State v. Bagwell and Spain

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.

Steve R. Bagwell and Daryl Lee Spain, Appellants

Appeal From Greenville County

C. Victor Pyle,
Jr., Circuit Court Judge

Unpublished
Opinion No. 2007-UP-377

Submitted
September 14, 2007 – Filed September 18, 2007

AFFIRMED

Joseph L. Savitz, III, of Columbia, for Appellants.

Attorney General Henry D.
McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy
Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames,
all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER
CURIAM: 
Steve R. Bagwell (“Bagwell”) and Daryl Lee Spain (“Spain”) were convicted by a
jury of first degree burglary.  The judge sentenced Bagwell to twenty years of
confinement and Spain to fifteen years.  Bagwell and Spain appeal their
convictions alleging the trial judge erred in ruling inadmissible a defense
witness’s testimony.  We affirm.[1]

Facts

In
September 2003, Jarrett Armstrong (“Armstrong”) and Chris Snoddy (“Snoddy”)
shared an apartment in Greenville County, and both worked at a local Applebee’s
restaurant.  Bagwell and Spain shared an apartment in the same complex.

On
September 13, 2003, the day of the burglary, Armstrong worked from 5 p.m. until
10 p.m.  Armstrong testified he went home at 10 p.m., showered, and watched
television until driving back to Applebee’s at 11:45 p.m. to pick Snoddy up
from work.  Armstrong waited approximately twenty minutes for Snoddy and left
with Snoddy around 12:15 a.m. or 12:20 a.m.  While en route back to their
apartment, Armstrong stated he received a call from a neighbor that caused them
to hurry home.  A few neighbors were gathered outside their apartment when
Armstrong and Snoddy arrived. 

Armstrong
told Snoddy to go around to the rear of the apartment because it appeared
someone was inside.  Armstrong said he entered the apartment’s front door and
saw Bagwell, whom Armstrong has known since elementary school, leaving through
the back glass patio door which had been shattered.    As Bagwell was exiting,
Armstrong yelled to Snoddy that someone was running out.  Armstrong reported
finding a sandal on the apartment floor that he had seen worn previously by Spain.  After checking the upstairs and finding nothing missing, Armstrong went outside to
check on Snoddy.

Snoddy
testified that when he arrived at the back of the apartment the glass patio
door was shattered.  Snoddy picked up a metal pole to protect himself.  He
observed Spain exiting the apartment through the shattered door, and he struck Spain with the pole.  The two fought until Spain submitted.  Spain was not wearing shoes
and had numerous cuts to his feet.  Spain passed out when Armstrong reached the
back of the apartment. 

Armstrong
and Snoddy then went to Bagwell’s apartment to confront Bagwell.  Upon their
arrival, Bagwell had blood running down his face.  Armstrong hit Bagwell one
time before neighbors intervened.  Armstrong called the police. 

At
trial, Spain did not take the stand, but Bagwell testified that he had consumed
too much alcohol and was home asleep at the time of the incident. 

Standard
of Review

In
criminal cases, the appellate court sits to review errors of law only.  State
v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Wood, 362 S.C.
520, 608 S.E.2d 435 (Ct. App. 2004); State v. Mattison, 352 S.C. 577,
575 S.E.2d 852 (Ct. App. 2003).  This court is bound by the trial court’s
factual findings in determining the admissibility of certain evidence in
criminal cases.  Wilson, 345 S.C. at 6, 545 S.E.2d at 829; State v.
Young, 364 S.C. 476, 613 S.E.2d 386 (Ct. App. 2005).  The admission of
evidence is within the discretion of the trial court and will not be reversed
absent an abuse of discretion.  State v. Pagan, 369 S.C. 201, 207, 631
S.E.2d 262, 265 (2006); State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d
87, 93 (2002).  An abuse of discretion occurs when the conclusions of the trial
court either lack evidentiary support or are controlled by an error of law.  Pagan,
369 S.C. at 208, 631 S.E.2d at 265; State v. McDonald, 343 S.C. 319, 540
S.E.2d 464 (2000); State v. Walker, 366 S.C. 643, 623 S.E.2d 122 (Ct.
App. 2005).  In order for an error of law to warrant reversal, the error must
result in prejudice to the appellant.  State v. Beck, 342 S.C. 129, 536
S.E.2d 679 (2000); State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995); State
v. Patterson, 367 S.C. 219, 625 S.E.2d 239 (Ct. App. 2006).

Discussion

Bagwell
and Spain argue the trial judge erred in refusing to allow Spain’s brother to testify that Armstrong was angry with Spain because Spain had revealed to a
mutual neighbor that Armstrong was selling marijuana from his apartment. 
Specifically, Bagwell and Spain claim the statement was admissible under Rule
608(c), SCRE, to show Armstrong’s bias and motive to fabricate testimony. 
Therefore, Bagwell and Spain contend, the trial judge abused his discretion by
excluding the evidence under Rule 613, SCRE. 

Whether
the statement was evidence of bias and admissible under Rule 608(c), SCRE, is
an issue not raised at trial and is thus not preserved for appeal.  Pye v.
Estate of Fox, 369 S.C. 555, 633 S.E.2d 505 (2006).  See also Staubes
v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It
is well-settled that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial court to be preserved
for appellate review.”); Ellie, Inc. v. Miccichi, 358 S.C. 78, 103, 594
S.E.2d 485, 498 (Ct. App. 2004) (noting it is axiomatic that an issue cannot be
raised for the first time on appeal).  “Imposing this preservation requirement
on the appellant is meant to enable the lower court to rule properly after it
has considered all relevant facts, law and arguments.”  I’On, L.L.C. v. Town
of Mount Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000).

The
State objected to the testimony based on Rule 613(b), SCRE, arguing the defense
counsel failed to lay a proper foundation for the admissibility of a prior
inconsistent statement.  Under South Carolina law, a proper foundation must be
laid before admitting a prior inconsistent statement.  State v.
McLeod, 362 S.C. 73, 81, 606 S.E.2d 215, 219 (Ct. App. 2004).  Rule 613(b),
SCRE, provides:

Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is advised of the substance of the statement, the time and
place it was allegedly made, and the person to whom it was made, and is given
the opportunity to explain or deny the statement.

The
Solicitor posited, “[T]he appropriate way to [use this statement] would have
been to ask my victims during cross-examination whether [sic] not they made a
statement to this man.” In response to the State’s challenge to the testimony, the
defense counsel opined to the trial judge, “[T]he foundation is laid.  He
states in court one thing that happens and then he tells my client something
different that happens.”  The trial judge sustained the State’s objection.  At
no time during the trial did Bagwell and Spain assert the testimony would show bias,
prejudice, or motive for Armstrong and Snoddy to testify falsely.  Accordingly,
the trial judge was never presented with the opportunity to rule whether the evidence
was admissible under Rule 608(c).

Though
we find no abuse of discretion in the trial judge’s ruling, any error arising
from the exclusion of the evidence in the present case would be harmless.

Error is harmless where it could not
reasonably have affected the result of the trial.  In re Harvey, 355
S.C. 53, 584 S.E.2d 893 (2003); State v. Pagan, 357 S.C. 132, 591 S.E.2d
646 (Ct. App. 2004).  Generally, appellate courts will not set aside
convictions due to insubstantial errors not affecting the result.  State v.
Sherard, 303 S.C. 172, 399 S.E.2d 595 (1991); State v. Adams, 354
S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).  Thus, an error is harmless where
guilt has been conclusively proven by competent evidence such that no other
rational conclusion can be reached.  State v. Bailey, 298 S.C. 1, 377
S.E.2d 581 (1989); Adams, 354 S.C. at 381, 580 S.E.2d at 795.  The
conviction should not be reversed where a review of the entire record
establishes the error is harmless beyond a reasonable doubt.  State v.
Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v. Fletcher, 363
S.C. 221, 609 S.E.2d 572 (Ct. App. 2005); State v. King, 349 S.C. 142,
561 S.E.2d 640 (Ct. App. 2002).

In State v. Fossick, 333 S.C. 66,
70, 508 S.E.2d 32, 33-34 (1998), and State v. Beckham, 334 S.C. 302, 513
S.E.2d 606 (1999), the supreme court applied a harmless error analysis to the
failure to allow impeaching testimony.   In both cases, the court concluded the
judge’s error in excluding impeachment evidence was harmless.  In Fossick,
the court explained:

In determining harmless error regarding
any issues of witness credibility, we will consider the importance of the
witness’s testimony to the prosecution’s case, whether the witness’s testimony
was cumulative, whether other evidence corroborates or contradicts the
witness’s testimony, the extent of cross-examination otherwise permitted, and
the overall strength of the State’s case.  State v. Holmes, 320 S.C.
259, 464 S.E.2d 334 (1995) (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed2d 674 (1986)).

Id. at 70, 508
S.E.2d at 34.

Here,
physical evidence corroborated the testimony of Armstrong and Snoddy and
provided the State with a strong case.  The back glass door of the victims’
apartment had been shattered.  Armstrong saw Bagwell, whom he had known for
years, leaving the apartment.  Snoddy testified he saw Spain exit the apartment through the broken door, and the two had a physical altercation at
the scene.  Additionally, Armstrong averred the shoe left in his apartment was
one he remembered Spain wearing.  Importantly, both of these statements indicate
the lacerations to Spain’s feet were caused by the door’s broken glass. Finally,
counsel for Bagwell and Spain were permitted to cross-examine Armstrong and
Snoddy.  Accordingly, even if the trial judge had erred in excluding the testimony
of Spain’s brother, such error was harmless as it could not reasonably have
affected the outcome of the trial.     

Conclusion

The
trial judge did not err in ruling inadmissible the defense witness’s testimony. 
At trial, Bagwell and Spain never argued the evidence was admissible under Rule
608(c), SCRE.  Therefore, the issue is not preserved for appellate review. 
Further, the trial judge properly found no foundation had been laid to admit
under Rule 613(b), SCRE.  Finally, any possible error in its exclusion was
harmless given the physical evidence and the opportunity for cross-examination
of Armstrong and Snoddy.  Accordingly, Bagwell and Spain’s convictions and
sentences are

AFFIRMED.

ANDERSON and THOMAS, JJ., and CURETON,
A.J., concur.

[1]  We decide this case without oral argument
pursuant to Rule 215, SCACR.