State v. Sweet

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Josh S. Sweet,       
Appellant.

Appeal From Horry County

John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2003-UP-393

Submitted April 18, 2003 – Filed June
12, 2003   

AFFIRMED

Senior Assistant Appellate Defender Wanda H. Haile, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney
General John W. McIntosh; Assistant Deputy Attorney General Charles H. Richardson;
Senior Assistant Attorney General Harold M. Coombs,Jr., of Columbia; John Gregory
Hembree, of Conway; for Respondent.

PER CURIAM: Josh S. Sweet (Sweet) appeals from his conviction
for assault and battery with intent to kill (ABIK) arguing the trial court erred
in admitting his brass knuckles and a photograph of victim’s stab wound into
evidence. 

FACTS

On the night of June 6, 1999, Matthew J. Bennett (Victim) and his
friends were celebrating graduation and talking with some girls at the Viking
Motel in Myrtle Beach.  At some point during this informal mixer with the girls,
Sweet and his own gang of friends exchanged insults with Joshua Zain (Victim’s
friend).  After the hotel manager asked the two groups to leave the motel premises,
they met up again a couple of blocks down the street.  The confrontation between
the boys escalated until Victim and Sweet pushed one another and Sweet stabbed
Victim in the chest.  Prior to the stabbing and immediately following it, Sweet
brandished brass knuckles.

Sweet was arrested and convicted of  ABIK.  He was sentenced to ten years in
prison.

DISCUSSION

Sweet contends the trial court
erred in admitting the brass knuckles into evidence.  We disagree.

Prior to trial, Sweet moved to suppress evidence that he was in possession
of brass knuckles because he had been convicted of that offense in summary court
and the brass knuckles were not used on the victim.  The State noted that Sweet
had the knuckles prior to, during and after the offense.  The State argued the
knuckles went to Sweet’s intent at the time the altercation occurred and to
corroborate the testimony of eyewitnesses who saw Sweet with the knuckles at
the scene.  The trial court denied Sweet’s motion to suppress in limine
finding Sweet’s possession of the brass knuckles showed intent.  The court suppressed
any evidence of Sweet’s prior conviction in city court for having the knuckles.

At trial, Victim testified, without objection, that he had seen Sweet with
brass knuckles at the motel.  An eyewitness to the stabbing testified,
without objection, Sweet held brass knuckles in one hand and something shiny
in the other when he pushed victim.  The same eyewitness testified Sweet
brandished the brass knuckles and threatened him when the witness pursued him
after the stabbing.  An Officer testified, without objection, Sweet pulled out
his brass knuckles in a threatening way during the arrest.  Finally, the brass
knuckles were introduced into evidence.  The State’s brief indicates the admission
of the knuckles themselves came in over Sweet’s objection.  However, the record
on appeal only reveals a bench conference was held off the record just prior
to the admission of the evidence.  There is nothing in the record to indicate
Sweet made any objection on the record to the multiple testimonies regarding
the knuckles or their ultimate admission after the initial motion in limine.

Even if we were to find the admission of the brass knuckles to be improper,
Sweet would still fail.  Under a harmless error analysis we conclude that the
admission of the knuckles themselves was cumulative to the testimony of several
witnesses regarding Sweet’s possession and use of them before, during and immediately
following the stabbing.  No error.

Next, Sweet insists the trial court erred in admitting a photograph of the
Victim’s stab wound.  We disagree.

Prior to trial, Sweet moved
to suppress the photograph on the ground that it was more prejudicial than probative
because it was a close-up photo of a bloody, open wound.  Sweet also noted that
there would be testimony form a physician regarding the nature and description
of the wound.  (R. 3-4)  The trial court denied the motion finding the
photograph depicting the nature of the wound and its size established evidence
of ABIK and was thus more probative than prejudicial. (R. 4)

     During trial, the photograph of the chest wound was published to
the jury without objection.  The relevance, materiality, and admissibility of
photographs are matters within the sound discretion of the trial court and a
ruling will be disturbed only upon a showing of abuse of discretion.  State
v. Rosemond, 335 S.C. 593, 518 S.E.2d 588 (1999).  If the offered photograph
serves to corroborate testimony, it is not an abuse of discretion to admit it. 
State v. Jarell, 350 S.C. 90, 564 S.E.2d 362 (Ct. App. 2002).  The photograph
showing a stab wound to the Victim’s chest corroborated witnesses’ testimony
about the stabbing and the aftermath. 

Accordingly, we must

AFFIRM.

CURETON, ANDERSON and HUFF, JJ., concur.