State v. Hemingway

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.

Xavier Hemingway, Appellant.

Appellate Case No. 2014-002603

Appeal From Horry County
Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2017-UP-242
Heard April 17, 2017 – Filed June 14, 2017

AFFIRMED

Benjamin Rushton Matthews, of Matthews & Megna,
LLC, and Chief Appellate Defender Robert Michael
Dudek, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Assistant
Deputy Attorney General David A. Spencer, Assistant
Attorney General Johnny Ellis James, Jr., all of
Columbia; and Solicitor Jimmy A. Richardson, II, of
Conway, for Respondent.
PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following
authorities: State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248, 256 (2000) ("The
trial [court] is given broad discretion in ruling on questions concerning the
relevancy of evidence, and [its] decision will be reversed only if there is a clear
abuse of discretion."); Rule 401, SCRE ("'Relevant evidence' means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence."); State v. Battle, 408 S.C. 109, 119, 757 S.E.2d 737, 742
(Ct. App. 2014) ("The task of determining the weight of the evidence lies within
the exclusive province of the jury."); People v. Bailey, 191 Colo. 366, 371, 552
P.2d 1014, 1018 (1976) ("It is not essential that the identification of allegedly
stolen property be totally free from doubt in order to be admissible, but rather the
uncertainty of the identification of the alleged stolen property goes to the weight of
the evidence."); State v. Gault, 375 S.C. 570, 574, 654 S.E.2d 98, 100 (Ct. App.
2007) ("[T]o warrant reversal based on admission or exclusion of evidence, the
appellant must prove both the error of the ruling and the resulting
prejudice . . . .").1

AFFIRMED.

GEATHERS, MCDONALD, and HILL, JJ., concur.

1
Although we find Detective Elliot's testimony about finding the Xbox 360s and
laptops in Lisa Livingston's trailer was admissible, we also find Hemingway
waived any objection when he told the trial court he felt the testimony was
beneficial to him. See Ligon v. Norris, 371 S.C. 625, 634, 640 S.E.2d 467, 472
(Ct. App. 2006) ("An objection withdrawn at trial constitutes an express waiver of
the issue and does not preserve the issue for appellate review."). Additionally, on
cross-examination, Hemingway asked Detective Elliot what items were found in
Livingston's trailer. See State v. Von Dohlen, 322 S.C. 234, 247, 471 S.E.2d 689,
697 (1996) (finding one who purposefully elicits testimony on a particular subject
without reserving his objections and receives the relevant response waives any
alleged error). In any event, as this testimony was properly admitted, we find no
error.