or presence of Youssef Elammouri by means of force or intimidation goods or monies of Amoco such goods or monies being described as follows: U.S. Currency with the intent to deprive the owner permanently of such property.

Prior to June 18, 1996, Section 16-11-330 provided in pertinent part as follows:

(1) Any person convicted for the crime of robbery while armed with a pistol, dirk, slingshot, metal knuckles, razor or other deadly weapon shall suffer punishment by imprisonment at hard labor for a term of twenty-five years, in the discretion of the trial judge, no part of which may be suspended . . .

S.C. Code Ann. § 16-11-330(1) (1976).

In State v. Nix, 288 S.C. 492, 343 S.E.2d 627 (Ct. App. 1986), we held the display of a deadly weapon was not an essential element of the offense. In Nix, evidence of one assailant's statement to another during one robbery to "bring the gun" was sufficient to raise a jury question as to whether a second robbery by the same two defendants a short time later was an armed robbery, when coupled with both robbery victims' testimony that they saw something under the robber's shirt, even though the second robbery victim admitted she did not see a gun. Nix did not reduce the State's burden of proving beyond a reasonable doubt that the robber was armed with a deadly weapon as set forth in § 16-11-330. It merely held the evidence was sufficient to raise a jury issue on this question, notwithstanding the fact that no gun was displayed during the robbery.

Section 16-11-330 was subsequently amended, effective June 18, 1996, to provide as follows:

(A) A person who commits robbery while armed with a pistol, dirk, slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, either by action or words, he was armed while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon, is guilty of a felony . . .

S.C. Code Ann. § 16-11-330(A) (Supp. 1999) (emphasis added).

Under this amended section, the State may now prove armed robbery by establishing the commission of a robbery and either one of the two additional elements: (1) that the robber was armed with a deadly weapon or (2) that the robber alleged that he or she was armed with a deadly weapon, either by action or deed, "while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon." Therefore, a defendant may now be convicted of armed robbery under S.C. Code Ann. § 16-11-330(A) (Supp. 1999) if the jury concludes that the robber alleged that he was armed under the requisite circumstances without having to conclude that he was, in fact, so armed. These are now alternative elements of the statutory offense of armed robbery.

It is evident from the colloquy during the motion for a directed verdict that the trial court denied the motion based on proof of a robbery and the alternative element that Jones alleged, by his deeds, he was armed. The indictment charged Jones only with committing the robbery while possessing a pistol. At first glance, the proof at trial would appear to be at variance with the indictment, in which event the failure to grant a directed verdict would be error. See State v. Evans, 322 S.C. 78, 470 S.E.2d 97 (1996); State v. Sowell, 85 S.C. 278, 67 S.E. 316 (1910).

However, the amended version of § 16-11-330 is unusual, in that the alternative element of alleging to be armed in a manner set forth in the statute is also descriptive of circumstantial evidence which could support a conviction under the first alternative element of actually being armed with a pistol, metal knuckles, razor, or other deadly weapon. See State v. Nix, supra. Consequently, there is only a material variance between the indictment and the proof at trial if the trial judge submitted the case to the jury, and the jury could have convicted Jones, on the legal basis that he committed a robbery while alleging he was armed with a deadly weapon as described within the statute. If, on the other hand, the trial judge charged the jury that in order to find Jones guilty the State was required to prove that Jones did, in fact, have a deadly weapon at the time of the robbery, then the indictment accurately reflected both the charge and the factual basis for the charge, and there was no material variance. Cf. State v. Hiott, 276 S.C. 72, 276 S.E.2d 163 (1981). Therefore, because of the unique wording of this statute, the trial judge did not err in refusing to direct a verdict.(1) See State v. McCombs, 335 S.C. 123, 515 S.E.2d 547 (Ct. App. 1999) (if there is any evidence tending to establish the offense charged against the accused, then it is the duty of the trial court to submit the question of whether the offense occurred to the jury).

Furthermore, under this view, the indictment was sufficient on its face to apprise Jones of the elements of the offense intended to be charged and to apprise him of what he must be prepared to meet. See Evans, 322 S.C. 78, 470 S.E.2d 97 (1996). Therefore, Jones's assertion that the trial court lacked subject matter jurisdiction is without merit.

CONCLUSION

For the foregoing reasons, the conviction for armed robbery is hereby

AFFIRMED.

HUFF, J., concurs. CURETON, J., dissents in a separate opinion.

CURETON, J., (Dissenting). I agree with the majority's conclusion that the crime alleged in the indictment requires proof that Jones actually possessed a weapon during the commission of the crime he is charged with. Nevertheless, I disagree with the majority's conclusion that there is sufficient circumstantial evidence to take the case to the jury as to whether or not Jones committed the robbery while actually armed with a pistol. I also disagree with the majority's conclusion that if the trial court's jury charge, which is not in the record, required the State to prove Jones did, in fact, have a deadly weapon, such would remedy any claim of a variance between the indictment and the evidence. Finally, while the State could prove Jones actually possessed a gun circumstantially, it is quite evident from the colloquy between the trial judge and Jones's counsel during argument on the motion for a directed verdict that the trial court denied the motion based on the fact that Jones alleged, by his actions, that he was armed with a weapon.

Prior to the amendment of Section 16-11-330, the appellate courts of this state held that it was not necessary that the state prove the actual use of a deadly weapon during an armed robbery, but that the use of a deadly weapon could be proven by circumstantial evidence. See State v. Tasco, 292 S.C. 270, 356 S.E.2d 117 (1987); State v. Nix, 288 S.C. 492, 343 S.E.2d 627 (Ct. App. 1986). As I read the amended statute, the Legislature has codified prior case law in a more expansive manner. Nevertheless, the Legislature by enacting Section 16-11-330, makes it clear that a defendant may commit armed robbery in two ways: (1) by actually possessing a "pistol, dirk, slingshot, metal knuckles, razor or other deadly weapon" during a robbery, or (2) by representing through his conduct that he was armed while using a representation(1d)

of a deadly weapon or any other object which a person present during the commission of the robbery reasonably believed to be a deadly weapon. . . ." (Emphasis ours).(2d)

We next proceed to the question of whether there is any circumstantial evidence tending to show that Jones actually had a gun as alleged in the indictment. In my view, there is none. To conclude, as the majority does, that circumstantial evidence of the sort involved here may prove the actual possession of a weapon nullifies any purpose in the Legislature enacting the 1996 amendment and effectively makes no distinction between the two definitions of armed robbery outlined in the statute. Because the state elected to charge Jones in the indictment with armed robbery that required actual proof of use of a gun during the commission of the crime, while the proof at trial shows only that Jones "alleged" he was armed with a gun, I would hold Jones was convicted of an offense based on proof that materially varied from the allegations in the indictment. See State v. Sowell, 85 S.C. 278, 67 S.E. 316 (1910). I would reverse.

1d. In State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241, n.1 (1996), our supreme court appeared to have emphasized that under Section 16-11-330, where the crime of armed robbery is based on the defendant "alleging" he was armed at the time of the crime, that there is also a requirement that the alleging occur "while [defendant is] using a representation of a deadly weapon . . . ."

2d. The majority concedes Jones could not have been convicted under the definition of armed robbery indicated in the bold print. There is no indication Jones used the representation of a deadly weapon during the robbery.

1. The jury charge is not contained within the record on appeal. We are, therefore, unable to ascertain on what theory the jury could have based its decision.