State v. Ross

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.

William Ross, Appellant.

Appellate Case No. 2011-190816

Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2013-UP-316
Heard June 6, 2013 – Filed July 10, 2013

AFFIRMED

Appellate Defender Robert M. Pachak and Appellant
Defender Breen Richard Stevens, both of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Julie Kate Keeney, both of Columbia,
for Respondent.

PER CURIAM: William Ross was convicted of criminal sexual conduct (CSC)
in the third degree. He appeals, asserting the trial court improperly allowed the
solicitor to discuss first- and second-degree CSC in closing arguments. We affirm.
First, we question whether Ross has properly preserved his appellate argument for
review. At trial, Ross objected to the solicitor's closing on the basis that no
evidence of first- and second-degree CSC had been admitted, and the inclusion of
such comments by the solicitor was confusing to the jury. The crux of Ross's
argument on appeal, however, is that the solicitor's comments regarding the
offenses of first- and second-degree CSC were made in conjunction with argument
concerning whether the reasonable doubt standard was met, thereby leaving the
jury with the impression the State's burden of proof was lowered. Although he
clearly objected to the closing argument comments at trial, Ross never argued
below, as he does on appeal, that the solicitor's comments somehow lowered the
State's burden of proof. Because Ross never made the burden lowering argument
to the trial court, that argument is not preserved on appeal. See State v. Weston,
367 S.C. 279, 290, 625 S.E.2d 641, 647 (2006) (holding an issue that differs from
the objection raised at trial is procedurally barred from review); State v.
Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (finding an argument
advanced on appeal was not preserved for review because it was not raised and
ruled on below); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003)
("A party need not use the exact name of a legal doctrine in order to preserve it, but
it must be clear that the argument has been presented on that ground.").

As to the arguments made at trial, Ross does not, in his appellate brief, raise his
trial assertion that the solicitor's closing argument was confusing. He does,
however, include within his argument on appeal that no evidence of first- or
second-degree CSC was presented to the jury, and our law requires the solicitor to
confine himself to evidence adduced at trial. We find no reversible error on this
basis.

First, as argued by the solicitor, it appears the State was responding to defense
counsel's closing argument in referencing the fact this was not a first- or second-
degree CSC case. Because defense counsel argued to the jury facts that would
indicate no violence or aggravated force occurred and that the lack of evidence
indicated Ross was not guilty, we believe, considered in context, the solicitor's
closing argument was an appropriate response to statements or arguments made by
the defense. We further find the solicitor's comments did not so infect the trial
with unfairness as to make the resulting conviction a denial of due process. See
State v. Finklea, 388 S.C. 379, 385, 697 S.E.2d 543, 547 (2010) (noting a trial
court is vested with broad discretion in dealing with the range and propriety of
closing arguments and its rulings on such matters ordinarily will not be disturbed);
id. at 386, 697 S.E.2d at 547 ("The appellant has the burden of showing that any
alleged error deprived him of a fair trial. The relevant question is whether the
solicitor's action so infected the trial with unfairness as to make the resulting
conviction a denial of due process. The Court must review the argument in the
context of the entire record."); Vaughn v. State, 362 S.C. 163, 169, 607 S.E.2d 72,
75 (2004) (noting improper closing argument by the solicitor may be excused
under the "invited reply" doctrine if the solicitor's conduct was an appropriate
response to statements or arguments made by the defense); id. at 169-70, 607
S.E.2d at 75 ("Once a defendant opens the door, the relevant question in
determining if a defendant's rights were violated is whether the solicitor's
comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.").

Additionally, we note the solicitor specifically stated in opening arguments before
the jury that this was not a first- or second-degree CSC case, but it was a matter
involving CSC in the third degree. Because this same argument was made to the
jury without objection in the State's opening argument, it is difficult to see how
Ross was prejudiced by the State's closing argument in this regard. See State v.
Tyner, 273 S.C. 646, 656, 258 S.E.2d 559, 564-65 (1979) (holding it was difficult
to discern how appellant was so irreparably prejudiced as to justify a mistrial based
upon the solicitor playing a portion of appellant's taped confession during closing
argument when the jury had been permitted to take the tape to the jury room and
had already heard the tape during the course of the trial).

For the foregoing reasons, Ross's conviction is

AFFIRMED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.