State v. Lewis ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
William D. Lewis, Appellant.
Appellate Case No. 2019-001815
Appeal from Greenville County
G. Thomas Cooper, Jr., Circuit Court Judge
Opinion No. 28051
Heard March 2, 2021 – Filed August 11, 2021
AFFIRMED
Clarence Rauch Wise, of Greenwood, for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General Mark Reynolds Farthing, of
Columbia; Solicitor Kevin Scott Brackett, of York, all for
Respondent.
JUSTICE HEARN: William Lewis, the former Sheriff of Greenville County, asks
us to hold the 1829 statute under which he was convicted for misconduct in office
relating to a sexual affair with an employee, void for vagueness. Specifically, he
asserts that Section 8-1-80 of the South Carolina Code (2019),1 is unconstitutional
1
Although minor amendments have been made to the statute, it is essentially the
same as it was originally enacted nearly two hundred years ago:
because it proscribes "official misconduct, corruption, fraud, or oppression" without
defining those terms, and he also claims he was entitled to a directed verdict. We
affirm.
FACTUAL/PROCEDURAL BACKGROUND
Will Lewis was elected sheriff of Greenville County in the 2016 general
election after defeating the fourteen-year incumbent, Steve Loftis, in the primary
election. Lewis hired Savannah Nabors, age twenty-two, with whom he had
previously worked at a local law firm, to be his administrative coordinator during
the transition period before being sworn into office. Nabors managed Lewis's
scheduling, responded to emails, answered phone calls, and accompanied him to
luncheons, meetings, and other business events. Nabors—whose starting salary was
$62,000—was hired with no law enforcement experience and without the
submission of a résumé or an interview. Nevertheless, she was provided with
numerous benefits, including a new 2017 Ford Explorer equipped with a special
"police package," an assigned parking place close to Lewis, a cell phone, an iPad,
and a computer. Her receipt of a new Ford Explorer was particularly unusual
because civilian employees typically were not provided with vehicles. In addition
to her salary being more than double the starting salary of a new deputy, she received
other "perks" at Lewis's direction, including participating in the BMW Performance
Driving School, repelling and shooting with the SWAT team, and being fitted with
a custom bulletproof vest. Basically, Nabors travelled with Lewis nearly
everywhere he went, and at one point, Lewis told his deputies that Nabors was "off
limits" to them.
In February 2017, Nabors told Lewis she was having marital difficulties and
that she and her husband planned to divorce. Later that same evening, Lewis advised
Nabors she would be accompanying him to an out-of-town meeting to discuss the
budget with county officials. He indicated the meeting would be in either Atlanta or
Any public officer whose authority is limited to a single election or
judicial district who is guilty of any official misconduct, habitual
negligence, habitual drunkenness, corruption, fraud, or oppression
shall be liable to indictment and, upon conviction thereof, shall be fined
not more than one thousand dollars and imprisoned not more than one
year.
Charlotte, and asked her which she preferred. Ultimately, Nabors accompanied
Lewis, another individual from the sheriff's office, and three county officials to
Charlotte for budget discussions on March 7-9, 2017. This was the first time the
sheriff's office had met outside Greenville to discuss the budget. Lewis picked up
Nabors from her house, and the two drove to Charlotte together. Upon arriving,
Lewis placed a bottle of liquor in her luggage and told her that he would retrieve it
later.2 Once all six individuals arrived in Charlotte, the group had appetizers and
drinks at the hotel bar, and then went downtown for more drinks.
While the exact details of the events were disputed at trial, both Lewis and
Nabors stated a sexual encounter occurred once the two arrived back at the hotel
later that first night. Nabors contended Lewis went to her room to retrieve his liquor
bottle so they could have a "nightcap." According to Nabors, Lewis sat next to her
on a couch, placed his arm around her, and tried to kiss her. The next thing she
remembered was waking up in bed with Lewis on top of her engaging in sexual
intercourse. Nabors testified she went to his room afterwards but returned sometime
after 7:00 a.m. Conversely, Lewis testified the encounter was consensual, and that
it was Nabors who moved toward him until they kissed. Lewis stated after they had
sex, he immediately regretted it and returned to his room alone for the rest of the
night.
The following day consisted of morning and afternoon budget meetings.
Nabors did not attend the morning session, but joined the group in the afternoon
meeting. However, she never took notes even though Lewis testified that was her
responsibility and part of the reason for her attending. Later that evening, the group
again had dinner and drinks. According to Nabors, Lewis left the group at one point,
walked to CVS, and returned with a bottle of lubricant that he displayed to her,
asking, "Which room, yours or mine?" Nabors responded, "Neither."
Nabors testified that Lewis again came to her room after texting her at 3:55
a.m. Upon opening the door, Lewis entered, apologized, and asked to stay with her
because he did not want to be alone. Nabors testified she allowed Lewis to stay in
her bed and at some time during the night, she woke up to Lewis digitally penetrating
2
Lewis contended he placed a bottle of Jack Daniels on top of her travel bag because
he did not think it would be best for a sheriff to be seen with it. Conversely, Nabors
testified he placed it inside her bag, and the State argued he did so in order to have
a reason to visit her room later that night.
her. Lewis denied purchasing lubricant or going to her room the second night,3 and
he contended nothing sexual happened other than the consensual encounter the first
night. The group left Charlotte the next morning and returned to Greenville.
Over the course of the next six weeks, Nabors testified that Lewis acted
appropriately at times but on other occasions, he continued to pursue a relationship
with her. At one point, Lewis wanted to retrieve a pressure washer he had loaned
Nabors, so she arranged for him to pick it up when she would not be home. To give
him plenty of time to retrieve the washer, Nabors testified she drove to Chick-Fil-A.
Lewis called her, and although he asked her where she was, when she looked in her
rearview mirror, she saw him directly behind her in the drive-through line. As Lewis
proceeded to follow Nabors home, she began recording their conversation. During
that conversation, Lewis asked Nabors to join him in Reno for a sheriff's conference.
However, Lewis stated that while the department would pay for two plane tickets, it
would only pay for one hotel room, so Nabors would have to share a room with him.
Nabors hedged, explaining it would not look good "on paper" for the two of them to
share a room. Eventually, Lewis told Nabors he wanted her to join him in Reno so
the two could "roll around in the bed together," sit around, and drink on "company
time." After Nabors indicated she preferred their relationship to be nonsexual, Lewis
responded that was "fine" but there would have to be changes, including her not
accompanying him to meetings and other places for work. Nabors tendered her
resignation on April 24, 2017.
In August of 2017, Nabors detailed the Charlotte trip in a personal blog and
accused Lewis, although not specifically by name, of improprieties. Thereafter, she
filed a civil lawsuit accompanied with several of the previously recorded
conversations. Lewis held a press conference in October 2017 and admitted to the
affair, but denied allegations of assault, rape, or stalking, maintaining the encounter
was consensual.
3
In response to Lewis's outright denial, the State introduced as impeachment
evidence a portion of his deposition taken in a civil case filed by Nabors that was
eventually settled. There, Lewis stated he did not recall whether he had purchased
lubricant. At trial, his response shifted to a complete denial, and he indicated he
went to CVS to buy Advil because he always suffered headaches when he stayed at
a hotel. Lewis also denied texting Nabors at 3:55 a.m. despite phone records
indicating a text to her from his phone stating, "Me." On cross-examination, Lewis
speculated that Nabors may have sent the text herself because his phone was linked
to her iPad.
Following a SLED investigation, Lewis was indicted in April 2018 for
common law misconduct in office and obstruction of justice. Lewis filed a motion
to quash the indictments, arguing they did not sufficiently place him on notice of the
charges against him. In February and March of 2019, Lewis was indicted for
statutory misconduct of a public officer and perjury, and superseding indictments
for the two prior charges were also issued. Lewis sought to have these indictments
quashed as well, contending they were vague and that the terms listed in section 8-
1-80 were undefined, leaving a public official to speculate as to the prohibited
conduct. The trial court held a hearing in June of 2019 and quashed one count each
of the misconduct charges as being repetitive but upheld the remaining five counts.
The court did not expressly rule on the constitutionality of section 8-1-80.
The State elected to pursue one count each of common law misconduct in
office and misconduct by a public officer under section 8-1-80. At trial, Lewis
renewed his objections to the indictments before the jury was sworn, and after the
State rested, he argued both offenses were vague and overly broad and that there was
no evidence of fraud. The court denied Lewis's motion. During the charge
conference and ensuing jury instructions, Lewis objected to the terms of section 8-
1-80 as being vague and overly broad. Ultimately, the jury acquitted Lewis of
common law misconduct in office, but found him guilty of statutory misconduct of
a public officer. The trial court sentenced Lewis to the maximum one-year
imprisonment but granted his motion for an appeal bond approximately two weeks
later. Lewis filed his appeal in this Court because of the substantial constitutional
issue presented. See Rule 203(d)(1)(A)(ii), SCACR.
ISSUES
I. Is Section 8-1-80 unconstitutionally vague when the statute does not define
"official misconduct," "corruption," "fraud," or "oppression"?
II. Did the trial court err in failing to quash the indictment charging statutory
misconduct of a public officer?
STANDARD OF REVIEW
This Court's review of whether a statute is constitutional is limited. State v.
Simmons, 430 S.C. 1, 9, 841 S.E.2d 845, 849 (2020), reh'g denied (May 22, 2020).
Further, statutes are presumed constitutional and will not be set aside unless the party
challenging the provision demonstrates "its repugnance to the constitution is clear
beyond a reasonable doubt." In re Stephen W., 409 S.C. 73, 76, 761 S.E.2d 231, 232
(2014).
In criminal cases, the appellate court sits to review errors of law only. State
v. Baker, 411 S.C. 583, 588, 769 S.E.2d 860, 863 (2015). Finally, on appeal from
the denial of a directed verdict, an appellate court views all facts in the light most
favorable to the nonmoving party. State v. Weston, 367 S.C. 279, 292, 625 S.E.2d
641, 648 (2006). "When ruling on a motion for a directed verdict, the trial court is
concerned with the existence or nonexistence of evidence, not its weight." Id.DISCUSSION
I. Constitutionality of Section 8-1-80
Lewis contends section 8-1-80 is unconstitutionally vague because it does not
define the terms listed, encourages arbitrary enforcement, and fails to put a
reasonable person on notice of what conduct is prohibited. Conversely, the State
argues Lewis does not have standing to challenge the statute on vagueness grounds
because the terms in section 8-1-80 clearly apply to his conduct.4 Additionally, the
State asserts the terms employed have recognized legal meanings, thereby
adequately informing public officials of prohibited conduct. The State further
contends the statute is not unconstitutionally overbroad because the provision does
not implicate private conduct or speech. We agree with the State.
Section 8-1-80 provides for the criminal liability of any public officer who is
guilty of official misconduct, habitual negligence, habitual drunkenness, corruption,
fraud, or oppression and authorizes the imposition of a fine of up to $1000 and
imprisonment of no more than one year, exactly as it did when enacted in 1829. S.C.
Code Ann. § 8-1-80 (2019) (emphasis added).5 While the italicized terms are
undefined, when analyzing a statute for vagueness, the inquiry focuses on two
independent grounds: whether the provision "fails to give ordinary people fair notice
of the conduct it punishes, or [is] so standardless that it invites arbitrary
4
As a threshold concern, the State contends Lewis's constitutional argument is not
preserved for review because the trial court did not expressly rule on the issue. We
disagree, as both parties and the trial court were well aware that the basis of Lewis's
objections concerned the statute's failure to define the conduct giving rise to criminal
liability.
5
Habitual negligence and habitual drunkenness were not issues in this case and
therefore not charged to the jury.
enforcement." Johnson v. United States, 576 U.S. 591, 595 (2015); City of Chicago
v. Morales, 527 U.S. 41, 56 (1999) ("Vagueness may invalidate a criminal law for
either of two independent reasons."). Simply because a statute uses undefined terms
or could have been drafted more precisely does not render it unconstitutionally
vague. Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) ("Words inevitably
contain germs of uncertainty."). Instead, to satisfy due process concerns, a statute
must be sufficiently definite to enable a person of common intelligence to not have
to guess as to its meaning. State v. Green, 397 S.C. 268, 280, 724 S.E.2d 664, 670
(2012) (upholding our criminal solicitation of a minor statute in the face of a
vagueness challenge because a person of "common intelligence would not have to
guess at what conduct is prohibited by the statute"). Further, when a provision is
sufficiently clear as to the conduct it proscribes, "the speculative danger of arbitrary
enforcement [will] not render the ordinance void for vagueness." Vill. of Hoffman
Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 503 (1982).
Additionally, "'one to whose conduct the law clearly applies does not have
standing to challenge it for vagueness' as applied to the conduct of others." In re
Amir X.S., 371 S.C. 380, 391, 639 S.E.2d 144, 150 (2006) (quoting Vill. of Hoffman
Estates, 455 U.S. at 495); Centaur, Inc. v. Richland Cty., 301 S.C. 374, 382, 392
S.E.2d 165, 170 (1990) (stating an operator of an adult bookstore did not have
standing to challenge whether a county ordinance regulating sexually oriented
businesses was unconstitutionally vague because the ordinance clearly applied to the
operator's business). Stated differently, a litigant is barred from raising a facial
challenge based on vagueness when his conduct clearly falls within the province of
the statute. S.C. Dep't of Soc. Servs. v. Michelle G., 407 S.C. 499, 507, 757 S.E.2d
388, 393 (2014) ("[W]hen raising a claim of unconstitutional vagueness, the litigant
must demonstrate that the challenged statute is vague as applied to his own
conduct, regardless of its potentially vague application to others.").
We hold that section 8-1-80 contains terms with settled legal meanings,6 and
the statute clearly applies to the conduct at issue here. The State theorized that Lewis
6
We have noted, "[i]n ascertaining the meaning of language used in a statute, we
presume the General Assembly is 'aware of the common law, and where a statute
uses a term that has a well-recognized meaning in the law, the presumption is that
the General Assembly intended to use the term in that sense.'" Grier v. AMISUB of
S.C., Inc., 397 S.C. 532, 536, 725 S.E.2d 693, 696 (2012) (quoting State v.
Bridgers, 329 S.C. 11, 14, 495 S.E.2d 196, 198 (1997)). Accordingly, we find the
definitions contained in Black's Law Dictionary instructive. See BLACK'S LAW
DICTIONARY (11th ed. 2019) (defining "corruption" as "[a] fiduciary's or official's
hired Nabors at an excessive salary and groomed her in order to pursue an affair.
Throughout trial, evidence painted a picture of corruption and misconduct that
predates our statutory misconduct statute.7 The linchpin of the State's case was that
Lewis utilized the public fisc to curry sexual favors with Nabors and then threatened
consequences when his advances were rejected. To prove this, the State relied on
Lewis's own recorded words, where, upon learning Nabors would not continue a
sexual relationship with him, he replied: "I mean they'll [sic] be some changes. I
mean we'll have to make some changes."
We also find meritless Lewis's reliance on harmless hypotheticals which
arguably implicate the statute. Rather than considering, for example, whether using
a government-issued cell phone for all personal as well as business calls would
qualify as "official misconduct" or "corruption," our inquiry is focused solely on
whether Lewis's conduct clearly falls within the statute. We note that the United
States Supreme Court, in addressing a federal circuit's use of "unproblematic
use of a station or office to procure some benefit either personally or for someone
else, contrary to the rights of others; an act carried out with the intent of giving some
advantage inconsistent with official duty or the rights of others"); id. (defining
"official misconduct" as "[a] public officer's corrupt violation of assigned duties by
malfeasance, misfeasance, or nonfeasance"); id. (defining "fraud" as "[a] knowing
misrepresentation or knowing concealment of a material fact made to induce another
to act to his or her detriment" and noting it can be criminal, especially "when the
conduct is willful"); id. (defining "oppression" as "[t]he act or an instance of unjustly
exercising authority or power so that one or more people are unfairly or cruelly
prevented from enjoying the same rights that other people have" or "[a]n offense
consisting in the abuse of discretionary authority by a public officer who has an
improper motive, as a result of which a person is injured").
7
As the Ninth Circuit has aptly recognized, this pattern of behavior in exchange for
sexual gratification dates back centuries, and was also even portrayed in one of
William Shakespeare's most famous plays—Measure for Measure. See People of the
Territory of Guam v. Camacho, 103 F.3d 863, 867 (9th Cir. 1996) ("Official
misconduct can be criminal when advantages other than money accrue to the public
servant in the wrongful exercise of office. That sexual gratification should be
prominent among these other advantages is not merely characteristic of our society;
it reflects a long tradition in the misuse of authority. The most famous play in
English on the subject, Shakespeare's Measure for Measure, turns on officeholder
Angelo's attempt to secure the seduction of the innocent Isabella. Angelo's feigned
use of his power to pardon Isabella's brother in order to get her consent is official
misconduct.").
hypotheticals" as a means of finding a law governing child pornography
unconstitutionally vague, stated:
[T]he Eleventh Circuit's error is more fundamental than merely its
selection of unproblematic hypotheticals. Its basic mistake lies in the
belief that the mere fact that close cases can be envisioned renders a
statute vague. That is not so. Close cases can be imagined under
virtually any statute. The problem that poses is addressed, not by the
doctrine of vagueness, but by the requirement of proof beyond a
reasonable doubt.
United States v. Williams, 553 U.S. 285, 305–06 (2008). Accordingly, regardless of
whether one could envision close cases that might sufficiently tip the scale to carry
the vagueness challenge across the constitutional finish line, Lewis's argument
concerning other, innocuous conduct which could come within the sweep of the
statute is unavailing where the conduct here clearly falls within that prohibited by
section 8-1-80.8
8
Lewis also contends the trial court erred in declining to direct a verdict on the issue
of fraud, which is one of the grounds listed in section 8-1-80. Importantly, Lewis
did not challenge the sufficiency of the evidence as to the other three grounds
charged to the jury—official misconduct, corruption, or oppression. We note that
although the concurrence characterizes the alleged error in terms of the trial court's
failure to define the meaning of fraud to the jury, the lens through which we view
Lewis's assignment of error is whether there was sufficient evidence to support the
jury's verdict. Following the State's case, defense counsel argued the statutory
misconduct in office charge should not go to the jury, and after argument from both
parties, the trial court concluded:
I think there's evidence that goes beyond mere conjecture or suspicion,
and that evidence, either direct or circumstantial, or some combination
of both which reasonably intends [sic] to prove the guilt of the
defendant, or from which that guilt might be logically and reasonably
deduced, if that evidence is taken in the light most favorable to the
State, so as to your second motion, I must respectfully deny that motion
also.
During the charge conference, the trial court asked the parties more specifically
about fraud, and Lewis's counsel responded that there was no evidence of a
misrepresentation. The State countered by reciting evidence of what it believed was
II. Sufficiency of the Indictment
fraud, and the trial court agreed to charge fraud to the jury. We believe counsel's
argument, as understood by the trial court, was in the context of the sufficiency of
the evidence. Further, in his brief before this Court, Lewis requests we enter a
judgment of acquittal based on the State's failure to prove fraud and argues the case
should not be remanded for a new trial, which would be the appropriate remedy for
an erroneous jury charge. The relief requested by Lewis therefore bolsters our view
that the error alleged involved the sufficiency of the evidence rather than a faulty
jury instruction. Because we believe the jury's verdict was amply supported on other
grounds submitted to the jury without objection—official misconduct, corruption,
and oppression—any error in submitting the ground of fraud would not affect the
integrity of the verdict. See Griffin v. United States, 502 U.S. 46, 50, 112 S. Ct.
466, 469, 116 L. Ed. 2d 371 (1991) (affirming a conviction based on an indictment
alleging multiple grounds in a conspiracy charge where one of the grounds was valid
despite no evidence supporting the remaining basis). In Griffin, the Supreme Court
noted, "[i]t was settled law in England before the Declaration of Independence, and
in this country long afterwards, that a general jury verdict was valid so long as it was
legally supportable on one of the submitted grounds—even though that gave no
assurance that a valid ground, rather than an invalid one, was actually the basis for
the jury's action." Id. at 49. Indeed, Justice Scalia noted precedent dating back to the
eighteenth century where Lord Mansfield, Chief Justice of the King's Bench,
explained, "that if there is any one count to support the verdict, it shall stand good,
notwithstanding all the rest are bad." Id. (quoting Claassen v. United States, 142
U.S. 140, 146 (1891) (other citations omitted)). While Lord Mansfield may have
applied the rule to multiple count indictments, Justice Scalia discussed how its
application evolved into other contexts, including "the analogous situation at issue
here: a general jury verdict under a single count charging the commission of an
offense by two or more means." Id. at 50. That is precisely what we have here: a
single count before the jury alleging four grounds supporting a violation of section
8-1-80. While the concurrence accurately explains the dichotomy between a
challenge to the sufficiency of the evidence, see Griffin, versus one raising legal
issues, see Yates v. United States, 354 U.S. 298, 312 (1957) (overruled on other
grounds by Burks v. United States, 437 U.S. 1, 8 (1978)), because we view Lewis's
argument as challenging the sufficiency of the evidence, we reject the concurrence's
reasoning as to why Griffin does not apply. Therefore, we need not address whether
the trial court was correct in submitting fraud to the jury.
Lewis also contends the indictment for misconduct of a public officer does
not sufficiently notify him of the basis of the charge. He repeats his argument that
the terms listed in section 8-1-80, which were also listed in the indictment, are overly
vague and therefore do not indicate what conduct Lewis was called upon to defend
at trial. Further, Lewis asserts while the indictment sufficiently alleges the "who,"
"what," and "where" of the offense, it is not specific as to the "when" and "how."
Specifically, Lewis argues the indictment does not specify how he "misused public
resources," and the timeframe is overly broad. Conversely, the State asserts the
indictment, when viewed with a practical eye, should be upheld, especially
considering that misconduct by a public official can be committed in various ways.
We agree with the State.
The indictment at issue alleged:
William D. Lewis did, on or about January 3, 2017, through April 17,
2018, commit the crime of Misconduct of a Public Officer. During the
above listed dates, William D. Lewis was the Greenville County Sheriff
who is a public officer whose authority is limited to the single election
district of Greenville County, South Carolina. William D. Lewis
committed the crime of misconduct of a public officer by performing
acts of official misconduct, habitual negligence, corruption, fraud, or
oppression. To wit:
Count One
William D. Lewis did, from the date he took office through April 24,
2017, misuse public resources and abuse the power and authority of his
office for the corrupt purpose of pursuing or facilitating an adulterous
relationship.
The primary purpose of an indictment is threefold: to put the defendant on notice of
the elements of the offense; to allow him to decide whether to plead guilty or stand
trial; and to enable the trial court to know what judgment to pronounce following a
conviction. Evans v. State, 363 S.C. 495, 508, 611 S.E.2d 510, 517 (2005). The
indictment must list the offense with "sufficient certainty and particularity." State v.
Gentry, 363 S.C. 93, 102, 610 S.E.2d 494, 500 (2005). Importantly, "[i]n
determining whether an indictment meets the sufficiency standard, the court must
look at the indictment with a practical eye in view of all the surrounding
circumstances." Id. at 103, 610 S.E.2d at 500. Further, "one is to look at the
'surrounding circumstances' that existed pre-trial, in order to determine whether a
given defendant has been 'prejudiced,' i.e., taken by surprise and hence unable to
combat the charges against him." State v. Baker, 411 S.C. 583, 589, 769 S.E.2d 860,
864 (2015) (quoting State v. Wade, 306 S.C. 79, 86, 409 S.E.2d 780, 784 (1991)).
"[W]hether the indictment could be more definite or certain is irrelevant." Gentry,
363 S.C. at 103, 610 S.E.2d at 500. Notably, the threshold for an indictment to be
valid is generally not high. See United States v. Bates, 96 F.3d 964, 970 (7th Cir.
1996), aff'd, 522 U.S. 23 (1997) ("Facial sufficiency is not a high hurdle.
Indictments need not exhaustively describe the facts surrounding a crime's
commission nor provide lengthy explanations of the elements of the offense.").
Statutory misconduct by a public officer, like the common law crime, is an
offense that is "versatile [in] nature." State v. Hess, 279 S.C. 525, 528, 309 S.E.2d
741, 743 (1983). This practical consideration factors into the analysis of whether
the indictment sufficiently alleged how Lewis violated section 8-1-80. The
indictment identified Lewis as the sheriff, listed the timeframe ("from the day he
took office through April 24, 2017"), and narrowed the allegations ("misuse [of]
public resources and abuse [of] the power and authority of his office for the corrupt
purpose of pursuing or facilitating an adulterous relationship"). While Lewis argues
any set of facts could qualify as the "misuse of public resources," this term was
connected to those impermissible acts that served the "corrupt purpose" of advancing
his illicit affair with an employee. While it may have been preferable for the State
to have articulated the precise acts that demonstrated the "misuse [of] public
resources," or the "abuse [of] power and authority of his office," we agree with the
State that it was not required to go so far as to list the specific theory as to how Lewis
committed statutory misconduct. See generally State v. Hammonds, 30 S.W.3d 294,
300 (Tenn. 2000) ("[A]n indictment need not allege the specific theory or means by
which the State intends to prove each element of an offense to achieve the overriding
purpose of notice to the accused."). Instead, the indictment satisfied all three
considerations required by our jurisprudence, and it is clear from the record that
Lewis was not surprised and certainly not ambushed at trial by the allegations against
him. Additionally, even if the indictment was questionable, further specificity was
available by reviewing the discovery materials.9 Accordingly, the trial court did not
err in declining to quash the indictment.
9
While this Court is required to view the sufficiency of an indictment through a
practical lens, we caution that discovery may not always be sufficient to uphold an
otherwise questionable indictment. See, e.g., State v. Wright, 999 P.2d 1220, 1226
(Or. Ct. App. 2000) (noting while discovery generally is sufficient to cure
imprecision in charging instruments, there are exceptions, especially when "given
the nature or complexity of the crime, or the sheer volume of potential discovery,
CONCLUSION
For the foregoing reasons, we affirm Lewis's conviction for misconduct of a
public officer.
AFFIRMED.
BEATTY, C.J., KITTREDGE, and JAMES, JJ., concur. FEW, J., concurring
in a separate opinion.
discovery cannot, as a practical matter, cure the imprecision of the charging
instrument").
JUSTICE FEW: Will Lewis's central issue on appeal is his challenge to the vague
and undefined nature of the statutory crime of misconduct in office. He makes this
challenge in each of the three issues he raises to this Court. The majority addresses
the challenge as it relates to Lewis's first and second issues: the constitutionality of
section 8-1-80 of the South Carolina Code (2019) and the sufficiency of the
indictment. I agree with the majority's disposition of these issues, which it addresses
in Sections I and II of the majority opinion, respectively. However, Lewis also
challenges—his strongest point in my view—the trial court's failure to give the jury
meaningful requirements, elements, or standards by which the jury could determine
whether Lewis's conduct—outrageous and disgusting, to be sure—was criminal.
The majority avoids addressing this third issue by invoking a rule of procedural
default. See supra note 8. I would address the merits of Lewis's third issue and hold
the trial court erred in failing to define fraud as a factual basis for convicting Lewis
of misconduct in office.
There are three reasons this Court should not invoke the rule of procedural default
the majority employs to avoid addressing Lewis's third issue. First, the rule has
never been applied in a criminal case in this State. For my second and third reasons,
this is not the time to start. Second, we hardly discussed it. The State raised it only
in passing, literally on the last page of text in its forty-eight page brief, in a
parenthetical to its citation of a civil case which is not the case mentioned by the
majority. The State made no argument as to how this civil rule applies in a criminal
case or why this case should be the first one in which we ever do so. The State's
reference to the civil case in its brief was so quick that defense counsel—one of the
most experienced criminal appellate lawyers in South Carolina—did not realize the
State raised it and did not address it among several other issue preservation points
he made in his reply brief. Importantly, we did not discuss the procedural default
rule the majority invokes with either party at oral argument.
Third, and most importantly, I believe the majority applies the rule of procedural
default incorrectly. The majority characterizes Lewis's third issue as a challenge to
the sufficiency of the State's evidence. The case cited by the majority—again, not
the case summarily cited by the State in its brief—supports the majority's finding of
procedural default only if the majority is correct that Lewis's third issue relates only
to the sufficiency of the evidence. I read Lewis's brief and interpret counsels' oral
arguments differently. I understand the third issue to be a legal challenge to the trial
court's refusal to define fraud for the jury. If I am correct Lewis raises a point of
law, then the question of procedural default is not controlled by Griffin v. United
States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), as the majority
contends, but is controlled by Yates v. United States, 354 U.S. 298, 312, 77 S. Ct.
1064, 1073, 1 L. Ed. 2d 1356, 1371 (1957).10 Yates requires we address the merits,
as I will not trouble my reader to explain in detail here. I will let it suffice to refer
to the Griffin Court's explanation that the point of law it finds is applicable to factual
insufficiency does not apply to legal errors,
Petitioner cites no case, and we are aware of none, in
which we have set aside a general verdict because one of
the possible bases of conviction was neither
unconstitutional as in Stromberg,[11] nor even illegal as
in Yates, but merely unsupported by sufficient evidence.
502 U.S. at 56, 112 S. Ct. at 472, 116 L. Ed. 2d 371 at 380. The Court then discussed
Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 654, 24 L.Ed.2d 610, 625-
26 (1970), pointing out the "general rule" Turner recites and upon which the lower
courts in Griffin relied depends on "insufficiency of proof," and upheld the
distinction between Turner and the "legal error" basis of Yates. 502 U.S. at 58-59,112 S. Ct. at 474, 116 L. Ed. 2d at 382. The Court stated there is "a clear line that
will separate Turner from Yates, and it happens to be a line that makes good sense."
502 U.S. at 59, 112 S. Ct. at 474, 116 L. Ed. 2d at 382. The Court explained,
Jurors are not generally equipped to determine whether a
particular theory of conviction submitted to them is
contrary to law—whether, for example, the action in
question is protected by the Constitution, is time barred, or
fails to come within the statutory definition of the crime.
When, therefore, jurors have been left the option of relying
upon a legally inadequate theory, there is no reason to
think that their own intelligence and expertise will save
them from that error. Quite the opposite is true, however,
when they have been left the option of relying upon a
factually inadequate theory, since jurors are well equipped
to analyze the evidence . . . .
10
Yates was overruled on other grounds. Burks v. United States, 437 U.S. 1, 8-10,
98 S. Ct. 2141, 2145-47, 57 L. Ed. 2d 1, 7-9 (1978).
11
The Supreme Court was referring to Stromberg v. California, 283 U.S. 359, 51
S. Ct. 532, 75 L. Ed. 1117 (1931).
502 U.S. at 59, 112 S. Ct. at 474, 116 L. Ed. 2d at 382-83.
Griffin, therefore, was controlled by Turner, but Griffin upheld Yates. This case—
in my view—is controlled by Yates. The majority's reliance on Griffin in this case
is error and is contrary to Yates.
Turning to the merits, I agree with Lewis the misconduct in office statute—section
8-1-80—is so vague as to "simply provide[] no guidance as to what constitutes the
crime." Appellant Br. 8. "To satisfy due process, 'a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordinary people can understand
what conduct is prohibited and [2] in a manner that does not encourage arbitrary and
discriminatory enforcement.'" Skilling v. United States, 561 U.S. 358, 402-03, 130
S. Ct. 2896, 2927-28, 177 L. Ed. 2d 619, 656 (2010) (alteration in original) (quoting
Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903,
909 (1983)); see also Toussaint v. State Bd. of Med. Exam'rs, 303 S.C. 316, 320, 400
S.E.2d 488, 491 (1991) ("A law is unconstitutionally vague if it forbids or requires
the doing of an act in terms so vague that [women and] men of common intelligence
must necessarily guess as to its meaning and differ as to its application." (citing
Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322,
328 (1926))).
Lewis makes his challenge to the vagueness of section 8-1-80 in all three sections of
his brief. In his "Question 1," which the majority addresses in Section I, he argues
"an overly broad statute may simply delegate to the discretion of law enforcement
officers or prosecutors the actual implementation of the social harm the statute is
designed to prohibit." In his "Question 2," which the majority addresses in Section
II, he argues the indictment for violating the statute "did not inform Mr. Lewis of the
specific act . . . he committed so that he could properly prepare a defense to refute
the allegations." I agree with the majority's disposition of these two issues.
In his "Question 3," however, Lewis makes the legal point I discussed above. He
argues "the trial judge . . . gave the jury no guidance" as to what conduct violated
the statute. Appellant Br. 23. Here, however, Lewis goes beyond the statute and
argues the trial court failed to define for the jury the operative terms—the factual
premises—in the State's case against him: official misconduct, corruption, fraud, and
oppression. As Lewis concedes, the trial court made at least a summary effort to
define official misconduct, corruption, and oppression. Lewis's argument is the trial
court made no effort to define "fraud." By failing to define fraud, Lewis argues, the
trial court left the crime of which he was charged undefined, "with[out] sufficient
definiteness that ordinary [jurors] can understand what conduct is prohibited,"
Skilling, 561 U.S. at 402, 130 S. Ct. at 2927, 177 L. Ed. 2d at 656, so that jurors "of
common intelligence must necessarily guess as to [the crime's] meaning and [might]
differ as to its application," Toussaint, 303 S.C. at 320, 400 S.E.2d at 491.
I agree. In civil cases, we require trial courts to go to great lengths to define the nine
elements of fraud. See, e.g., Mishoe v. Gen. Motors Acceptance Corp., 234 S.C.
182, 193, 107 S.E.2d 43, 49 (1958) (listing nine elements) (quoting Flowers v. Price,
190 S.C. 392, 395, 3 S.E.2d 38, 39 (1939)). It is absurd to suggest that when fraud
becomes the basis for a crime, it is no longer necessary to define the term. Rather,
the need is heightened in a criminal case to give the jury meaningful requirements,
elements, or standards by which it must judge the defendant's conduct. As the
Supreme Court of the United States stated, "if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those who
apply them. A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory application." Grayned v. City
of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2299, 33 L. Ed. 2d 222, 227-28
(1972).
The question then becomes whether the trial court's error in refusing to define fraud
is reversible. I have no doubt the error prejudiced Lewis as to the State's fraud theory
of misconduct in office. See State v. Stukes, 416 S.C. 493, 498, 787 S.E.2d 480, 482
(2016) (stating "the charge must be prejudicial to the appellant to warrant a new
trial" (citing State v. Curry, 406 S.C. 364, 373, 752 S.E.2d 263, 267 (2013))). In the
charge conference the trial court conducted at the conclusion of the evidence, Lewis
raised the question of whether the evidence satisfied the legal definition of fraud.12
The trial court then asked the State, "Tell me about fraud." The State responded, "I
intend to argue . . . that everything he did with Savannah Nabors, from hiring her at
her salary, providing the perks that he did, was all a fraud perpetrated on the
taxpayers . . . of Greenville all the way through the trip to Charlotte." In his closing
12
Here is the point at which counsel could have been more clear with the trial court
as to the basis for his argument. Counsel stated, "It's back again to the problem
involving the statutory language. I don't think all of them remotely apply in this
case. And there just aren't good definitions for a lot of them. I don't see how fraud
is in this case." To me, read in context, counsel is arguing the proper definition of
fraud, if charged to the jury, requires a finding there was no fraud. I cannot dispute,
however, counsel left room for the majority's conclusion he was discussing the
sufficiency of the evidence.
argument to the jury, the Solicitor argued Lewis was guilty of "fraud in that he has
this money that's given to him for one purpose and then he's using it for another, not
wanting to tell anybody about it." These arguments correctly paint Lewis as a fraud,
in the term's colloquial sense, but they do not satisfy the legal definition of criminal
fraud. If the trial court had defined fraud for the jury, in my opinion, the jury could
not have convicted him of misconduct in office on the basis of the State's fraud
argument. As Lewis points out in his brief, what the State argues here might be
breach of trust, but it is not fraud. To prove fraud under a proper legal definition,
the State was required to prove numerous additional facts, such as Lewis made a
false representation to get the money, the County relied on the falsity in giving him
the money, and Lewis did it all with criminal intent.
Even prejudicial error is not reversible, however, if it is harmless beyond a
reasonable doubt. See State v. Simmons, 423 S.C. 552, 566, 816 S.E.2d 566, 574
(2018) ("If a review of the entire record does not establish that the error was harmless
beyond a reasonable doubt, then the conviction shall be reversed."). In other words,
if there was overwhelming evidence Lewis was guilty of misconduct in office on
one of the State's other theories, we should not reverse the conviction. The Solicitor
laid out the State's case in compelling terms in other sections of his closing argument,
without relying on his argument Lewis committed fraud. The majority summarizes
the argument in reaching its conclusion "the statute clearly applies to the conduct at
issue here." I agree. In my view, the irrefutable facts that Lewis hired the
inexperienced Nabors at an absurdly high salary, showered her with perks and favors
that bore no relationship to her work-related responsibilities (particularly the new
Ford Explorer with "police package"), aggressively used those undeserved benefits
to pressure her into a sexual relationship, openly threatened to withdraw the benefits
if she did not give in to his sexual advances, and did all this at the expense of
taxpayers, leaves no doubt whatsoever Lewis is guilty of the crime misconduct in
office.
I concur in result.