State v. Clarke

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.

Brian A.
Clarke, Appellant.

Appeal From Lexington County

R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2012-UP-142

Submitted February 1, 2012 – Filed
February 29, 2012   

AFFIRMED

Appellate Defender Tristan M. Shaffer, 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 David Spencer, all of Columbia; and
Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM: Brian
A. Clarke appeals his conviction for discharging a firearm into a dwelling,
arguing the trial court erred in denying his request for a mere presence jury
charge.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: Rule 20(a),
SCRCrimP ("All requests for legal instructions to the jury shall be
submitted at the close of the evidence . . . ."); Rule 20(b), SCRCrimP
("[T]he parties shall be given the opportunity to object to the giving or
failure to give an instruction before the jury retires, but out of the hearing
of the jury. Any objection shall state distinctly the matter objected to and
the grounds for objection. Failure to object in accordance with this rule shall
constitute a waiver of objection."); Gilchrist v. State, 364 S.C.
173, 178, 612 S.E.2d 702, 705 (2005) ("[T]rial counsel's submission of the
request to charge, without any further explanation of his point, was
insufficient to preserve for review the trial court's failure to charge the
specific language regarding 'a right to act on appearances.'"); State
v. Dennis, 321 S.C. 413, 420, 468 S.E.2d 674, 678 (Ct. App. 1996)
("The law to be charged must be determined from the evidence presented at
trial.  An instruction must not be given unless justified by the evidence.  A
defendant is entitled to a charge on mere presence at the scene only if the
evidence supports it." (citations and quotation marks omitted)); id. (finding the mere presence jury charge is appropriate only when some doubt
exists over whether a person is guilty of a crime by virtue of accomplice
liability or the State attempts to establish the defendant's possession of
contraband because the defendant is present where the contraband is found).

AFFIRMED.

PIEPER,
KONDUROS, and GEATHERS, JJ., concur.

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