State v. Barnette

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.

John W. Barnette, Appellant.

Appellate Case No. 2012-212712

Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2014-UP-146
Submitted February 1, 2014 – Filed April 2, 2014

AFFIRMED

Bobby G. Frederick and Matthew Sherrod Swilley, both
of Frederick Law Office, of Myrtle Beach, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General John Benjamin Aplin, both of
Columbia, for Respondent.

PER CURIAM: John W. Barnette appeals the decision of the circuit court
affirming his conviction in absentia in magistrates court for criminal domestic
violence (CDV), arguing (1) the circuit court erred in allowing the State to
introduce new evidence during the appeal hearing and (2) the circuit court erred in
affirming the magistrates court's denial of Barnette's motion for a new trial because
the State offered no evidence that Barnette had notice of the trial date. Initially, we
find the circuit court erred in admitting evidence not contained in the record and
basing its decision on that evidence;1 however, we affirm2 because Barnette has not
shown the magistrates court's finding that Barnette received notice is without
evidentiary support and therefore clearly erroneous.

The magistrates court made statements prior to trial that Barnette had notice
and was aware the trial could proceed without him and later made written findings
of fact in its return stating specifically that Barnette was notified of the date, time,
and place of his trial and that the trial would proceed in his absence. See City of
Aiken v. Koontz, 368 S.C. 542, 547, 629 S.E.2d 686, 689 (Ct. App. 2006) ("[T]he
trial [court] must make findings of fact on the record that the defendant (1)
received notice of his right to be present; and (2) was warned that the trial would
proceed in his absence should he fail to attend."). Additionally, as in Koontz,
Barnette initialed an order specifying the methods and conditions of his release,
which informed him of his obligation to appear "at such other times and places
ordered by the court"; the magistrates court adjudicating Barnette's bail signed a
"Checklist for Magistrate and Municipal Judges" stating that it informed Barnette
of his right and obligation to appear for trial and that a waiver of his right to be
present would result if he failed to attend; the State informed the magistrates court
on the record that it sent notices to Barnette at two addresses but the mailings were
returned with no forwarding address; and Barnette failed to alert the magistrates

1
See State v. Hoyle, 397 S.C. 622, 625, 725 S.E.2d 720, 721-22 (Ct. App. 2012)
("In a criminal appeal from the magistrate[s] court, the circuit court does not
review the matter de novo; rather, the court reviews the case for preserved errors
raised by appropriate exception."); Rogers v. State, 358 S.C. 266, 270, 594 S.E.2d
278, 280 (Ct. App. 2004) ("[T]he circuit court, sitting in its appellate capacity, may
not engage in fact finding."); State v. Brown, 358 S.C. 382, 387-88, 596 S.E.2d 39,
41 (2004) (finding error when an appellate court considered facts not included in
the magistrate's return); id. at 388, 596 S.E.2d at 41 (stating the "magistrate's
return is the official record of trial proceedings" (citing State v. Barbee, 280 S.C.
328, 313 S.E.2d 297 (1984))).
2
See Rule 220, SCACR ("The appellate court may affirm any ruling, order,
decision or judgment upon any ground(s) appearing in the Record on Appeal.").
court or the State to his change of address. See id. at 547-49, 629 S.E.2d at 689-90
(considering similar factors in upholding a conviction in absentia). Finally,
Barnette signed a bond form that warned his trial would proceed despite his
absence if he failed to appear. See State v. Ravenell, 387 S.C. 449, 456, 692 S.E.2d
554, 558 (Ct. App. 2010) ("[A] bond form that provides notice that a defendant can
be tried in absentia may serve as the requisite warning that he may be tried in his
absence should he fail to appear."). Thus, there is evidence to support the
magistrates court's finding that Barnette received proper notice of his trial. See
State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 505 (Ct. App. 2004) ("In
criminal cases, [this court] sits to review errors of law only and is bound by the
factual findings of the trial court unless clearly erroneous."). Accordingly, the
decision of the circuit court is affirmed.

AFFIRMED.3

FEW, C.J., and SHORT and GEATHERS, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.