THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Bobby Shannon  Thomas,        Appellant.

Appeal From Florence County
B. Hicks Harwell, Jr., Circuit Court Judge

Unpublished Opinion No. 2003-UP-219
Submitted January 10, 2003 – Filed March 20, 2003  

AFFIRMED

Assistant Appellate Defender Tara S. Taggart, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, of Columbia; for Respondents.

GOOLSBY, J.:  Bobby Shannon Thomas pled guilty to criminal sexual conduct with a minor in the first degree, assault and battery with intent to kill, kidnapping, two counts of unlawful conduct towards a child, committing a lewd act on a child, and second-degree burglary.  On appeal, Thomas alleges the trial court lacked subject matter jurisdiction over the two charges concerning unlawful conduct towards a child and seeks to have his convictions and sentences on those counts vacated.  He further seeks to have his guilty pleas set aside in their entirety, arguing they were involuntary, unknowing, and unintelligent.  We affirm. [1]

FACTS

In July 2001, the Florence County Grand Jury indicted Thomas for criminal sexual conduct with a minor in the first degree, assault and battery with intent to kill, kidnapping, and two counts of unlawful conduct towards a child.  This indictment resulted from allegations that Thomas had strapped a nine-year-old boy in a hot, unattended car while he sexually assaulted the child’s seven-year-old sister and then later abandoned both children. 

In January 2002, the Florence County Grand Jury issued another indictment against Thomas, charging him with first-degree burglary and committing a lewd act on a minor.  Those charges stemmed from allegations by his estranged wife that he had molested his stepdaughter (her daughter from a prior relationship) from April 1, 2001, through June 19, 2001, inclusive, and that, on June 30, 2001, after the couple had separated and the family court had issued a protective order giving Mrs. Thomas sole possession of the marital residence, he tried to enter the residence through a back window.

On February 2, 2002, Thomas, while accompanied by his attorney, pled guilty as charged, with the exception of the first-degree burglary offense, which was reduced to second-degree burglary.  After taking his plea and hearing from counsel, an investigator, a victim’s advocate, and Thomas’s mother, the trial court gave Thomas maximum consecutive sentences on all charges for a total active sentence of one hundred thirty years. 

DISCUSSION

1.  We find no merit to Thomas’s argument that the trial court lacked subject matter jurisdiction for two counts of unlawful conduct towards a child.

With regard to the two counts of unlawful conduct towards a child, the indictment read as follows:

That BOBBY THOMAS did in FLORENCE County on or about July 6, 2001, violate Section 20-7-50 of the Code of Laws for the State of South Carolina (1976), as amended, in that he did, while being given charge over the victim, . . . a seven years old child, and being responsible for her welfare did assault her with intent to kill her and violently rape her.

That BOBBY THOMAS did in FLORENCE County on or about July 6, 2001, violate Section 20-7-50 of the Code of Laws for the State of South Carolina (1976), as amended, in that he did, while being given charge over the victim, . . . a nine year old child, strapped the said [victim] in a hot, unattended car and told him to stay there, while he took his seven year old sister, . . . into the house, assaulted her; returning then to get him out of the car and left and abandoned him and his sister.

South Carolina Code section 20-7-50 provides in pertinent part as follows:

(A) It is unlawful for a person who has charge or custody of a child, or who is the parent or guardian of a child, or who is responsible for the welfare of a child as defined in Section 20-7-490(5) to:

(1) place the child at unreasonable risk of harm affecting the child’s life, physical or mental health, or safety;

(2) do or cause to be done unlawfully or maliciously any bodily harm to the child so that the life or health of the child is endangered or likely to be endangered;  or

(3) wilfully abandon the child. [2]

Section 20-7-490, to which the above statute refers, includes several different ways that an adult would be considered “one who is responsible for the welfare of the child.” [3]   It is undisputed that the only criterion that could conceivably apply to Thomas in this case would be as “an adult who has assumed the role or responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child.” [4]   The legislature qualified this definition, however, by providing that “[a] person whose only role is as a caregiver and whose contact is only incidental with a child, such as a babysitter or a person who has only incidental contact but may not be a caretaker, has not assumed the role or responsibility of a parent or guardian.” [5]

Thomas argues that, with regard to both counts of unlawful conduct towards a child, the indictment was defective in that it “failed to allege a legal status sufficient to support a conviction.”  He asserts that the phrases “being given charge” and “being responsible for her welfare” fall short of alleging he had assumed the role or responsibility of a parent of guardian and, because the subarticle in which section 20-7-50 appears is limited in its application to children and the people in whom their care is entrusted on an ongoing basis and does not extend to a person whose “only role is as a caregiver and whose contact is only incidental with a child, such as a babysitter or a person who has only incidental contact,” the indictment did not adequately state the offense for either count.  We disagree with this reasoning.

The South Carolina General Assembly has provided that an indictment is sufficient if it

charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided. [6]

Furthermore, “the true test of the sufficiency of an indictment is whether it contains the necessary elements of the offense intended to be charged and sufficiently appraises the defendant of what he must be prepared to meet.” [7]   Moreover, “[t]he offense intended to be charged must be described with sufficient particularity that conviction or acquittal thereupon may be pleaded in bar to any subsequent prosecution.” [8]   

In State v. Bermudez, [9] the appellant argued that an indictment charging him with second-degree criminal sexual conduct should have been quashed because the victim was his wife and the indictment failed to allege that they were living separately and apart pursuant to a court order.  The supreme court disagreed, stating:  “An exception to a criminal offense must be negatived in the indictment only if the language of the exception must be regarded as descriptive of the offense.  If not, the exception is a matter of defense and need not be negatived in the indictment.” [10]   The supreme court further held the interspousal immunity exception to the criminal sexual conduct statute was “not a part of the description of the offense of CSC, but is a matter of defense,” [11] and the failure to negate this exception did not warrant quashing the indictment. 

We find the reasoning in Bermudez applicable to the present case as well as consistent with general case law. [12]   Here, the indictment at issue alleged that Thomas committed unlawful acts towards two children while they were in his care.  It would have been up to him to assert that his role as their caretaker was incidental and did not rise to the level of a parent or guardian.  We therefore hold the trial court had jurisdiction to accept his guilty pleas to the two counts of unlawful conduct towards a child.

2.  Thomas further seeks to set aside his guilty plea in its entirety based on the alleged invalidity of his pleas to the two counts involving unlawful acts towards a child.  He asserts that, because these two counts were improperly before the trial court, his entire guilty plea was rendered involuntary, unknowing, and unintelligent.  Because we have held the indictment in question sufficiently stated those two counts, it follows that those charges were properly before the trial court and could not have rendered his pleas to the other offenses involuntary, unknowing, or unintelligent.

AFFIRMED.

HEARN, C.J., and SHULER, J., concur.