State v. Sherley

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.

William Earl Sherley, Appellant.

Appellate Case No. 2019-000302

Appeal From Pickens County
Perry H. Gravely, Circuit Court Judge

Unpublished Opinion No. 2021-UP-287
Submitted May 1, 2021 – Filed August 4, 2021

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, all for Respondent.

PER CURIAM: William Earl Sherley appeals his conviction for lewd act upon a
child and sentence of ten years' imprisonment, suspended upon service of three
years' imprisonment and three years' probation. On appeal, Sherley argues the trial
court erred in denying his motion in limine to prohibit testimony from several
witnesses about out-of-court statements by the victim and holding the testimony
was admissible under the "time and place" exception of Rule 801(d)(1)(D), SCRE.

In his brief to this court, Sherley admitted he did not make a contemporaneous
objection to the testimony when it was presented during trial. Moreover, the State
called the victim to testify before it presented the testimony at issue, and neither
party referenced "time and place" corroborating testimony during opening
arguments. Therefore, we hold Sherley failed to preserve this issue for appellate
review, and we affirm his conviction and sentence pursuant to Rule 220(b),
SCACR, and the following authorities: State v. Smith, 337 S.C. 27, 32, 522 S.E.2d
598, 600 (1999) ("A ruling in limine is not final; unless an objection is made at the
time the evidence is offered and a final ruling procured, the issue is not preserved
for review."); State v. Wiles, 383 S.C. 151, 156, 679 S.E.2d 172, 175 (2009)
("There is an exception to this general rule when a ruling on the motion in limine is
made 'immediately prior to the introduction of the evidence in question.'" (quoting
State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001))); id. at 157, 679
S.E.2d at 175 (holding that even when the evidence in dispute does not
immediately follow the motion in limine, the issue is preserved for appellate
review if the trial court clearly indicated its ruling was final rather than
preliminary); State v. Pace, 316 S.C. 71, 74, 447 S.E.2d 186, 187 (1994) (finding
the defense counsel's failure to object to disparaging personal remarks by the trial
court regarding counsel's age and gender did not amount to a waiver of the issue on
appeal because "the tone and tenor of the trial [court's] remarks . . . were such that
any objection would have been futile"); Hendrix v. E. Distrib., Inc., 320 S.C. 218,
219, 464 S.E.2d 112, 113 (1995) (holding this court should not have addressed an
issue that was not preserved for appellate review), cited in Roddey v. Wal-Mart
Stores E., L.P., 422 S.C. 344, 348, 811 S.E.2d 785, 787 (2018).

AFFIRMED.1

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.

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