State v. Bartee

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

James Richard Bartee, Jr., Appellant.

Appellate Case No. 2013-001895

Appeal From Oconee County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2016-UP-340
Heard March 16, 2016 – Filed June 29, 2016

AFFIRMED

Katherine Carruth Goode, of Winnsboro, and Jack B.
Swerling, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia; and Solicitor Christina Theos Adams, of
Anderson, for Respondent.

PER CURIAM: James Richard Bartee, Jr. appeals his conviction for solicitation
to commit a felony, arguing the trial court erred in (1) allowing questioning
concerning a suspension in his employment history and denying his motion for a
mistrial based on that questioning; (2) allowing a witness to give a subjective,
speculative interpretation of certain statements he allegedly made; and (3)
admitting a disk containing the audio recording of a conversation with him,
admitting a purported transcript of that recording, and limiting his cross-
examination of a witness with respect to that recording. We affirm pursuant to
Rule 220(b), SCACR, and the following authorities:

1. As to Bartee's argument that the trial court erred in allowing testimony
concerning his employment suspension and in denying his motion for a mistrial:
State v. Brown, 402 S.C. 119, 125 n.2, 740 S.E.2d 493, 496 n.2 (2013) (stating
for an issue to be preserved for appellate review it must have been raised to and
ruled upon by the trial court); State v. Dickman, 341 S.C. 293, 295, 534 S.E.2d
268, 269 (2000) (stating a party cannot argue one ground below and then argue
another ground on appeal); Wierszewski v. Tokarick, 308 S.C. 441, 444 n.2, 418
S.E.2d 557, 559 n.2 (Ct. App. 1992) ("An issue is not preserved for appeal
merely because the trial court mentions it."); State v. Hoffman, 312 S.C. 386,
393, 440 S.E.2d 869, 873 (1994) ("A contemporaneous objection is required to
properly preserve an error for appellate review."); State v. Lynn, 277 S.C. 222,
226, 284 S.E.2d 786, 789 (1981) (stating the failure to make a proper
contemporaneous objection to the admission of evidence "cannot be later
bootstrapped by a motion for a mistrial" and waives any objection to the
evidence); State v. Gilmore, 396 S.C. 72, 84, 719 S.E.2d 688, 694 (Ct. App.
2011) (stating an issue conceded at trial cannot be argued on appeal); State v.
Bantan, 387 S.C. 412, 418, 692 S.E.2d 201, 204 (Ct. App. 2010) (finding the
defendant waived any objection to the denial of his mistrial motion when he
refused the curative instruction offered by the trial court).

2. As to Bartee's argument that Nick Blackwell's testimony was speculative:
Gilmore, 396 S.C. at 84, 719 S.E.2d at 694 (stating an issue conceded at trial
cannot be argued on appeal).

3. As to Bartee's argument that Blackwell's testimony was contradictory and
lacked credibility: State v. Needs, 333 S.C. 134, 144, 508 S.E.2d 857, 862
(1998) ("After the trial court properly has determined a witness is competent,
the resolution of the credibility of the witness is within the province of the
jury.").
4. As to Bartee's argument that Blackwell's testimony should have been excluded
under Rule 403, SCRE: Rule 403, SCRE ("Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."); Judy v. Judy, 384 S.C. 634, 641, 682 S.E.2d 836, 839
(Ct. App. 2009) ("The trial court's ruling to admit or exclude evidence will only
be reversed if it constitutes an abuse of discretion amounting to an error of
law."); State v. Lee, 399 S.C. 521, 527, 732 S.E.2d 225, 228 (Ct. App. 2012)
("A trial court has particularly wide discretion in ruling on Rule 403
objections.").

5. As to Bartee's argument that the trial court erred in admitting the audio
recordings: State v. Mitchell, 399 S.C. 410, 421, 731 S.E.2d 889, 895-96 (Ct.
App. 2012) ("The question of whether to admit evidence under [Rules 1001 to
1004, collectively known as the best evidence rule,] is . . . addressed to the
discretion of the trial court." (alteration in original) (quoting State v. Halcomb,
382 S.C. 432, 443-44, 676 S.E.2d 149, 154-55 (Ct. App. 2009))); Rule 1002,
SCRE ("To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as otherwise
provided in these rules or by statute."); Rule 1001(3), SCRE ("An 'original' of a
writing or recording is the writing or recording itself or any counterpart
intended to have the same effect by a person executing or issuing it."); Mitchell,
399 S.C. at 421, 731 S.E.2d at 896 (finding digital photographs downloaded
from a camera onto a computer and then copied onto a disk were the "original"
photographs pursuant to Rule 1001, SCRE); id. (noting the defendant had the
opportunity to cross-examine the owner of the digital camera and the police
officers as to the handling of the photographs and disk on which the
photographs were downloaded); State v. Freiburger, 366 S.C. 125, 134, 620
S.E.2d 737, 741 (2005) (stating for the admission of non-fungible evidence, a
strict chain of custody is not required); State v. Aragon, 354 S.C. 334, 336-37,
579 S.E.2d 626, 627 (Ct. App. 2003) (stating that establishing the chain of
custody of an audio tape was not necessary for the tape's admissibility because
the tape was otherwise authenticated); Rule 901(a), SCRE ("The requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.").
6. As to Bartee's argument that the trial court erred in allowing the jury to use the
court reporter's transcript of the audio recordings while the recordings were
being played in the courtroom: United States v. Collazo, 732 F.2d 1200, 1203
(4th Cir. 1984) ("Whether to allow the use of transcripts to aid in the
presentation of tape recorded evidence is within the [trial] court's sound
discretion."); State v. Winkler, 388 S.C. 574, 585, 698 S.E.2d 596, 602 (2010)
(finding the trial court did not abuse its discretion by allowing the jury to
review a 911 call transcript while the 911 tape was replayed in the courtroom,
which mirrored the way the evidence was presented at trial).

7. As to Bartee's argument that the trial court erred in allowing the jury to take the
court reporter's transcript of the audio recordings into the jury room during
deliberations: Hoffman, 312 S.C. at 393, 440 S.E.2d at 873 ("A
contemporaneous objection is required to properly preserve an error for
appellate review."); State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399
(1984) ("[A] party 'cannot complain of an error which his own conduct has
induced.'" (quoting State v. Worthy, 239 S.C. 449, 465, 123 S.E.2d 835
(1962))); Gilmore, 396 S.C. at 84, 719 S.E.2d at 694 (stating an issue conceded
at trial cannot be argued on appeal).

8. As to Bartee's argument that the trial court erred in limiting his cross-
examination of Agent Michael Sloan regarding the audio recordings: State v.
Aleksey, 343 S.C. 20, 33-34, 538 S.E.2d 248, 255 (2000) ("The right to a
meaningful cross-examination of an adverse witness is included in the
defendant's Sixth Amendment right to confront his accusers. This does not
mean, however, that trial courts conducting criminal trials lose their usual
discretion to limit the scope of cross-examination." (citation omitted)); id. at 34,
538 S.E.2d at 255 ("On the contrary, 'trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, witness' safety, or interrogation that is
repetitive or only marginally relevant.'" (quoting Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986))).

9. As to Bartee's argument that the trial court denied his due process right to
meaningful review by refusing to allow him to proffer additional testimony
from Agent Sloan: Brown, 402 S.C. at 125 n.2, 740 S.E.2d at 496 n.2 (stating
for an issue to be preserved for appellate review the issue must have been raised
to and ruled upon by the trial court).
AFFIRMED.

LOCKEMY, C.J., and WILLIAMS and MCDONALD, JJ., concur.