State v. Lussardi

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Hugh Lussardi, Appellant.

Appeal From Spartanburg County
 J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2005-UP-529
Submitted September 1, 2005 Filed September 16, 2005  

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant  Attorney General Deborah R. J. Shupe, Office of the Attorney General, of Columbia, and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:  A jury found Hugh Lussardi guilty of first degree burglary and grand larceny.  He was sentenced to life in prison for first degree burglary and five years for grand larceny.  Lussardi appeals, arguing the indictment was insufficient, the trial court erred by allowing the State to introduce Lussardi's two prior burglary convictions because they were more prejudicial than probative, and the trial court erred by sentencing Lussardi to life imprisonment without parole because his two prior burglaries were committed in a continuous course of conduct.  We affirm.[1]  

FACTS

On January 28, 2002, Jody Mabry returned home from work and discovered that the doors to his garage[2] were open.  Upon inspection, Mabry noticed that the walk-in door had been smashed and his four-wheeler was missing.  Mabry also noticed fresh four-wheeler tracks leading out of the building, around the building, through the woods behind the building, and then turning right onto Mount Olive Road.  After discovering that his four-wheeler was gone, Mabry walked to his grandmother's house to inquire if she had seen anyone around his house during the day.  Mabry then returned home and called the police.  Officer Randall Bogan dusted for fingerprints on the garage and on a bar that was used to pry the door open, but he was unable to get any prints.

Sheila Culbreth, who is Mabry's Aunt and lives across the street from Mabry, testified she heard her dogs barking that afternoon, so she went to her door to see what was outside.  When she looked outside, she saw two men walking up the road.  She testified that one of the men had long blonde hair and was wearing a type of cap on his head.  She said the other man had dark hair.  Culbreth said she did not get a good look at their faces because they never looked at her.  Shortly after Culbreth saw the two men in the street, she heard a banging noise and something running in the distance, but she did not see anything.  Culbreth saw the dark-haired man, who she later identified as Lussardi, again about two or three days later when she found him standing in her driveway when she came home from work.  She saw his face and noticed that he had a beard.

Thomas Lawter testified that Lussardi was at his house on January 28 and Lussardi wanted him to help him "go get a four-wheeler."  The two men had been drinking at Lawter's house.  Lawter said Lussardi used a steel rod to break into Mabry's garage and then drove Mabry's four-wheeler out of the garage.  Lawter said he was scared and hid in the woods while Lussardi broke into the building, but he got on the back of the four-wheeler after Lussardi had stolen it.  The two of them then rode the four-wheeler through the woods to Lawter's house on Corn Mill Road and parked the vehicle behind Lawter's house.  The next morning, Lussardi sold the four-wheeler to a third party.  Lawter gave a statement to the sheriff's department on February 7, 2002, after the police had come to his house looking for Lussardi.  Lawter agreed to plead guilty to the charge.  Lawter said that he had long gray hair and was wearing a bandana at the time of the incident.    

Lussardi was found guilty of first degree burglary and grand larceny.  He was sentenced to life in prison for first degree burglary and five years for grand larceny.  Lussardi made a motion for a new trial, which was denied.  Lussardi now appeals. 

LAW/ANALYSIS