State v. Johnson

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.

Brad R.
Johnson, Appellant.

Appeal From Horry County

 Steven H. John, Circuit Court Judge

Monte L. Harrelson, Magistrate Court Judge

Unpublished Opinion No.  2011-UP-115

Submitted February 1, 2011 – Filed March
22, 2011

AFFIRMED

Brad R. Johnson, of Oak Island, North Carolina, pro se.

John L. Weaver, of Conway, for Respondent.

PER CURIAM: 
A magistrate court jury found Brad R. Johnson violated section 512 of Appendix
B of the Horry County Zoning Ordinance[1] designed to govern accessory buildings, structures, and their uses.  Johnson
appealed the verdict to the circuit court, and the circuit court affirmed.  Johnson now appeals the circuit court's order
affirming the magistrate court, arguing the circuit court erred in affirming
the magistrate court's (1) denial of his motion to dismiss based on a lack of
notice, (2) denial of his directed verdict motion, (3) exclusion of evidence
defining the term "install," and (4) exclusion of a videotape
evidencing the State's disparate treatment of him.  We affirm.[2]

1. With regard to the motion to dismiss, we find any
argument Johnson lacked notice is factually without merit.  Specifically, the
citation issued informed Johnson of the Horry County Zoning Ordinance he
allegedly violated as well as the possibility of being fined or imprisoned for
up to thirty days.  Further, any argument that the ordinance is
unconstitutionally vague is not preserved for review because it was not raised
to or ruled upon by the magistrate court.  See State v. Turner,
373 S.C. 121, 126 n.1, 644 S.E.2d 693, 696 n.1 (2007) (holding in order for an
issue to be preserved for review, it must be raised to and ruled upon by the
trial court).

2. With regard to the directed verdict motion, we find
Johnson's admission in his appellate brief that his storage shed was placed
within six feet of his residence in and of itself supports the magistrate
court's submission of the case to the jury.  Therefore, we find neither the
magistrate nor the circuit court erred.  See State v. Weston, 367
S.C. 279, 292-93, 625 S.E.2d 641, 648 (2006) (stating if any direct evidence
reasonably tends to prove the guilt of the accused, the appellate court must
find the case was properly submitted to the jury).

3. With regard to the exclusion of the definition of
"install," Johnson failed to proffer the excluded evidence during
trial; therefore, this issue is not preserved for appellate review because this
court cannot determine whether he was prejudiced by the magistrate court's
exclusion.  See State v. Roper, 274 S.C. 14, 20, 260 S.E.2d 705,
708 (1979) (stating when no proffer of excluded testimony is made, the
appellate court is unable to determine whether the exclusion was prejudicial).

4. With regard to the exclusion of the videotape, we find
the circuit court properly determined the magistrate court did not abuse its
discretion in excluding the videotape as irrelevant when it depicted Johnson's
neighbors' alleged ordinance violations that have no bearing on whether Johnson
violated the ordinance.  See State v. Aleksey, 343 S.C. 20, 35,
538 S.E.2d 248, 256 (2000) (stating the trial court is given broad discretion
in ruling on questions of relevance and that decision will not be reversed
absent a clear abuse of discretion); State v. Pagan, 369 S.C. 201, 208,
631 S.E.2d 262, 265 (2006) (stating an abuse of discretion arises when the
trial court's conclusions lack evidentiary support or are controlled by an
error of law).

Based on the foregoing, the circuit court's order is

AFFIRMED.

FEW,
C.J., THOMAS and KONDUROS, JJ., concur.

[1] Horry
County, S.C., Code of Ordinances Appendix B Zoning, art. V, § 512 (2008). 

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