State v. Rose

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Samuel A. Rose,       
Appellant.

Appeal From Charleston County

Thomas L. Hughston, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-221

Submitted January 29, 2003 – Filed March
20, 2003   

AFFIRMED

Assistant Appellate Defender Tara S. Taggart, of Columbia;
for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney
General John W. McIntosh; Assistant Deputy Attorney General Charles H. Richardson;
and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
Solicitor Ralph E. Hoisington, of Charleston; for Respondent.

PER CURIAM:  Samuel A. Rose appeals from
his conviction and sentence for indecent exposure.  He contends the police conducted
an unduly suggestive lineup.  We affirm.
[1]

The victim, a dental student at the Medical
University of South Carolina in Charleston, was headed for her car in the parking
lot during daylight hours when she noticed a man standing in the median.  She
crossed the street, and the man began to follow close behind her.  When she
reached her car, she got in and locked the doors.  As she prepared to back out
of her parking space, she looked over her left shoulder and saw the man at her
window, his genitals exposed.  He followed alongside the victim’s car as she
drove away. 

The victim immediately reported the incident
to the police.  She described the person as a slim African-American male who
stood between five feet, five inches and five feet, seven inches tall.  She
said he wore square glasses; had no facial hair; had slightly pointed ears;
and wore blue pants, a white shirt, and a blue jacket.  She estimated seeing
the man for about eight to ten minutes while traveling about two hundred feet
and waiting on traffic. 

The following day, in an attempt to identify
the man, she viewed an array of six color photographs of subjects with the same
physical description: all were African-Americans, all appeared to be about the
same age, and all wore glasses.  She identified Rose as the man who had exposed
himself to her. 

On cross-examination, defense counsel
drew an admission from the victim that the background in Rose’s photograph appeared
darker than the rest. 

The trial court found the identification
procedure was not unduly suggestive and denied Rose’s motion to suppress the
out-of-court and in-court identifications. 

The trial record fully supports the trial court’s
finding. [2]   Rose’s odd behavior alerted the victim; she
had a continuing opportunity to observe his appearance and his attire, including
such details as his lack of facial hair, his distinctive ears, and his eyeglasses. 
All the men pictured in the array were of the same race, about the same in age,
and wore eyeglasses.

As for the background of Rose’s photograph
appearing different from the rest, the victim attached no significance to that
fact.  Moreover, another photograph in the array also had a different background
color.  What she did find distinctive about Rose’s photograph, however, was
his glasses and his ears. 

AFFIRMED.

HEARN, C.J., and GOOLSBY and SHULER,
JJ., concur.

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

[2]   See State v. Moore, 343 S.C. 282,
287, 540 S.E.2d 445, 447 (2000) (holding that the court must determine whether
the identification process was unduly suggestive, and only if it was so does
the court need to determine whether there was a substantial likelihood of
irreparable misidentification).