State v. Weatherford

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.

Joshua Shane Weatherford, Appellant.

Appeal From Florence County

Howard P. King, Circuit Court Judge

Unpublished Opinion No. 2011-UP-040

Submitted January 4, 2011 – Filed February
1, 2011   

AFFIRMED

Senior Appellate Defender Joseph L.
Savitz, III, South Carolina Commission, of Columbia, for Appellant

Assistant Deputy Attorney General Salley
W. Elliott, Office of the Attorney General, of Columbia, for Respondent(s).

PER CURIAM: Appellant, Joshua S. Weatherford, was convicted of voluntary manslaughter and sentenced to eight
years imprisonment. Weatherford appeals, asserting the trial judge erred
in denying his motion for directed verdict arguing there was no direct or
substantial circumstantial evidence reasonably tending to prove he killed the
victim, Mallory Jordan.  We affirm.[1]

1. In regard to his argument that the
trial court erred in denying his motion for directed verdict we note, when
ruling on a motion for a directed verdict, the trial court is concerned with
the existence or nonexistence of evidence, not its weight.  State v. Weston,
367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). Further, our standard of review
provides, when reviewing a denial of a directed verdict, this court must view
the evidence and all reasonable inferences in the light most favorable to the State.  Id.  If there is any direct evidence or any substantial circumstantial
evidence reasonably tending to prove the guilt of the accused, we must find the
case was properly submitted to the jury.  Id. at 292-93, 625 S.E.2d at
648.  The State presented the following substantial circumstantial evidence of
guilt:  evidence of the location in which the gun was found and the improbable,
to impossible, explanation of Weatherford's mother that the gun flew from
Jordan's hand; inconsistencies in information from Weatherford's mother
provided to the police regarding Jordan's position when he allegedly shot
himself as well as how the gun could be found so far from the victim; evidence
of the unnatural location of the wound and direction in which the bullet went
through the brain indicating it was most probably a homicide, and the
pathologist's determination all the circumstances pointed to the victim not
having done it to himself and concluding to a reasonable degree of medical
certainty the manner of death was homicide;  evidence that only Weatherford and
his mother were present with Jordan when he suffered the fatal injury; and
evidence from the expert witness testimony of Agent Simmons that her analysis
of the three gunshot residue kits was most consistent with Weatherford having
fired a weapon.  This evidence, when viewed collectively, presented a jury
question as to Weatherford's guilt.  Both the law governing directed verdicts
and our standard of review compel this court to consider only whether the State
presented sufficient evidence from which a jury could fairly and logically
deduce Weatherford's guilt.  Although Weatherford was able to present evidence
in contradiction to, or at least possibly explaining, some of the State's
evidence, the trial court was concerned with the existence or non-existence of
evidence, not its weight, and the question is not whether there was evidence
from which the jury could have concluded Weatherford was not guilty, but
whether there was any substantial circumstantial evidence reasonably tending to
prove Weatherford's guilt.  Because we find that there was, the case was
properly submitted to the jury.

2. As to Weatherford's argument that
there is no evidence of the sudden heat of passion necessary for voluntary
manslaughter, and it was therefore error for the trial judge to instruct the
jury on voluntary manslaughter, we find this argument is not preserved for our
review.  First, appellant's statement of issue on appeal states only that
"[t]he trial judge erred in denying defense counsel's motion for a
directed verdict, as there was no direct evidence or substantial circumstantial
evidence reasonably tending to prove that Weatherford had killed Mallory Jordan." 
It does not mention any error in the submission of a voluntary manslaughter
charge, nor does it propose error based upon lack of evidence of the "heat
of passion" element of voluntary manslaughter.  Rule 208, SCACR, governing
the content of appellate briefs, provides specifically as to the statement of
issues on appeal that the appellant's brief contains "A statement of each
of the issues presented for review" and that "[t]he statement shall
be concise and direct as to each issue," and "[o]rdinarily, no point
will be considered which is not set forth in the statement of the issues on
appeal."  Rule 208(b)(1)(B), SCACR.  See also State v.
Culbreath, 377 S.C. 326, 332, 659 S.E.2d 268, 271 (Ct. App. 2008) (noting,
in order for an issue to be properly presented for appeal, the appellant's
brief must set forth the issue in the statement of issues on appeal).    Further, Weatherford never raised the argument to
the trial court that there was no evidence of heat of passion such that it was
error to charge voluntary manslaughter to the jury.  See Jones v.
Lott, 387 S.C 339, 346, 692 S.E.2d 900, 903 (2010) (holding issues and
arguments are preserved for appellate review only when they are raised to and
ruled on by the lower court).

AFFIRMED.

HUFF and LOCKEMY, JJ., and
GOOLSBY, A.J., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.