State v. Hillerby

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.

Justin Hillerby, Appellant.

Appellate Case No. 2010-165126

Appeal From Berkeley County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2013-UP-300
Heard June 5, 2013 – Filed July 3, 2013

AFFIRMED

Tricia A. Blanchette, of Law Office of Tricia A.
Blanchette, LLC, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia, for Respondent.

PER CURIAM: Justin Hillerby appeals his conviction and sentence for homicide
by child abuse, arguing the trial court erred in (1) refusing to suppress statements
attributed to him, (2) admitting evidence of prior bad acts, and (3) admitting
irrelevant testimony. We affirm.

A ruling admitting or excluding evidence is within the sound discretion of the trial
court. State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006). An
appellate court will not disturb such a ruling absent "a manifest abuse of discretion
accompanied by probable prejudice." Id. at 429, 632 S.E.2d at 848. "An abuse of
discretion occurs when the conclusions of the trial court either lack evidentiary
support or are controlled by an error of law." Id. at 429-30, 632 S.E.2d at 848.

1. First, we find Hillerby failed to preserve for appellate review the issue of
whether the trial court erred in admitting the statements he gave on September 17
and 18, 2008. A party who consents to the admission of evidence he challenged
prior to trial waives "any direct challenge to the admission of the evidence." State
v. DiCapua, 383 S.C. 394, 399, 680 S.E.2d 292, 294 (2009). Here, Hillerby
affirmatively stated he did not object to the admission of the statements. By doing
so, he waived his right to challenge the admission of the statements on appeal.

2. Next, Hillerby asserts the trial court erred in admitting Brandon's and
Courtney's testimony concerning his behavior toward Victim during the afternoon
before Victim's death. We find Hillerby failed to preserve the portion of his
argument relating to improper procedure. As to the portion of Hillerby's argument
that is preserved, we affirm.

Hillerby did not raise to the trial court his argument that it followed improper
procedure by ruling Brandon's and Courtney's testimony was admissible without an
adequate showing of the content of their testimony. A party may not argue one
ground to the trial court and another ground on appeal. State v. Haselden, 353 S.C.
190, 196, 577 S.E.2d 445, 448 (2003). However, "[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." State v. Dunbar, 356 S.C. 138, 142,
587 S.E.2d 691, 694 (2003). An argument is preserved if it is "sufficiently specific
to bring into focus the precise nature of the alleged error so that it [could] be
reasonably understood by the trial [court]." McKissick v. J.F. Cleckley & Co., 325
S.C. 327, 344, 479 S.E.2d 67, 75 (Ct. App. 1996). Hillerby did not raise this
procedural argument to the trial court. Consequently, it is not preserved for our
review.
To the extent Hillerby argues the trial court erred in admitting Brandon's and
Courtney's testimony despite the State's failure to prove a Rule 404(b) exception,
we affirm. Generally, "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith." Rule 404(b), SCRE. However, it "may . . . be admissible to show
motive, identity, the existence of a common scheme or plan, the absence of
mistake or accident, or intent." Id. Evidence of prior bad acts for which the
accused has not been convicted "must be clear and convincing," and the prior bad
act must logically relate to the offense charged. State v. Martucci, 380 S.C. 232,
252, 669 S.E.2d 598, 608-09 (Ct. App. 2008). The State establishes this logical
relation by demonstrating the accused perpetrated the prior bad act against the
same child as in the present case. State v. Fletcher, 379 S.C. 17, 25, 664 S.E.2d
480, 483-84 (2008). Appellate courts considering whether such evidence is clear
and convincing must affirm the trial court's findings unless those findings are
clearly erroneous. Martucci, 380 S.C. at 252, 669 S.E.2d at 608.

A person commits homicide by child abuse when he "causes the death of a child
under the age of eleven while committing child abuse or neglect, and the death
occurs under circumstances manifesting an extreme indifference to human life."
S.C. Code Ann. § 16-3-85(A)(1) (2003). "[I]n the context of homicide by abuse
statutes, extreme indifference is a mental state akin to intent characterized by a
deliberate act culminating in death." State v. Jarrell, 350 S.C. 90, 98, 564 S.E.2d
362, 367 (Ct. App. 2002). The State may establish the mental state of extreme
indifference using evidence of prior instances in which the accused either abused
or neglected the victim. See, e.g., Martucci, 380 S.C. at 252-53, 669 S.E.2d at 609
(holding evidence of the accused's "hostility, cruelty, and abuse toward Child . . .
during the weeks before he died" constituted "evidence of Martucci's state of mind
to inflict the fatal injuries" and "was necessary to establish a material fact or
element of the crime charged").

In the case at bar, the trial court admitted Brandon's and Courtney's testimony to
show Hillerby's intent toward Victim. Brandon reported overhearing Hillerby
comment that nobody cared about Victim and Mother should have left him in the
swimming pool in water over his head. According to Courtney, Hillerby and
Mother ignored Victim as he repeatedly jumped into the deep end of the swimming
pool without his flotation devices. Courtney also heard Hillerby call Victim a
"pussy" and tell him to "cry because nobody wanted him." We find this testimony
demonstrated Hillerby neglected and verbally abused Victim hours before the child
was left in Hillerby's care and less than a day before Victim was discovered dead.
Moreover, we find the abusive and neglectful acts the witnesses described logically
related to homicide by child abuse. Therefore, the trial court did not err in
admitting Brandon's and Courtney's testimony.

3. Finally, we find the trial court did not err in admitting Georgoulis's
testimony. Generally, evidence must be relevant to be admissible. Rule 402,
SCRE. "'Relevant evidence' means evidence having 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 401,
SCRE. "Bias, prejudice or any motive to misrepresent may be shown to impeach
the witness either by examination of the witness or by evidence otherwise
adduced." Rule 608(c), SCRE. Furthermore:

Proof of bias is almost always relevant because the jury,
as finder of fact and weigher of credibility, has
historically been entitled to assess all evidence which
might bear on the accuracy and truth of a witness'
testimony. Rule 608(c), SCRE, preserves South Carolina
precedent holding that generally, anything having a
legitimate tendency to throw light on the accuracy,
truthfulness, and sincerity of a witness may be shown and
considered in determining the credit to be accorded his
testimony.

State v. McEachern, 399 S.C. 125, 140-41, 731 S.E.2d 604, 612 (Ct. App. 2012)
(internal citations and quotation marks omitted).

Hillerby objected to questions concerning (1) whether Georgoulis saw Hillerby the
night before Victim's death, (2) what Hillerby's mood was when he left her house
the next morning, and (3) who was staying at Georgoulis's home during the trial.
We find the answers to these questions were relevant to Hillerby's credibility and
mental state and to Georgoulis's bias.

In response to the first two questions, Georgoulis testified Hillerby stayed with her
the night before Victim's death, attempted to reunite with her, and left her home
upset the next morning. Her testimony established Hillerby was untruthful when
he told Mother he had stayed the night elsewhere, which diminished his credibility.
Significantly, Georgoulis's testimony demonstrated Hillerby's affections had
already shifted away from Mother and back to Georgoulis, the mother of his child,
before he agreed to babysit Victim and Sister. Thus, they were relevant both to
credibility and to a determination of Hillerby's mental state in the hours preceding
Victim's death.

Hillerby does not claim he suffered prejudice from Georgoulis's admission, in
response to the third question, that his mother was staying with Georgoulis during
the trial. This evidence had no bearing on the events leading up to Victim's death.
However, it revealed the witness's bias in favor of Hillerby and, therefore, her
motive not to truthfully answer the State's questions. Accordingly, Georgoulis's
answer to this question was relevant to her credibility.

For the foregoing reasons, the decision of the trial court is

AFFIRMED.

FEW, C.J., GEATHERS, J., and CURETON, A.J., concur.