State v. Johnson

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Howard B. Johnson,       
Appellant.

Appeal From Fairfield County

Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2003-UP-707

Submitted September 17, 2003 – Filed December 9, 2003

APPEAL DISMISSED

Assistant Appellate Defender Eleanor Duffy Cleary, Office
of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W.
McIntosh, Assistant Deputy Attorney Charles H. Richardson, all of Columbia; 
and Solicitor John R. Justice, of Chester, for Respondent.

PER CURIAM: Appellant appeals his conviction on an assault and battery
with intent to kill charge, arguing that the trial court erred in allowing testimony
that marijuana was found on Appellant the night of his arrest. We affirm

FACTS

Defendant Johnson was involved in an altercation
with two or three persons at the Winnsboro Motor Inn where he was staying. During
the fight, Johnson used a box cutter and cut the face of one of his opponents.
A jury convicted Johnson on a charge of assault and battery with intent to kill.
The judge gave him a six-year sentence.

Johnson maintains that the victim and two other
persons accosted him in an attempted robbery and that he used the box cutter
in self-defense. He maintains that he just happened to be carrying the box cutter
because he was returning from work. Johnson also contends that at least one
of the would-be robbers was carrying a knife. However, the victim testified
that Johnson started the altercation by calling her “bitch.” There was additional
testimony that Johnson first argued with the group, then went back to his room,
presumably to get the box cutter, and returned to continue the argument. On
direct examination, Johnson admitted that he had been in “trouble with the law,”
but insisted that nothing had happened in the last twenty years. He also denied
being involved with drugs.

ISSUE

Did the trial court err by allowing testimony that a small
amount of marijuana was found on Johnson on the night of his arrest where the
evidence did not tend to show motive, intent, the absence of mistake or accident,
a common scheme or plan, or the identity of the perpetrator, and where the defendant
did not open the door?

Pro se Issues:

(1) Did the trial court
err by admitting the impeachment evidence against Johnson where Johnson did
not receive sufficient advance notice, as required by Rule 609(b), SCRE?

(2) Did the trial court
err by allowing the state to impeach Johnson using criminal conviction dating
back more than ten years?

(3) Did the trial court err by allowing
the evidence concerning the 1997 incident since that evidence was prejudicial
toward Johnson?

ANALYSIS

“Evidence of prior crimes or misconduct is inadmissible
to prove the specific crime charged unless the evidence tends to establish (1)
motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme
or plan embracing the commission of two or more crimes so related to each other
that proof of one tends to establish the proof of the other; or (5) the identity
of the person charged with the present crime.” State v. Tutton, 354 S.C.
316, 325, 580 S.E.2d 186, 189 (Ct. App. 2003) (citing State v. Lyle,
125 S.C. 406, 118 S.E. 803 (1923); Rule 404(b)). However, when a defendant testifies
on an issue, he opens the door for the admission of contrary evidence on that
issue. See State v. Dunlap, 353 S.C. 539, 541, 579 S.E.2d 318,
319 (2003) (finding that where defense ‘opened the door’ by claiming that the
defendant had no connection to the sale of drugs, the state was entitled to
rebut that claim by delving into the defendant’s drug record).

Here Johnson testified, “mostly people staying
in the front was working people. Most of the people staying in the back was
drug addicts.” The trial judge ruled that Johnson opened the door by attempting
to create the impression that he was not involved with drugs because he lived
in the front, unlike his victim who lived in the back. Therefore, the admission
of the drug found on Johnson was not error. Counsel’s petition to be relieved
is granted.

Pro se Issues.

The three issues that Johnson raises on appeal
were not preserved during the trial and therefore the Court cannot address them.
See Humbert v. State, 345 S.C. 332, 548 S.E.2d 862 (2001) (ruling
that issues not raised and ruled upon in the trial court will not be considered
on appeal); State v. Bryam, 326 S.C. 107, 485 S.E.2d 360 (1997) (holding
that this principle applies even if the arguments advanced are constitutional);
State v. Burton, 326 S.C. 605, 486 S.E.2d 762 (Ct. App. 1997) (explaining
that the failure to object at the time the evidence is offered constitutes a
waiver of the right to have the issue considered on appeal).

APPEAL DISMISSED.

Huff, Stilwell, and Beatty, JJ., concur.