State v. Johnson

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.

Nikeen D'Aundre Johnson, Appellant.

Appellate Case No. 2021-000674

Appeal From Sumter County
Kristi F. Curtis, Circuit Court Judge

Unpublished Opinion No. 2023-UP-376
Submitted October 1, 2023 – Filed November 22, 2023

AFFIRMED

Appellate Defender Sarah Elizabeth Shipe, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Ambree Michele Muller, both of
Columbia; and Solicitor Ernest Adolphus Finney, III, of
Sumter, all for Respondent.

PER CURIAM: Nikeen D'Aundre Johnson appeals his convictions for attempted
murder and two counts of assault and battery of a high and aggravated nature
(ABHAN) and his aggregate sentence of thirty years' imprisonment. Johnson
argues the trial court abused its discretion in admitting photographs of the victims
under Rule 403, SCRE.

We hold the trial court did not abuse its discretion in admitting the photographs.
See State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) ("In criminal
cases, the appellate court sits to review errors of law only."); State v. Clasby, 385
S.C. 148, 154, 682 S.E.2d 892, 895 (2009) ("The trial [court] has considerable
latitude in ruling on the admissibility of evidence and [its] decision should not be
disturbed absent prejudicial abuse of discretion."); Rule 403, SCRE ("[E]vidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, . . . or needless presentation of cumulative evidence."). 1 Initially,
Johnson failed to preserve any argument as to Exhibit 17 when he stated he had
"no objection" to its admission at trial. See State v. Benton, 338 S.C. 151, 156-57,
526 S.E.2d 228, 231 (2000) (holding an issue conceded at trial is not preserved for
appeal). As to Exhibits 7, 8, and 19, we find the probative value of the
photographs was minimal, insofar as Johnson did not dispute the nature of the
victims' injuries or that he was the shooter. See State v. Torres, 390 S.C. 618, 623,
703 S.E.2d 226, 228 (2010) ("Photographs calculated to arouse the sympathy or
prejudice of the jury should be excluded if they are irrelevant or not necessary to
substantiate material facts or conditions."); State v. Nelson, 440 S.C. 413, 424-427,
891 S.E.2d 508, 513-515 (2023) (holding the probative value of gruesome autopsy
photos of the victim was substantially outweighed by the danger of unfair
prejudice when the issues of malice and how the victim was killed were not in
dispute).

However, the photographs' depiction of the number and severity of the injuries at
the time they were sustained arguably bore on the issue of self-defense. See State
v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984) (enumerating the elements
of self-defense, including that "the defendant had no other probable means of
avoiding the danger of losing his own life or sustaining serious bodily injury than
to act as he did in this particular instance"); State v. Santiago, 370 S.C. 153, 161,
634 S.E.2d 23, 28 (Ct. App. 2006) (holding the defendant was not entitled to an
instruction on self-defense after considering all the evidence presented, including
that defendant shot the unarmed victim four times). And, State's Exhibit 19 had
probative value as it helped the State establish the "serious bodily injury" element
of ABHAN as to one of the victims. See S.C. Code Ann. § 16-3-600(B)(1)(a)-(b)
(2015). That victim did not testify, but one of the paramedics described the

1
We also note the circuit court properly exercised its discretion in declining to
admit two of the State's proposed photographs.
condition in which he found her when he responded to the scene. This photograph
corroborated his testimony by showing the location and extent of that victim's
injury.

Additionally, the photographs at issue had low potential for prejudicial effect: they
were taken at the hospital; they showed the wounds only; there was minimal blood
present; and the wounds had been, to some extent, treated and dressed. See also
State v. Jones, 440 S.C. 214, 262-63, 891 S.E.2d 347, 372 (2023) (finding the
danger of unfair prejudice substantially outweighed the probative value when the
photographs "depict the children's bodies in the advanced stages of
decomposition"); State v. Collins, 409 S.C. 524, 536, 763 S.E.2d 22, 28 (2014)
("[T]he standard is not simply whether the evidence is prejudicial; rather, the
standard under Rule 403, SCRE[,] is whether there is a danger of unfair prejudice
that substantially outweighs the probative value of the evidence.").

AFFIRMED. 2

MCDONALD and VINSON, JJ., and LOCKEMY, A.J., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.