State v. Harlin

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.

Edward Harlin, Appellant.

Appeal From Lexington County

Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2011-UP-524

Heard October 31, 2011 –Filed December
1, 2011  

AFFIRMED

Appellate Defender M. Celia Robinson and Appellate Defender Breen
R. Stevens, South Carolina Commission on Indigent Defense, of Columbia, for
Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John
W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General William M. Blitch, of Columbia, for Respondent.

PER
CURIAM: 
Appellant Edward Harlin seeks review of his convictions for committing a lewd
act on a minor and two counts of criminal sexual conduct with a minor in the
first degree.  Harlin asserts that the trial court erred in: (1) declining to
grant a mistrial after the State's expert witness improperly vouched for the
victim's veracity; and (2) refusing to instruct the jury that a party's failure
to call a witness closely connected to the party can be considered as evidence
that the witness's testimony would be unfavorable to the party.  We
affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1.   As
to the issue of whether the trial court erred in
refusing to grant a mistrial:  State v.
Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28
(2000) ("The granting or refusing of a motion
for a mistrial lies within the sound discretion of
the trial court[,] and its ruling will not be disturbed on appeal absent an
abuse of discretion amounting to an error of law."); id. at 63, 530
S.E.2d at 628 ("In order to receive a mistrial, the defendant must show
error and resulting prejudice."); State v. Baker, 390 S.C. 56,
66-68, 700 S.E.2d 440, 445-46 (Ct. App. 2010) (holding that a
police officer's testimony relating her belief, after interviewing two sexual
abuse victims, that the older victim should be referred for a medical
examination was not impermissible bolstering because the officer did not testify
she believed the victims' testimony and she did not vouch for the victims'
veracity); State v. Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 130 (Ct.
App. 2005) ("A curative instruction to disregard incompetent evidence and
not to consider it during deliberation is deemed to have cured any alleged
error in its admission.").

2.  As
to the issue of whether the trial court erred in refusing to instruct the jury
that a party's failure to call a witness closely connected to the party can be
considered as evidence that the witness's testimony would be unfavorable to the
party:  State v. Hammond, 270 S.C. 347, 356-57, 242 S.E.2d 411, 416 (1978) ("While
it is always proper for an attorney in argument to the jury to point out the
failure of a party to call a witness, . . . such a charge has no proper place
in the judge's statement of the law.  We therefore
hold . . . that this Court will not hereafter reverse a case . . . because of
the trial judge's failure to charge the presumption.").

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ.,
concur.