STATE v. GOLDENBAUM

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Docket Number

22841

Attorney(S)

Deputy Chief Atty. Elizabeth C. Fullwood, of S.C. Office of Appellate Defense, Columbia, for appellant. Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia; and Solicitor Charles M. Condon, Charleston, for respondent.

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Smart Summary

Factual and Procedural Background

Appellant Robert M. Goldenbaum was convicted of first degree burglary and attempted first degree criminal sexual conduct. The incident occurred in an apartment complex where appellant and his wife lived across the hall from the victim. The victim was awakened late at night by a knife-wielding assailant standing over her. During a prolonged struggle, the victim heard a knock at her door and, upon opening it, saw appellant's wife. The victim warned her not to enter because the attacker was inside. Despite this, appellant's wife entered the apartment, turned on the lights, and left with appellant. The victim positively identified appellant as the assailant. The knife used was described as a "sporting type knife," and appellant was found with a "lock blade" knife when arrested later that night.

On appeal, appellant challenged the trial court's refusal to instruct the jury on second and third degree burglary, arguing that the apartment qualified as both a "building" and a "dwelling" under the burglary statutes. The trial court had only instructed on first degree burglary.

Legal Issues Presented

Whether the trial judge erred in refusing to instruct the jury on the elements of second and third degree burglary when appellant was charged with first degree burglary.

Arguments of the Parties

Appellant's Arguments

The apartment where the offense occurred fits the statutory definitions of both "building" and "dwelling."
Because "dwelling" is encompassed within "building," appellant contended that the jury should have been instructed on all three degrees of burglary.

Respondent's Arguments

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976)	A trial judge's determination of what law to charge is based on the evidence presented.	The court applied this principle to affirm that the trial judge properly declined to instruct on lesser offenses because the evidence did not support them.
State v. Pressley, 292 S.C. 9, 354 S.E.2d 777 (1987)	A request to charge on a lesser included offense is properly refused when there is no evidence supporting that lesser offense.	The court used this precedent to justify refusal of jury instructions on second and third degree burglary due to lack of supporting evidence.
State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987)	Same as Pressley: refusal to charge lesser offenses without evidentiary support.	Reinforced the court's decision that no instruction on lesser burglary degrees was warranted.

Court's Reasoning and Analysis

The court analyzed the statutory definitions of burglary degrees under South Carolina law. First degree burglary requires entry into a "dwelling" without consent with intent to commit a crime plus an aggravating circumstance. Second degree burglary encompasses either entry into a "dwelling" without aggravating circumstances or entry into a "building" with aggravating circumstances. Third degree burglary involves entry into a "building" without aggravating circumstances.

The court found that the victim's apartment was indisputably a "dwelling," a specific type of "building" used for living quarters. Because the only factual dispute was the identity of the assailant, not the nature of the structure entered, there was no evidence supporting a lesser degree burglary charge. The trial judge's refusal to instruct the jury on second and third degree burglary was therefore proper.

The court relied on established precedent that jury instructions on lesser included offenses are only required when evidence supports such charges. Since no evidence indicated the crime was anything other than first degree burglary, lesser instructions were not warranted.

Holding and Implications

The Supreme Court of South Carolina affirmed the convictions of first degree burglary and attempted first degree criminal sexual conduct.

The direct effect of this decision is to uphold the trial court's jury instructions and the appellant's convictions. The court did not establish new precedent beyond reaffirming existing principles regarding jury instructions on lesser included offenses and statutory interpretation of burglary degrees.

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The STATE, Respondent v. Robert M. GOLDENBAUM, Appellant.

Heard Jan. 4, 1988.

Decided Feb. 22, 1988.

HARWELL, Justice:

Appellant was convicted of first degree burglary and attempted first degree criminal sexual conduct. On appeal, he argues that the trial judge erred in refusing to instruct the jury on the elements of second and third degree burglary. We disagree and affirm the convictions.

Appellant and his wife lived across the hall from the victim in an apartment complex. The victim was awakened late one night by a knife-wielding man standing over her. During the loud, lengthy struggle to fend off the man's sexual attack, the victim heard a knock at her apartment door. She broke free, opened the door, and found appellant's wife there. The victim begged for help and warned appellant's wife not to enter the apartment because the assailant was still inside. The victim then ran across the hall and watched as appellant's wife entered victim's apartment, turned on the lights, and walked out with appellant. The victim immediately positively identified appellant as the assailant. In her statement to police, the victim identified the knife used during the attack as "a sporting type knife." When he was arrested later that night, appellant had a "lock blade" knife in his pocket.

The trial judge instructed the jury only on the elements of first degree burglary; he denied appellant's requested instructions on second and third degree burglary.

The statutory law of burglary was substantially rewritten by Act No. 159, 1985 S.C. Acts 603, codified at S.C. Code Ann. Sections 16-11-310 to 16-11-313 (Supp. 1987). First degree burglary is now defined as the entry of "a dwelling without consent and with intent to commit a crime therein" and the existence of an aggravated circumstance. § 16-11-311 (emphasis added). Second degree burglary consists of (1) entry of "a dwelling without consent and with intent to commit a crime therein," but absent any aggravating circumstance; or (2) entry of "a building without consent and with intent to commit a crime therein" and the existence of an aggravating circumstance. § 16-11-312 (emphasis added). Third degree burglary is defined as "enter[ing] a building without consent and with the intent to commit a crime therein," with no aggravating circumstances. § 16-11-313 (emphasis added).

A "building" is defined as "any structure . . . (a) [w]here any person lodges or lives; or (b) [w]here people assemble for purposes of business, government, education . . . ." § 16-11-310(1). Section 16-11-10 (1976) defines "dwelling" as "any house, outhouse, apartment, building . . . where there sleeps a . . . person who lodges there with a view to the protection of property . . . ." Section 16-11-310 (Supp. 1987) incorporates this definition and provides that "dwelling . . . also means the living quarters of a building which is used or normally used for sleeping, living or lodging by a person." A "dwelling" is, therefore, a more specific form or portion of a "building."

Appellant argues that the apartment in which the offense was committed fits the statutory definitions of both "building" and "dwelling," so the trial judge should have instructed the jury on the elements of all three degrees of burglary. He asserts that under the statute one who commits burglary in the first degree also commits burglary in the second and third degrees because the term "dwelling" is encompassed within the term "building."

We find no error in the refusal to charge second and third degree burglary here. The only factual dispute before the jury was the assailant's identity. No evidence existed here to create a factual dispute as to what type structure was entered. The victim's apartment was unquestionably a "dwelling" — "the living quarters of a building." § 16-11-310 (Supp. 1987).

A trial judge's determination of what law should be charged is made from the evidence presented. State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976). A request to charge on a lesser included offense is properly refused when there is no evidence that the defendant committed the lesser rather than the greater offense. State v. Pressley, 292 S.C. 9, 354 S.E.2d 777 (1987); State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987). There was no evidence here from which the jury could infer that appellant committed second or third rather than first degree burglary. The second and third degree burglary charges were, therefore, properly refused.

Appellant's remaining exceptions are meritless and disposed of under Supreme Court Rule 23. Accordingly, the judgment of the circuit court is

Affirmed.

NESS, C.J., and GREGORY, CHANDLER and FINNEY, JJ., concur.