State v. Killian

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Raymond Gene Killian,       
Appellant.

Appeal From Lancaster County

Costa M. Pleicones, Circuit Court Judge

Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2003-UP-023

Submitted October 22, 2002 – Filed January
8, 2003

AFFIRMED

Tara Dawn Shurling, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor
John R. Justice, of Chester, for respondent.

PER CURIAM:          Affirmed
pursuant to Rule 220(b)(2), SCACR, and the following authorities:  As to Issue
I:  State v. Needs, 333 S.C. 134, 157-58, 508 S.E.2d 857, 869 (1998)
(stating a motion for a new trial based on after-acquired evidence is addressed
to the sound discretion of the trial judge and will not be disturbed absent
an abuse of discretion); State v. Spann, 334 S.C. 618, 619-20, 513 S.E.2d
98, 99 (1999) (stating to prevail in a motion for a new trial based on after-acquired
evidence, an appellant must show the evidence:  (1) would change the result
if the new trial were granted; (2) was discovered following the trial; (3) could
not, in the exercise of due diligence, have been discovered prior to trial;
(4) is material; and (5) is not merely cumulative or impeaching); State v.
Deese, 266 S.C. 534, 538, 225 S.E.2d 175, 176 (1976) (stating when testimony
is in conflict and depends on the credibility of the new evidence, it is the
duty of the trial judge to assess the evidence); State v. Parker, 249
S.C. 139, 141, 153 S.E.2d 183, 184 (1967) (stating the credibility of the newly-discovered
evidence is a matter for the determination of the trial judge and his judgment
will not be disturbed absent an error of law or an abuse of discretion).

As to Issue II:  State v. Saltz, 346 S.C.
114, 121, 551 S.E.2d 240, 244 (2001) (“The admission or exclusion of evidence
is left to the sound discretion of the trial judge, whose decision will not
be reversed on appeal absent an abuse of discretion.”); Rule 401, SCRE (stating
evidence is relevant if it has “any tendency to make, the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence”); Rule 403, SCRE (stating relevant
evidence may be excluded if the danger of unfair prejudice to the defendant
outweighs the probative value of the State’s case); State v. Ford, 334
S.C. 444, 453, 513 S.E.2d 385, 389 (Ct. App. 1999) (stating unfair prejudice
refers to evidence tending to suggest decision on an improper basis, not the
damage to a defendant’s case resulting from the legitimate probative force of
the evidence); State v. Hamilton, 344 S.C. 344, 357, 543 S.E.2d 586,
594 (Ct. App. 2001) (quoting United States v. Green, 887 F.2d 25, 27
(1st Cir. 1989)) (“A trial court’s decision regarding the comparative probative
value versus prejudicial effect of evidence should be reversed only in ‘exceptional
circumstances.’”); First Savings Bank v. McLean, 314 S.C. 361, 363, 444
S.E.2d 513, 514 (1994) (stating when an “[a]ppellant fails to provide arguments
or supporting authority for his assertion,” the issue is deemed to be abandoned
on appeal).

AFFIRMED.
[1]

GOOLSBY, STILWELL, and HOWARD, JJ.,
concur.

[1] Because oral argument would not aid the Court
in resolving any issue on appeal, we decide this case without oral argument
pursuant to Rule 215, SCACR.