State v. Thurston

THIS OPINION HAS NO
PRECEDTIAL VALUE AND 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.

Michael Dean
Thurston, Sr., Appellant.

Appeal From Greenville County

 John C. Few, Circuit Court Judge

Unpublished Opinion No. 2007-UP-429

Submitted September 1, 2007 – Filed
October 9, 2007 

AFFIRMED

Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for Appellant

Attorney General Henry Dargan McMaster

Chief Deputy Attorney General John W. McIntosh

Assistant Deputy Attorney General Salley W. Elliott

Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Appellant appeals the trial court’s
rulings that specific testimony given by two separate witnesses was relevant.
We affirm.[1]

FACTS

Appellant and
Pamela Thurston were married, but the couple separated on April 30, 2004, when
Appellant moved out.  On May 2, 2004, Appellant returned to the marital home,
where Mrs. Thurston continued to reside, to retrieve some items he owned. 
During Appellant’s visit to the home, Mrs. Thurston called the police. 
Appellant left the home by the time the responding officer arrived. 

The
officer spoke with Mrs. Thurston and found her to be so nervous and upset that
she was shaking.  Mrs. Thurston told the officer that while leaving, her
husband told her he was going to kill her and then ran over the gate she was
standing behind.  The officer inspected the metal gate and found it to be
twisted.   The officer also spoke with Mrs. Thurston’s neighbor who claimed to
have witnessed the events between Appellant and Mrs. Thurston.  The neighbor’s
description of the events corroborated the description given by Mrs. Thurston.

Based
on these events, Appellant was indicted for assault with intent to kill. 
Appellant was convicted by a jury of the lesser offense of assault of a high and
aggravated nature.  Appellant was sentenced to five years imprisonment.  

STANDARD OF REVIEW

“In
criminal cases, the appellate court sits to review errors of law only.”  State
v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001).  “The admission or exclusion of evidence is a matter
within the sound discretion of the trial court and absent clear abuse, will not
be disturbed on appeal.”  Gamble v. Int'l Paper Realty Corp. of S.C.,
323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996).  “An abuse of discretion
occurs when the trial court’s ruling is based on an error of law.”  State v.
Horton, 359 S.C. 555, 566, 598 S.E.2d 279, 285 (Ct. App. 2004).  To
warrant reversal, an appellant must show both error and resulting prejudice.  Recco Tape & Label
Co., Inc. v. Barfield, 312 S.C. 214, 216, 439 S.E.2d 838, 840 (1994).  The
determination of the prejudicial effect of the evidence must be based on the
entire record and the result will generally turn on the facts of each case.  State
v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007).

LAW/ANALYSIS

“Relevant
evidence means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Rule 401, SCRE. “[E]vidence is relevant if it has a direct bearing
upon and tends to establish or make more or less probable the matter in
controversy.” State v. Staten, 364 S.C. 7, 36-37, 610 S.E.2d 823, 838
(Ct. App. 2005).

Appellant appeals the trial court’s rulings that
specific testimony given by two separate witnesses was relevant.  

I.  Mrs. Thurston’s
Testimony

During the solicitor’s direct examination of Mrs.
Thurston, she stated she first saw Appellant on the morning of the assault when
he woke her up.  The solicitor then asked Mrs. Thurston how the Appellant woke
her up.  Mrs. Thurston responded: “I had a bunch of things piled in front of
the door so I would be awoked [sic] because I was staying up all night because
I was scared he would come in the middle of the night.”  At this point,
Appellant’s trial attorney objected. 

Appellant contends
this testimony was offered to imply Mrs. Thurston had reason to fear him.  In
support of this contention, Appellant points out additional testimony given by
Mrs. Thurston, which followed the response quoted above, in which she stated
the Appellant came in ‘raging” and “hollering different things.”  Appellant
also points out that the solicitor referred to him as a “bully” during his
closing arguments.  However, Appellant’s trial attorney failed to object to the
additional testimony or the comments by the solicitor.  To properly preserve
an issue for review there must be a contemporaneous objection that is ruled upon by the trial court.  State v. Johnson, 363
S.C. 53, 58, 609 S.E.2d 520, 523 (2005).
Accordingly, this additional testimony and the solicitor’s comments are not
preserved for review.

The testimony that Appellant
objected to explained how Mrs. Thurston first encountered the Appellant on the
day of the assault.  Appellant had not been staying at the home since he and
Mrs. Thurston separated.  Mrs. Thurston was explaining how Appellant, who did
not live with her, was able to wake her up by entering her home.  She did not
say she was scared of Appellant but that she “was scared he would come in the middle of the night.”  The trial
court did not abuse its discretion in finding the evidence to be relevant.  The
testimony, by explaining how Appellant’s entry into Mrs. Thurston’s home had
awakened her, makes it more probable that he was at her home on the day of the
assault.                      

II.  Appellant’s Cross
Examination

During his cross examination of Appellant, the
solicitor asked Appellant: “Two days before that on April 30th, you had thrown
your wife around, hadn’t you?”  Appellant responded: “No sir. We had got into
an argument and I left.”  After discussing Appellant’s weight and stature and
the weight of Mrs. Thurston, the solicitor states that he would like to talk
about “the argument on the 30th.”  At this point, Appellant’s trial attorney
objected based on relevancy.  The trial court overruled the relevancy
objection. 

There
is no objection in the record to the specific questions or responses the Appellant
now points out and takes exception with.  The only objection to the testimony
came almost a full page in the record after Appellant first answered the
solicitor’s question about the alleged argument on April 30th and
almost a full page before the solicitor asked the other questions now
specifically pointed out by Appellant.  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.  Pye v. Estate
of Fox, 369 S.C. 555, 565, 633 S.E.2d 505, 510 (2006). 
Furthermore, given that Appellant had already answered the solicitor’s first
questions well before Appellant’s trial attorney objected, there was no
prejudicial effect from similar questions asked and answered following the
objection.  Accordingly, we find no error on the part of the trial court on
this issue.

CONCLUSION

For the reasons
stated above, the order of the trial court is

AFFIRMED.

STILWELL,
SHORT, and WILLIAMS JJ., concur.

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