THE STATE OF SOUTH CAROLINA
In the Supreme Court
APPEAL FROM CHEROKEE COUNTY
Court of Common Pleas
J. Mark Hayes, II, Circuit Court Judge
Case No. 2005-CP-11-660
The State, .............................Respondent,
v.
Charles Jordan Tillinghast, Appellant.
FINAL BRIEF OF APPELLANT
Trent N. Pruett Pruett Law Firm 202 North Petty Street Gaffney, S.C. 29340 (864) 488-0120|S.C. Bar No. 4585 Attorney for the Appellant
INDEX
Index........................................................................................................... 1 Table of Authorities.................................................................................. 2 Statement of Issues on Appeal............................................................... 5 Statement of the Case............................................................................. 5 Argument I
THE CIRCUIT COURT ERRED IN HEARING THE STATE'S APPEAL FROM A DIRECTED VERDICT OF NOT GUILTY IN A CRIMINAL CASE...........................
7 II
IF THE CIRCUIT COURT DID NOT ERR IN HEARING THE STATE'S APPEAL, THE CIRCUIT COURT ERRED IN REVERSING THE MAGISTRATE' 5 FINDING THAT THE PROVISIONS OF S.C. CODE ANN. §20-7-8920 (Cum. Supp. 2005) WERE UNCONSTITUTIONAL AS APPLIED TO THE APPELLANT .................................................................
10 Conclusion................................................................................................. 18 Certificate of Counsel............................................................................... 19
TABLE OF AUTHORITIES
Davis v. County of Greenville, 313 S.C. 459,
443 S.E.2d 383 (1994).......................................................................13
Duncan v. York County, 267 S.C. 327,
228 S.E.2d 92 (1976).........................................................................13
Elliott v. McNair, 250 S.C. 75,
156 S.E.2d 421 (1967)........................................................................13 Gaster v. Evatt, 326 S.C. 33,
483 S.E.2d 197 (1997)........................................................................14
Main v. Thomason, 342 S.C. 79,
535 S.E.2d 918 (2000)12
Ravenel v. Dekle, 265 S.C. 364,
218 S.E.2d 521 (1975)........................................................................16
Sheppard v. City of Orangeburg, 314 S.C. 240,
442 S.E.2d 601 (1994)........................................................................13
Sloan v. Friends of the Hunley. Inc., 369 S.C.
630 S.E.2d 474 (2006)........................................................................9
State v. Baucom, 340 S.C. 339,
531 S.E.2d 922 (2000)........................................................................14
State v. Bowen, 4 McCord, 254........................................................................7
State v. Edwards, 2 Nott & McC. 15........................................................................7
State v. Gathers, 15 S.C. 370........................................................................7
State v. Holiday, 255 S.C. 142,
177 S.E.2d 541 (1970)........................................................................7,8
State v. Ivey, 73 S.C. 282,
53S.E.428 (1906)........................................................................7
State v. Ludlam, 189 S.C. 69,
200 S.E. 361 (1938)........................................................................7
State v. Lynn, 120 S.C. 258,
113 S.E. 74 (1922)........................................................................7
State v. McKnight, 353 S.C. 238,
577 S.E.2d 456 (2003)........................................................................7,8
State v. McWaters, 246 S.C. 534,
144 S.E.2d 718 (1965)........................................................................7
State v. Rogers, 198 S.C. 273,
17 S.E.2d 563 (1941)........................................................................7,8
State v. White, 348 S.C. 532,
560 S.E.2d 420 (2002)........................................................................12
State v. Wright, 2 Tread. Const. 517..................................................7
Constitution
S.C. Const. art. XVII, §14....................................................................8, 10,11,12,13,16,17
Statutes
Act No. 932, §1, 1940 S.C. Acts 1818.............................................14
Act No. 187, §1, 1967 S.C. Acts 248...............................................15
Act No. 414, §2, 1984 S.C. Acts 1836............................................16
Act No. 117, §3, 1985 S.C. Acts 360.............................................16
Act No. 383, §1, 1996 S.C. Acts 2355............................................16
1942 Code of Laws §2557-10.........................................................14
952 Code of Laws §4.203...............................................................14
1962 Code of Laws §4.203..............................................................14,15,16
1962 Code of Laws §4.203.4...........................................................15,16
S.C. Code §20-7-370........................................................................16
S.C. Code Ann. §20-7-8920 (Cum.Supp. 2005)...........................5,6,7,8,10,11,12,14,16
S.C. Code Ann. §61-4-50 (Cum.Supp. 2006)................................16
S.C. Code Ann. §61-9-40 (1976)....................................................16 Other Authorities
Jean Hoefer Toa1, Shahin Vafai, Robert A. Muckenfuss,
Appellate Practice in South Carolina (2d.ed. 2002) ..............................7
STATEMENT OF ISSUES ON APPEAL
I DID THE CIRCUIT COURT ERR IN HEARING THE STATE'S APPEAL FROM
THE MAGISTRATE COURT, WHERE A DIRECTED VERDICT OF NOT GUILTY
WAS ENTERED IN A CRIMINAL CASE?
II IF THE CIRCUIT COURT DID NOT ERR IN HEARING THE STATE'S
APPEAL, DID THE CIRCUIT COURT ERR IN REVERSING THE
MAGISTRATE'S FINDING THAT THE PROVISIONS OF S. C. CODE ANN.
§20-7-8920 (Cum.Supp.200S) WERE UNCONSTITUTIONAL AS APPLIED TO THE APPELLANT?
STATEMENT OF THE CASE
The Appellant, Charles Jordan Tillinghast, was arrested and charged on February 2, 2005, with the criminal offense of Possession of AlCohol by a Minor, in violation of S.C. Code Ann. §20-7-8920 (Cum.Supp.2005). The alleged offense occurred in Cherokee County, South Carolina, and was heard in the Cherokee County Magistrate Court. On November 18,2005, the Appellant's case was called for trial, and after the State rested its case, the presiding magistrate directed a verdict of not guilty. The presiding magistrate issued a written order on its ruling on December 5, 2005. On December 8, 2005, the State timely filed its Notice of Appeal, which asserted that the presiding magistrate had committed a legal error in directing a verdict of not guilty.
On July 31, 2006, the State's appeal was heard in the circuit court before Judge J. Mark, Hayes, II. Judge Hayes stated he would first address the issue of whether the circuit court had jurisdiction to hear the State's appeal, and if so, then he would address the substantive issue of the correctness of the magistrate's ruling at a later hearing. The state filed a brief in support of its position, and the Appellant submitted a proposed order. On September 6, 2006, Judge Hayes issued a 'Form 4" Order, holding the circuit court had jurisdiction to hear the State's appeal, and directed the State to submit a more detailed order. On September 26, 2006, an 'Order on Jurisdiction" was issued by Judge Hayes. Thereafter, on December 12, 2006, another hearing was held in the circuit court before Judge J. Mark, Hayes, II, to address the substantive issue as to whether the magistrate erred in directing a verdict of not guilty, because the provisions of S.C. Code §20-7-8920 Ann. (Cum.Supp. 2005), were unconstitutional as applied to Appellant. On December 20, 2006, Judge Hayes issued an 'Order," reversing the Magistrate Court. On January 8, 2007, the Appellant timely filed his notice of Appeal. This appeal follows.
ARGUMENT
I THE CIRCUIT COURT ERRED IN HEARING THE STATE'S APPEAL FROM A DIRECTED VERDICT OF NOT GUILTY IN A CRIMINAL CASE.
As noted above, in the Statement of the Case, the Appellant, Charles Jordan Tillinghast, was arrested and charged with the criminal offense of Possession of Alcohol by a Minor, in violation of S.C. Code Ann. §20-7-8920 (Cum.Supp. 2005). At trial, after the state rested its case, the magistrate directed a verdict of not guilty.
It is fundamental law in South Carolina, that the State has no right to appeal from a judgment in favor of the defendant in a criminal case. state v. McKnight, 353 S.C. 238, 577 S.E.2d 456 (2003); Jean Hoefer Toal, Shahin Vafai, and Robert A. Muckenfuss, Appellate Practice in South Carolina (2d.ed. 2002), p. 105-106.
That the State has no right of appeal from a verdict of acquittal in a criminal case has been recognized and accepted as the law of this jurisdiction from the beginning of its judicial history. 1
Accordingly, in a criminal case, there can be no writ of error, appeal, or other proceeding pursued by the state to review or to set aside a directed verdict of not guilty by the court, or a verdict of acquittal by a jury, even though there may have been error committed by the court, or a perverse finding by the jury. State v. McKnight, 353 S.C. 238, 577 S.E.2d 456 (2003); State v. Rogers, 198 S.C. 273, 17 S.E.2d 563 (1941). In its 'Order of Jurisdiction,n the circuit court held that when a directed verdict of not guilty is based upon a legal error, it may be appealed. (Order of Jurisdiction, dated September 26, 2006, ROA p. 50, 53) Based upon the law, as stated above, this was error.
The only time the State may appeal from an acquittal in a criminal case, is when a verdict of acquittal was procured by the accused through fraud or collusion. State v. McKnight, 353 S.C. 238, 577 S.E.2d 456 (2003); state v. Holiday, 255 S.C. 142, 177 S.E.2d 541 (1970). In the matter before the Court, there is no evidence or allegation of fraud or collusion, and therefore the State has no right to appeal from the magistrate's granting of a directed verdict of not guilty.
In its argument before the circuit court, the State candidly acknowledged that it was not pursuing its appeal to reinstate the criminal charge against the Appellant, but rather, to seek a declaration of the correctness of the magistrate's ruling on the constitutionality of the statute under which the Appellant was charged. (Common Pleas Proceedings, July 31, 2006, ROA, p. 25, 1. 7-9) The state urged the circuit court to hear its appeal, based upon the exception to the mootness doctrine. Under the exception argued by the state, and accepted by the circuit court, a moot issue may be appealed where it is a matter of public importance and capable of repetition by evading review. While the circuit court cited several cases in its 'Order on" Jurisdiction," in support of applying this mootness exception to the Appellant's case, none of these cases dealt with an appeal by the state from an acquittal of a defendant in a criminal case. The Appellant is unaware of any case permitting an appeal from an acquittal in a criminal case, based upon any mootness exception. In this instance, the circuit court's final order was not controlling in the case. Because there was no justiciable controversy, the circuit court's opinion was merely advisory. In South Carolina, the courts of this state are without authority to issue advisory opinions. Sloan v. Friends of the Hunley, Inc., 369 S.C. 20, 630 S.E.2d 474 (2006). Therefore, the circuit court erred in applying the mootness exception to the state's appeal.
II IF THE CIRCUIT COURT DID NOT ERR IN HEARING THE STATE'S APPEAL, THE CIRCUIT COURT ERRED IN REVERSING THE MAGISTRATE'S FINDING THAT THE PROVISIONS OF S.C. CODE ANN. §20-7-8920 ANN. (Cum.Supp. 2005) WERE UNCONSTITUTIONAL AS APPLIED TO THE APPELLANT.
The facts in this case are undisputed: (1) the Appellant was lawfully stopped for a traffic violation; (2) the Appellant had in his possession unopened beer; (3) at the time of the traffic stop the Appellant was eighteen years of age; and (4) the Appellant did not claim or assert that he fell under any legal exemption permitting his lawful possession. (Order for Directed Verdict, dated December 5, 2005, ROA p. 2) The Appellant was arrested and charged with Possession of Alcohol by a Minor Under the Age of Twenty-one, in violation of S. C. Code Ann. §20-7-8920 (Cum.Supp.2005), which reads in pertinent part:
(A) It is that it is unlawful for a person under the age of twenty-one to purchase or knowingly possess beer, ale, porter, wine or other similar malt or fermented beverage. Possession is prima facie evidence that it was knowingly possessed.
At the Appellant's trial, the magistrate directed a verdict of not guilty on the charge against the Appellant, finding that the provisions of article XVII, §14, of the South Carolina Constitution prohibited the enforcement of S.C. Code Ann. §20-7-8920 as against the Appellant. The provisions of article XVII, §14, of the South Carolina Constitution, read as follows:
Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one. (1973 (58) 864; 1975 (59) 13.)
The magistrate court reasoned that because the provisions of article XVII, §14, only authorized the General Assembly to restrict the sale of alcohol to persons under the age of twenty-one, that any law restricting or prohibiting possession by a person eighteen years of age (who is sui juris), but less than twenty-one, was in conflict with the South Carolina Constitution. Simply stated, the magistrate concluded that the word 'sale" as used in article XVII, §14, could not be construed to mean 'possession". (Order for Directed Verdict, dated December 5, 2005, ROA pp. 6-7) On appeal, the circuit court reversed the magistrate court, holding that the word 'sale" includes 'possession":2
It is clear by the language of Section 14 that the Constitution intends to allow restrictions on access to alcohol by individuals under the age of twenty-one. That includes the possession of alcohol by individuals under the age of twenty-one.
(Order, dated December 20, 2006, ROA p. 5)
In construing the language of article XVII, §14, as applied to the provisions of S.C. Code Ann. §20-7-8920, the Appellant looks to those basic rules of constitutional construction. The first rule, in order of primacy, is that there is presumption that all acts of the General Assembly are constitutional. State v. White, 348 S.C. 532, 560 S.E.2d 420 (2002); Main v. Thomason, 342 S.C. 79, 535 S.E.2d 918 (2000). In applying this first rule to the Appellant's case, it should be noted that the magistrate did not hold that S.C. Code Ann. §20-7-8920 was unconstitutional, only that the section in question was unconstitutional as applied to the Appellant, a person eighteen years or older. (Order for Directed Verdict, dated December 5, 2005, ROA p. 8) As noted in the magistrate's order, there would be no constitutional infirmity to applying the provisions of S.C. Code Ann. §20-7-8920 to persons under the age of eighteen. (Order for Directed Verdict, dated December 5, 2005, ROA pp. 8-9) Accordingly, the Appellant does not argue that S.C. Code Ann. §20-7-8920 should be struck down as being unconstitutional.
The second rule of constitutional construction, that applies in this case, is that the South Carolina Constitution is a document of limitation, in that it creates· the bodies by which the sovereignty of the people can be exercised, and limits the power of each branch of government. As a document of limitation, the Constitution of South Carolina, where expressly provided, may specifically limit what power the General Assembly may use to enact certain laws. Duncan v. York County, 267 S.C. 327, 228 S.E.2d 92 (1976); Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967) .When applying this rule of construction to the language of article XVII, §14, the clear and unambiguous language of article XVII, §14, is that all persons eighteen years of age or older are vested with full legal rights and responsibilities, with the only exception being that the General Assembly may enact laws restricting the sale of alcohol to persons who are eighteen years of age, but less than twenty-one years of age. The manner in which the sui juris status may be diminished by the General Assembly is expressly limited by the provisions of article XVII, §14. There is no grant of authority permitting the General Assembly to enact laws to further diminish the sui juris standing of any person that is eighteen years of age or older, i.e., to enact laws prohibiting the possession of alcohol by a person eighteen years or older.
The third rule of constitutional construction, that applies in this case, is that courts will apply rules similar to those relating to the construction of statutes. Davis v. County of Greenville, 313 S.C. 459, 443 S.E.2d 383 (1994); Sheppard v. City of Orangeburg, 314 S.C. 240, 442 S.E.2d 601 (1994). This primary rule of statutory or constitutional construction requires that a court give to any word or phrase its clear and ordinary meaningwithout resorting to subtle or forced construction to either limit or expand the provisions of the constitution. A court should not attempt to divine the intent of the legislature when the language used is clear and unambiguous. Gaster v. Evatt, 326 S.C. 33, 483 S.E.2d 197 (1997). Only when the language of the constitution or statute gives rise to doubt or uncertainty as to the intent, may the construing court look beyond the borders of the constitution or statute itself. State v. Baucom, 3"40 S.C. 339, 531 S.E.2d 922(2000) .
The Appellant maintains that the plain and ordinary meaning of the word ~sale" means simply that, to sale. To expand upon the meaning of the word ~sale," to include ~possession" would be to resort to a forced construction. As noted in the magistrate's order, the South Carolina Code of Laws, especially as to criminal offenses, is replete with distinctions between offenses involving a "sale" and "possession". (Order for Directed Verdict, dated December 5, 2005, ROA p. 8)
Without referring to the plethora of other statutes that make the distinction between "sale" and "possession" in criminal offenses, one need look no further than the legislative history of S.C. Code Ann. §20-70-8920.
In 1940, the General Assembly enacted legislation which made it unlawful to sell beer to persons under the age of eighteen years. Act No. 932, §l, 1940 S.C. Acts 1818, subsequently codified at 1942 Code of Laws §2557-l0. The provisions of §2557-l0, were later re-codified in the 1952 and 1962 Code of Laws under §4.203, and until 1967, read as follows:
§4-203. Sale to minor under eighteen years.
It shall be unlawful for any person to sell beer, ale, porter, wine or any other similar malt or fermented beverage to a minor under the age of eighteen years. Any person making such unlawful sale to a minor under the age of eighteen years shall be subject to a fine of from one hundred to two hundred dollars or to imprisonment of from thirty to sixty days, or both, in the discretion of the court. (1952 Code §4-203; 1942 Code §2557-10; 1935 (39) 263; 1940 (41) 1818.)
Notably, the former provisions of §4-203, did not prohibit the purchase or possession of beer by a person under the age of eighteen. Then, in 1967, the General Assembly enacted Act No. 187, §1, 1967 S.C. Acts 248, which amended the provisions of §4.203, to read in pertinent part, as follows:
§4-203.4. Purchase of or possession by minor under eighteen years.
It shall be unlawful for any minor under the age of eighteen years to purchase, or knowingly have in his possession any beer, ale, porter, wine or any other similar malt or fermented beverage. Any such possession shall be prima facie evidence that it was knowingly possessed. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than twenty-five dollars nor more than one hundred dollars or be imprisoned for not more than thirty days.
This section shall not apply employee lawfully engaged in the delivery of any such beverage in an container. (1967 (55) 248.) (emphasis added)
The 1967 amendment to §4.203, made it unlawful, for the first time, for a person under the age of eighteen years to possess beer. The 1967 amendment of §4.203 is the clearest evidence that the General Assembly understood the obvious distinction between the words 'sale" and 'possession". Had the two words been synonymous, as the state argues that logic dictates in this case, there would have been no need for any amendment of §4.203. 3
The language of article XVII, §14 is clear and unambiguous, and therefore the court should give the word 'sale" its plain and ordinary meaning. Even if this court were inclined to examine some other meaning other than that what is expressly stated, the conclusion of the court should still be the same as that of the magistrate court's ruling. It must be presumed that the words used in the South Carolina Constitution were carefully chosen. Ravenel v. Dekle, 265 S.C. 364, 218 S.E.2d 521 (1975). Furthermore, article XVII, §14 should be read in light of the existing law when it was adopted in 1975, when the possession and consumption of beer, wine and other fermented beverages by persons eighteen years or older was lawful, and had been lawful for thirty-five years.
Had the people of this State intended to authorize the General Assembly to prohibit the possession of alcohol by a person eighteen years of age or older, this could have been easily accomplished by merely inserting the words 'and possession", so that the last clause of article XVII, §14, would read: 'that the General Assembly may restrict the sale and possession of alcoholic beverages to persons until age twenty-one." Such words, however, were omitted. In light of the legislative history addressing this same area of the law, it must be assumed that such omission was intentional. There is no iogical reason why such a basic, but significant, distinction could not have been made in the wording of S.C. Const. art. XVII, §14.
To read into the provisions of article XVII, §14 the word 'sale" to include 'possession," is to expand upon the express meaning of the word 'sale," and to summarily grant to the General Assembly by judicial fiat that authority which patently does exist under the provisions of article XVII, §14. Therefore, the circuit court erred in giving an expansive application to the plain and unambiguous language of article XVI I, §14, and reversing the magistrate court's ruling.
CONCLUSION
For the foregoing reasons, the orders of the circuit court should be reversed.
Respectfully Submitted,
TRENT N. PRUETT Pruett Law Firm 202 North Petty Street Gaffney, S.C. 29340 (864) 488-0120 S.C. Bar# 4585 Attorney for the Appellant
May 7, 2007
1 State v. McKnight, 353 S.C. 238, 577 S.E.2d 456 (2003); State v. Holiday, 255 S.C. 142, 177 S.E.2d 541 (1970); State v. McWaters, 246 S.C. 534, 144 S.E.2d 718(1965); State v. Rogers, 198 S.C. 273, 17 S.E.2d 563 (1941);State v. Ludlam, 189 S.C. 69, 200 S.E. 361 (1938); State v. Lynn, 120 S.C. 258, 113 S.E. 74 (1922); State v. Ivey, 73 S.C. 282, 53 S.E. 428 (1906); State v. Gathers, 15 S.C. 370 (1881); State v. Bowen, 4 McCord, 254 (1827);State v. Wright, 2 Tread. Const. 517 (1814).
2 Although the circuit court found that S.C. Code §20-7-8920, did not violate the Equal Protection Clause, the magistrate did not base his ruling on any equal protection claim. Moreover, the Appellant has never raised nor argued an equal protection challenge, and does not do so now.
3 With the adoption of the 1976 Code of Laws, §4.203.4 was initially codified at S.C. Code §61-4-80, before being re-codified at S.C. Code §20-7370. (Provisions relating to the sale of beer were codified at S.C. Code §619-40, now codified at S.C. Code §6l-4-50). In 1984, the General Assembly amended S.C. Code S20-7-370, to raise the age of possession to twenty, and in 1985, it again amended S.C. Code S20-7-370, to raise the age of possession to twenty-one. Act No. 414, S2, 1984 S.C. Acts 1836; Act No. 117, S3, 1985 S.C. Acts 360. In 1996, S.C. Code §20-7-370, was repealed, with the same statutory provisions being re-codified at S.C. Code §20-7-8920. Act No. 383, SI, 1996 S.C. Acts 2355.
CERTIFICATE OF COUNSEL
Pursuant to Rule 211, of the South Carolina Rules of Appellate Court Procedure, the undersigned that this Final Brief of Appellant
complies with Rule 211 (b), of the South Carolina Rules of Appellate Court Procedure.
May 7, 2007
Respectfully Submitted,
TRENT N. PRUETT Pruett Law Firm 202 North Petty Street Gaffney, S.C. 29340 (864) 488-0120 S.C. Bar# 4585 Attorney for the Appellant