THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State of South

Carolina, Petitioner,

v.

Elmer Osborne, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Pickens County

Larry R. Patterson, Judge

Opinion No. 24942

Heard November 6, 1997 - Filed May 3,1999

REVERSED

Patrick M. Teague, Associate General Counsel, and

Frank L. Valenta, Jr., General Counsel, both of the

South Carolina Department of Public Safety, of

Columbia, for petitioner.

Dallas D. Ball, of Pickens, for respondent.

Charles M. Condon, Attorney General, John W.

McIntosh, Deputy Attorney General, Salley W.

Elliott, Assistant Deputy Attorney General, and

Harold M. Coombs, Jr., Senior Assistant Attorney

General, of Columbia, for petitioner amicus curiae.

WALLER, A.J.: Respondent- Elmer Osborne was convicted in

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magistrate's court of driving under the influence ("DUI") in violation of S.C.

Code Ann. § 56-5-2930 (1976). The circuit court reversed, finding the Stat¹

failed to prove the corpus delicti. The Court of Appeals affirmed the circuit

court's ruling. State v. Osborne, 321 S.C. 196, 467 S.E.2d 454 (Ct. App.

1996). We granted the State's petition for certiorari, and now reverse.

FACTS

At 11:17 p.m. on November 24, 1991, Trooper J.M. Bagwell arrived at

the scene of a one-car accident. The car had gone off the road and hit a

speed limit sign. It was abandoned. The car hood was warm to the touch.

Bagwell went back to patrolling the area.

At 1:50 a.m., November 25, 1991, Deputy J.S. Duncan met Respondent

at a Hot Spot convenience store. Duncan testified Respondent told him he

called the police to report his car stolen. In Duncan's opinion, Respondent

was very intoxicated. He told Respondent the penalty for filing a false report

and advised him of his rights under Miranda v. Arizona.² Respondent then

told Duncan he wrecked his car. The two then returned to the accident

scene, where they met Trooper Bagwell (who was called back to the scene).

At first, Respondent told Bagwell the car was stolen; he then admitted he

wrecked the car after Deputy Duncan reminded him of what he had said at

the Hot Spot. Duncan asked Respondent where the car keys were because

the vehicle was locked. Respondent said they were in his pocket and gave

them to Duncan.

Bagwell asked Respondent whether he drank anything after the wreck;

Respondent stated he had not. He then gave Respondent a field sobriety test

which in his opinion Respondent failed. He arrested Respondent at 2:28 a.m.

on November 25, 1991. Following his arrest, Respondent was given a

breathalyser test which registered .14%.

ISSUES

Office of the Attorney General has filed an amicus curiae brief essentially

supporting Petitioner's argument. References in this opinion to "the State"

refer to Petitioner.

² 384 U.S.- 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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I. Did Respondent's statements to police constitute a confession?

II. Did the State's evidence establish the corpus delicti?

DISCUSSION

It is well-settled law that a conviction cannot be had on the extra

judicial confessions of a defendant unless they are corroborated by proof

aliunde³ of the corpus delicti.⁴ State v. Williams, 321 S.C. 381, 468 S.E.2d

656 (1996).⁵ See also State v. Brown, 103 S.C. 437, 442, 88 S.E. 21, 22

(1916) ("Before a defendant can be required to go into his defense, it is

necessary that there shall be some proof of. the corpus delicti"). Before the

Court of Appeals, the State argued Respondent's statements did not amount

to a confession and thus this rule was inapplicable. The State further argued

that even if the corroboration rule applied, there was sufficient evidence

aliunde Respondent's statements to establish the corpus delicti. The Court

of Appeals rejected both arguments.

1. Respondent's Statements

The State argues the Court of Appeals erred in finding Respondent's

statements to police amounted to a confession. We agree.

The legal definition of "confession" is "restricted to acknowledgment of

guilt and does not apply to mere statement[s] of fact from which guilt may

be inferred." State v. Cunningham, 275 S.C. 189, 192, 268 S.E.2d 289, 291

(1980) (quoting State v. Miller, 211 S.C. 306, 45 S.E.2d 23 (1947)). See also

29A Am. Jur. 2d Evidence § 709 (1994) (although every confession is an

admission, not every admission is a confession). Respondent told police (1)

his car was stolen, (2) he wrecked his car (retracting the stolen car claim),

⁴ "The body of a crime." Black's Law Dictionary 344 (6th ed. 1990). See

also State v. Teal, 225 S.C. 472, 474, 82 S.E.2d 787, 788 (1954) ("[G]enerally

speaking, the term "corpus delicti" means, when applied to any particular

offense, that the specific crime has actually been committed").

⁵ This rule of law will be referred to in this opinion as the "corroboration

rule."

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and (3) he did not have anything to drink after the wreck.⁶ Section 56-5

2930 defines the crime of DUL "It is unlawful for . . . any person who is

under the influence of intoxicating liquors . . . or any other substance of like

character . . . to drive any vehicle within this State." See also State v.

Sheppard, 248 S.C. 464, 465, 150 S.E.2d 916, 917 (1966) ("The act of

operating a motor vehicle with impaired faculties is the gravamen of the

offense [of DUI]").

We find Respondent's statements do not constitute an acknowledgment

of guilt of DUI. They do not even acknowledge Respondent ever drank at all,

much less that he was under the influence of alcohol. Rather, these

statements are more in the nature of admissions. See, e.g., State v. Morgan,

282 S.C. 409, 410-11, 319 S.E.2d 335, 336 (1984) (in reviewing DUI

conviction, statements to police that defendant had been using alcohol and

drugs, and was driver of car before it wrecked, did not amount to a

confession of guilt; court specifically noted that defendant "did not say that

he was under, the influence")⁷; Cunningham, 275 S.C. at 189, 268 S.E.2d at

before the accident, and it relied on this additional alleged statement in

finding a confession. Osborne, 321 S.C. at 199, 467 S.E.2d at 456. There is

no evidence in the magistrate's return that Respondent made this statement.

In its recitation of facts, the circuit court order refers to a statement

Respondent made about drinking before the wreck. This order is most likely

the factual source used by the Court of Appeals. See id. at 198 n.1, 467

S.E.2d at 455 n.1. We find it was error for the Court of Appeals to rely on

the recitation of facts contained in an appellate order instead of restricting

itself to the facts contained in the magistrate's return. See State v. Barbee,

280 S.C. 328, 313 S.E.2d 297 (1984) (magistrate's return is official record of

trial proceedings); State v. Adler, 278 S.C. 66, 292 S.E.2d 185 (1982) (circuit

court only has appellate jurisdiction over judgment from magistrate's court).

⁷ The Court of Appeals found Morgan inapplicable because that case

affirmed the corpus delicti issue on procedural grounds: "As pointed out

above, the statements of the Defendant did not amount to a confession but

assuming without so deciding that a confession was involved which normally

would require the proof of the corpus delicti before admission, no objection

to the evidence on this basis was interposed." 282 S.C. at 412, 319 S.E.2d

at 337 (emphasis supplied). The issue Morgan refused to address was not

whether the statements amounted to a confession, but whether there was

proof aliunde of the corpus delicti. These are two separate legal issues.

Morgan is almost directly on point regarding the confession issue.

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289 (defendant's statement she was the driver of car at time of wreck did not

constitute a confession to reckless homicide, because the defendant never

stated she was driving recklessly). Therefore, the Court of Appeals

incorrectly ruled Respondent's statements constituted a confession.

The State argued to the Court of Appeals, and now argues here, that

if Respondent's statements are not viewed as a confession, the corroboration

rule does not apply.⁸ We disagree, finding the corroboration rule should

this issue was squarely addressed. Although the State argues otherwise, it

is not at all clear we have strictly limited the corroboration rule to

confessions. Most cases contain no discussion of whether the defendant's

statements constituted a confession before applying the rule. See, e.g., State

v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987); In the Matter of Perkins, 276

S.C. 378, 379, 278 S.E.2d 781, 782 (1981) (applying rule to minor's

"inculpatory statements"); State v. Speights; 263 S.C. 127, 208 S.E.2d 43

(1974); State v. Watts, 249 S.C. 80, 152 S.E.2d 684 (1967); State v. White,

311 S.C. 289, 296, 428 S.E.2d 740, 741 (Ct. App. 1993) (applying rule to

"inculpatory statements" in felony DUI case where defendant told police he

was driving car, and had been drinking). In some, the rule has been applied

where it is questionable whether confessions were involved. See, e.g.

Williams, 321 S.C. at 381, 468 S.E.2d at 656; Brown, 103 S.C. at 443, 88 S.E.

at 23 (applying rule to "statements of the accused [made before crime was

committed] showing enmity [toward the victim]"); State v. Townsend, 321 S.C.

55, 467 S.E.2d 138 (Ct. App. 1996) (applying rule in DUI case where

defendant told police he was run off road by another driver and drank some

alcohol he had in the car because he was upset about the car wrecking);

White, 311 S.C. 289, 428 S.E.2d 740. But see State v. Epes, 209 S.C. 246,

39 S.E.2d 769 (1946) (using defendant's inculpatory statements to prove

corpus delicti; finding the statements were not confessions); State v. Edwards,

173 S.C. 161, 175 S.E. 277 (1934) (seeming to draw distinction between

statements constituting a confession and those not, stating because there was

no confession of guilt in the case there was no violation of the [corroboration

rule]). The closest we have come to an analysis of whether the corroboration

rule applied to statements not amounting to confessions was in State v.

Morgan (discussed supra in text and footnote 7). The language quoted in

footnote 7 could be read as implying that unless a confession is involved, the

rule is inapplicable. However, because that was not the issue ruled on, and

because the entire corpus delicti issue was affirmed on a procedural ground,

a better interpretation of Morgan would be that it does not speak to this

issue one way br the other.

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apply whether a statement amounts to a confession or merely constitutes an

admission.

We think that an accused's admissions of essential facts or

elements of the crime, subsequent to the crime, are of the same

character as confessions and that corroboration should be

required.

The need for corroboration extends beyond complete and

conscious admission of guilt -- a strict confession. Facts admitted

that are immaterial as to guilt or innocence need no discussion.

But statements of the accused out of court that show essential

elements of the crime . . . stand differently. Such admissions

have the same possibilities for error as confessions. They, too,

must be corroborated.

Opper v. United States, 348 U.S. 84, 90, 75 S. Ct. 158, 163, 99 L. Ed. 101,

107 (1954) (internal citations omitted). See also State v. Trexler, 342 S.E.2d

878, 880 (N.C. 1986) ("[R]egardless of whether defendant's statements

constitute an actual confession or only amount to an admission, our long

established rule of corpus delicti requires that there be corroborative

evidence, independent of the statements, before defendant may be found

guilty of the crime"); 29A Am. Jur. 2d at § 753; E.H. Schopler, Annotation,

Corroboration of Extrajudicial Confession or Admission, 45 A.L.R.2d 1316,

1323 (1956).

Il. Proof Aliunde of Corpus Delicti

The State argues the Court of Appeals erred in finding it failed to

provide sufficient independent evidence of the corpus delicti to support

Respondent's conviction. We agree.

In Opper v. United States, the Supreme Court considered "the extent

of the corroboration of admissions necessary as a matter of law for a

judgment of conviction, concluding:

[T]he corroborative evidence need not be sufficient, independent

applies to actual confessions, they are hereby overruled.

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of the statements, to establish the corpus delicti. It is necessary,

therefore, to require the Government to introduce substantial

independent evidence which would tend to establish the

trustworthiness of the statement. Thus, the independent

evidence serves a dual function. It tends to make the admission

reliable, thus corroborating it while also establishing

independently the other necessary elements of the offense. It is

sufficient if the corroboration supports the essential facts

admitted sufficiently to justify a jury inference of their truth.

Those facts plus the other evidence besides the admission must,

of course, be sufficient to find guilt beyond a reasonable doubt.

348 U.S. at 93, 75 S. Ct. at 164, 99 L. Ed. at 108-09.

This standard enunciated in Opper has been adopted in other jurisdictions,

including our sister state of North Carolina. See Trexler, 342 S.E.2d at 880

("The corpus delicti rule only requires evidence aliunde the confession which,

when considered with the confession, supports the confession and permits a

reasonable inference that the crime occurred. The independent evidence must

touch or be concerned with the corpus delicti." However, "[t]he rule does not

require that the evidence aliunde the confession prove any element of the

crime.").⁹ We clarify the law in this State that, consistently with Opper and

confession alone, uncorroborated by other evidence, will not justify a

conviction, but a confession which is corroborated may be considered along

with other evidence to justify the conviction even if it be necessary in

establishing the corpus delicti"); People v. Rhoden, 625 N.E.2d 940, 945 (111.

App. Ct. 1993) ("There must be some independent or corroborating evidence

outside the confession which tends to establish that a crime occurred. If such

evidence tends to prove that the offense occurred and corroborates a

defendant's confession, it may be considered, together with the confession, to

establish the corpus delicti of the offense."); State v. Cardwell, 135 P. 597,

598 (Kan. 1913) ("That a bald confession of one that he has committed a

certain crime, without other evidence or circumstances to corroborate the

confession, will sustain a conviction is, we believe, nowhere contended. But

it seems to be the general rule . . . that any pertinent fact in a criminal case,

including the corpus delicti, may be established by evidence of admissions of

guilt by the accused, supported by circumstantial evidence tending to

corroborate the admissions"); Davis v. State, 97 A.2d 303 (Md. 1953); Kansas

City v. Verstraete, 481 S.W.2d 615, 617 (Mo. Ct. App. 1972) ("If there is

evidence of corroborating circumstances, independent of the confession, which

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its progeny, the corroboration rule is satisfied if the State provides sufficient

independent evidence which serves to corroborate the defendant's extra

judicial statements and, together with such statements, permits a reasonable

belief that the crime occurred. Cf. Williams, 321 S.C. at 385 n.2, 468 S.E.2d

at 658 n.2 (emphasizing that "[p]roof of corpus delicti is not a prerequisite to

the admission of an extra-judicial confession of a defendant.").

Applying this rule to the facts at hand, we find the State provided

sufficient independent evidence to support the trustworthiness of

Respondent's statements to police. We further find this independent

evidence, taken together with the statements, allowed a reasonable inference

that the crime of driving under the influence was committed. "The corpus

delicti of DUI is: (1) driving a vehicle; (2) within this State; (3) while under

the influence of intoxicating liquors, drugs, or any other substance of like

character." Townsend, 321 S.C. at 58, 467 S.E.2d at 140. See also Sheppard,

248 S.C. at 466, 150 S.E.2d at 917 (act of operating motor vehicle while

impaired gravamen of offense). Proof of the corpus delicti does not have to

be in the form of direct evidence; it may be established by circumstantial

evidence when it is the best evidence obtainable. Brown v. State, 307 S.C.

465, 415 S.E.2d 811 (1992). If there is any evidence tending to establish the

corpus delicti, then it is the trial court's duty to pass that question on to the

jury. Williams, 321 S.C. at 385, 468 S.E.2d at 658. "We are not here to

determine the sufficiency of the evidence to justify the jury's verdict . . . but

we are concerned only with the question as to the sufficiency of that evidence

to require the trial Judge to submit the issue . . . to the jury." State v.

Blocker, 205 S.C. 303, 307, 31 S.E.2d 908, 910 (1944) (quoting Edwards, 173

S.C. at 165, 175 S.E. at 278). The decision of the Court of Appeals is hereby

reversed and Respondent's conviction is reinstated.

REVERSED.

TOAL, MOORE, and BURNETT, JJ., concur. FINNEY, C.J., dissenting

in separate opinion.

both the corroborating circumstances and the confession may be considered

in determining whether or not the corpus delicti has been established"); State

v. George, 257 A.2d 19 (N.H. 1969); Holt v. State, 117 N.W.2d 626 (Wis.

1962) (requiring some corroboration of any significant fact of the crime in

order to produce confidence in the truth of the confession; all elements of

crime do not need to be proved independently). See also 29A Am. Jur. 2d at

§ 753.

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FINNEY, C.J.: I respectfully dissent from that part of the majority's opinion

which finds "sufficient independent evidence to support the trustworthiness

of Respondent's statements to police." The independent evidence showed

only:

(1) Respondent's car was involved in an accident;

(2) Respondent registered .14% on a breathalyzer test

administered more than three hours after the car ran off

the road; and

(3) Respondent retracted his original claim that the car had

been stolen.

The absence of any corroborating evidence that the car was being

operated at the time of the accident by a person with impaired faculties

means the State failed to prove the corpus delicti of driving under the

influence. In my opinion, the mere fact that a car is involved in an accident

is simply insufficient to show that the operator was impaired. Cf. In the

Matter of Stacy Ray A., 303 S.C. 291, 400 S.E.2d 141 (1991) overruled in part

on other grounds State v. Rowell, 326 S.C. 313, 487 S.E.2d 185 (1997) (fact

that fatal collision occurred insufficient to show reckless homicide).

I would affirm the decision of the Court of Appeals.

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