State v. Lassiter

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT 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.

Hardy Lassiter, Appellant.

Appeal From Spartanburg County

 J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2008-UP-688

Submitted December 1, 2008 – Filed
December 11, 2008

AFFIRMED

Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Deborah R.J. Shupe, all of Columbia; Solicitor Harold W.
Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM: Hardy
Lassiter was convicted of two counts of armed robbery, two counts of possession
of a firearm during the commission of a violent crime, and two counts of
pointing and/or presenting a firearm.  On appeal, Lassiter argues the trial
court erred in (1) refusing to suppress the clothing worn during the commission
of the alleged robberies and (2) refusing to charge the jury on “mere presence.”
 We affirm[1] pursuant to Rule 220, SCACR, and the following
authorities:

1.  The trial court did not
err refusing to suppress Lassiter’s clothing because police seized the clothing
while Lassiter was in police custody following a lawful arrest.  U.S. v.
Robinson, 414 U.S. 218, 224 (1973) (“It is well settled that a search
incident to a lawful arrest is a traditional exception to the warrant
requirement of the Fourth Amendment.”); U.S. v. Edwards, 415 U.S. 800,
803-04 (1974) (“[B]oth the person and the property in his immediate possession
may be searched at the station house after the arrest has occurred at another
place and if evidence of crime is discovered, it may be seized and admitted in
evidence.  Nor is there any doubt that clothing or other belongings may be
seized upon arrival of the accused at the place of detention and later
subjected to laboratory analysis or that the test results are admissible at
trial.”); Hudson v. Palmer, 468 U.S. 517, 528 (1984) (holding a prisoner’s
expectation of privacy is diminished as a consequence of confinement). 

2.  The trial court did not
err in failing to instruct the jury on “mere presence” because the evidence
presented at trial did not support such an instruction.  State v. Lee-Grigg,
374 S.C. 388, 405-06, 649 S.E.2d 41, 50 (Ct. App. 2007) (holding a trial court
has a duty to give a requested instruction that is supported by the evidence
and correctly states the law applicable to the issues);  State v. Stokes,
339 S.C. 154, 163, 528 S.E.2d 430, 434 (Ct. App. 2000) (holding a mere presence
instruction is applicable if there is a doubt over whether the defendant is
guilty as an accomplice to a crime); State v. Dennis, 321 S.C. 413, 420,
468 S.E.2d 674, 678 (Ct. App. 1996) (holding mere presence applies where the
defendant is charged with possession of contraband as a result of being present
where contraband was found); State v. Baccus, 367 S.C. 41, 55, 625
S.E.2d 216, 223 (2006) (“When guilt is conclusively proven by competent
evidence, such that no other rational conclusion could be reached, this [c]ourt
will not set aside a conviction for insubstantial errors not affecting the
result”).  We believe neither mere presence situation applies to the present
case, and in any event believe the State proved Lassiter’s guilt conclusively
by competent evidence.

AFFIRMED.

WILLIAMS,
PIEPER, and GEATHERS, JJ., concur.

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