State v. Ayer

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.

Rodsheen Ayer, Appellant.

Appellate Case No. 2015-002416

Appeal From Orangeburg County
Maite Murphy, Circuit Court Judge

Unpublished Opinion No. 2018-UP-105
Heard February 5, 2018 – Filed March 7, 2018

AFFIRMED

Appellate Defenders Victor R. Seeger and Susan Barber
Hackett, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia; and Solicitor David Michael Pascoe,
Jr., of Orangeburg, all for Respondent.

PER CURIAM: Rodsheen Ayer appeals his conviction for attempted murder and
sentence of thirty years' imprisonment. On appeal, Ayer argues the trial court erred
in (1) admitting a photograph of him in a hospital room that violated his
expectation of privacy under the Fourth Amendment to the United States
Constitution and right to privacy under the South Carolina Constitution and (2)
allowing officers to testify about statements from individuals they interviewed
during the course of the investigation. We affirm.

HOSPITAL PHOTOGRAPH

Ayer argues the trial court erred in admitting the photograph of him in his hospital
room because officers violated his Fourth Amendment rights by "entering his room
without a warrant and taking [the] photograph of him." Ayer also contends the
admission of the photograph violated his right to privacy under the South Carolina
Constitution and urges the court to hold "individuals have a right to be free from
government intrusions in a hospital room." We disagree.

We decline to address Ayer's argument that the officer's search of his hospital
room violated his rights because we hold any alleged error would have been
harmless. Generally, appellate courts will not set aside convictions due to
insubstantial error not affecting the result. State v. Sherard, 303 S.C. 172, 176, 399
S.E.2d 595, 597 (1991). The officer was only in Ayer's hospital room because he
was responding to a call from a hospital employee about a patient with a gunshot
wound. See S.C. Code Ann. § 16-3-1072 (2015) (requiring medical personnel to
report gunshot wounds to the local sheriff's department within a reasonable time
after a request for treatment). When the officer entered Ayer's hospital room, Ayer
voluntarily spoke with the officer and reported he was the victim of a crime. Ayer
was cooperative and did not ask the officer to leave or refuse to speak with him.
Ayer told the officer someone robbed him outside of a nightclub and shot him in
the arm when he tried to escape. The officer took the photograph as part of his
investigation of the crime Ayer reported. We see no reason why the photograph
prejudiced Ayer. In fact, Ayer's counsel struggled at trial to articulate what
prejudice the photograph caused Ayer, stating "it's a question of whether they can
take his picture when he's clothed or not" and "the fact that they would not have
been able to photograph him in that condition whatsoever." 1 We find no reason a
shirtless photograph would, in itself, prejudice Ayer in this criminal trial. See State
v. Black, 400 S.C. 10, 16–17, 732 S.E.2d 880, 884 (2012) ("To warrant reversal

1
At oral argument, Ayer asserted the photograph was prejudicial because tattoos
are visible on his chest. However, this argument was never made to the trial court
and is unpreserved. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693
(2003) ("In order for an issue to be preserved for appellate review, it must have
been raised to and ruled upon by the trial [court].").
[for the admission of evidence], an error must result in prejudice to the appealing
party."). The State admitted similar photographs without objection from Ayer—
including the photographs of Ayer sleeping on Minick's couch with his arm in a
cast and the photographs of Ayer after he was arrested. Therefore, we find any
error in the admission of the photograph harmless. See State v. Herring, 387 S.C.
201, 215, 692 S.E.2d 490, 497 (2009) (finding any error in an illegal search was
harmless).

HEARSAY

Ayer argues the trial court erred in admitting testimony by Sergeant John Stokes
and Corporal Leonarde Cain regarding what they learned from individuals during
their investigation because it was inadmissible hearsay. Ayer contends the officers'
testimony went beyond what was necessary to explain their actions in the
investigation by informing the jury "what the investigation revealed, to whom the
officers spoke, the content of those discussions, and how those discussions
compared with other evidence in the case."

We agree that Sergeant Stokes's and Corporal Cain's testimony was hearsay;
however, we hold the trial court's error is not reversible because Ayer was not
prejudiced by the testimony. "The admission or exclusion of evidence is a matter
addressed to the sound discretion of the trial court and its ruling will not be
disturbed in the absence of a manifest abuse of discretion accompanied by
probable prejudice." State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847–48
(2006). "An abuse of discretion occurs when the conclusions of the trial court
either lack evidentiary support or are controlled by an error of law." Id. at 429–30,
632 S.E.2d at 848. "To show prejudice, the appellant must prove 'that there is a
reasonable probability the jury's verdict was influenced by the challenged evidence
or the lack thereof.'" State v. Brown, 411 S.C. 332, 339, 768 S.E.2d 246, 249 (Ct.
App. 2015) (quoting Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609
S.E.2d 506, 509 (2005)).

"'Hearsay' is a statement . . . offered in evidence to prove the truth of the matter
asserted" and is not admissible at trial unless an exception or exclusion applies.
Rules 801(c) & 802, SCRE. "[A]n out of court statement is not hearsay if it is
offered for the limited purpose of explaining why a government investigation was
undertaken." State v. Brown, 317 S.C. 55, 63, 451 S.E.2d 888, 894 (1994).
However, in State v. King, our supreme court "caution[ed] against the use and
admission of 'investigative information'" because "it appear[ed prosecutors were
using it as] an attempt to circumvent the rules against hearsay." Op. No. 27744
(S.C. Sup. Ct. filed Oct. 25, 2017) (Shearouse Adv. Sh. No. 40 at 38–39). The
court clarified the question of whether investigative information is admissible
"involves a straightforward hearsay analysis." Id. at 37. "While [the testimony]
may be couched in terms of explaining an officer's conduct during an investigation,
it may not be used to offer the substance of an out-of-court statement that would
otherwise violate our state's rules against hearsay." Id. at 39.

At trial, the officers repeatedly testified to specific statements made by witnesses.
Sergeant Stokes indicated Clark told him one of the suspects (1) was named
Terrance with the last name of either Johnson or Bowman; (2) went to school at
Denmark Technical College; and (3) was from the Bowman area. Sergeant Stokes
also testified Clark told him the car the three suspects drove on the night of the
incident was a white Chevrolet Impala or Malibu. Instead of testifying that he
developed Johnson as a suspect after interviewing Clark, Sergeant Stokes
recounted his conversations with Clark. Similarly, Corporal Cain testified to the
following specific statements by Tenaja Minick: (1) Johnson and Morrison were
friends; (2) a man named "Rah" from New York was staying with her and
Morrison; and (3) Morrison was driving her white Chevrolet Impala on the night of
the incident. Corporal Cain indicated someone with the Lexington County
Sheriff's Department told him an individual received treatment at a hospital in
Lexington for a gunshot wound. Corporal Cain also testified about his
conversations with one of Johnson's family members who informed him she took
Johnson to Mississippi. We believe these specific statements were only relevant to
prove Johnson and Ayer committed the crime in question, and they used Minick's
car to do it. These statements do not describe the investigative process or explain
the actions the officers took as a result of the interviews. There was no other
purpose for this testimony other than to prove the truth of the matter asserted and,
therefore, we find the testimony was hearsay.

However, we find Ayer was not prejudiced by the officers' testimony because their
testimony was cumulative to the other testimony at trial. See State v. Townsend,
321 S.C. 55, 59, 467 S.E.2d 138, 141 (Ct. App. 1996) (explaining when "hearsay is
merely cumulative to other evidence, its admission is harmless"). Clark, Minick,
and Johnson's family member all testified at trial. In his trial testimony, Clark
identified Johnson as one of the men and indicated he also identified Johnson as a
suspect in a photograph lineup the police showed him. Minick's trial testimony
almost exactly matched her statements to Corporal Cain. She testified she knew
Johnson through Morrison. She also indicated she knew Ayer as "Rah" and that he
was visiting from New York and staying with her at that time. Minick recalled that
Morrison borrowed her white Chevrolet Impala on the night of the incident and
returned it to her with blood in the backseat. Similarly, Johnson's family member
indicated she took him to Mississippi after the incident. Furthermore, an
emergency room nurse testified Ayer arrived at the hospital with a gunshot wound
and gave the name "Emanuel Ayer." Sergeant David Day also testified about
speaking with Ayer at the hospital. Therefore, we hold the trial court abused its
discretion in admitting the officers' testimony but that error is not reversible
because the testimony was not prejudicial.

CONCLUSION

Accordingly, Ayer's conviction for attempted murder is

AFFIRMED.

SHORT, THOMAS, and HILL, JJ., concur.