State v. Green

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.

Desmond Green, Appellant.

Appellate Case No. 2015-000726

Appeal From Beaufort County
George C. James, Jr., Circuit Court Judge

Unpublished Opinion No. 2017-UP-341
Heard June 21, 2017 – Filed August 9, 2017

AFFIRMED

Appellate Defender Laura Ruth Baer, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia; and Solicitor Isaac McDuffie Stone, III, of
Bluffton, for Respondent.

PER CURIAM: In this criminal case, Desmond Green appeals his conviction for
criminal domestic violence, third offense, for which he was sentenced to four
years' imprisonment. Green argues the trial court erred in admitting recordings that
violated his rights under the Confrontation Clause. Green also argues the trial
court improperly admitted recordings that were hearsay and irrelevant. Finally,
Green asserts the trial court erred by failing to grant his motion for directed verdict.
We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to the first issue: State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265
(2006) ("The admission of evidence is within the discretion of the trial court and
will not be reversed absent an abuse of discretion."); id. ("An abuse of discretion
occurs when the conclusions of the trial court either lack evidentiary support or are
controlled by an error of law."); U.S. Const. amend. VI. ("In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him."); Crawford v. Washington, 541 U.S. 36, 42 (2004) ("[T]his
bedrock procedural guarantee applies to both federal and state prosecutions.");
Davis v. Washington, 547 U.S. 813, 821 (2006) (holding the Sixth Amendment
bars "admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination" (quoting Crawford, 541 U.S. at 53-54)); id. at 822 (holding
statements made to police "are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency");
id. (holding statements are "testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution") id. at 827 ("A 911 call, on the other hand, and at least the
initial interrogation conducted in connection with a 911 call, is ordinarily not
designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current
circumstances requiring police assistance."); State v. Hendricks, 408 S.C. 525, 533,
759 S.E.2d 434, 438 (Ct. App. 2014) (stating in order to qualify as a present sense
impression, the statement must satisfy a three part test: "(1) the statement must
describe or explain an event or condition; (2) the statement must be
contemporaneous with the event; and (3) the declarant must have personally
perceived the event").

2. As to the second issue: State v. Smith, 337 S.C. 27, 32, 522 S.E.2d 598, 600
(1999) ("Generally, a motion in limine seeks a pretrial evidentiary ruling to prevent
the disclosure of potentially prejudicial matter to the jury. A pretrial ruling on the
admissibility of evidence is preliminary and is subject to change based on
developments at trial. A ruling in limine is not final; unless an objection is made at
the time the evidence is offered and a final ruling procured, the issue is not
preserved for review."); State v. Washington, 379 S.C. 120, 124, 665 S.E.2d 602,
604 (2008) (holding in order for a statement to satisfy the excited utterance
exception to hearsay, "(1) the statement must relate to a startling event or
condition; (2) the statement must have been made while the declarant was under
the stress of excitement; and (3) the stress of excitement must be caused by the
startling event or condition"); id. ("A court must consider the totality of the
circumstances when determining whether a statement is admissible under the
excited utterance exception, and the determination is generally left to the sound
discretion of the trial court.").

3. As to the third issue: State v. Bennett, 415 S.C. 232, 235, 718 S.E.2d 352,
353 (2016) ("On appeal from the denial of a directed verdict, this [c]ourt views the
evidence and all reasonable inferences in the light most favorable to the State."
(quoting State v. Butler, 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014))); id. ("The
[c]ourt's review is limited to considering the existence or nonexistence of evidence,
not its weight."); Butler, 407 S.C. at 381, 755 S.E.2d at 460 ("If there is any direct
evidence or any substantial circumstantial evidence reasonably tending to prove
the guilt of the accused, the [c]ourt must find the case was properly submitted to
the jury." (quoting State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648
(2006))); State v. Osborne, 335 S.C. 172, 175, 516 S.E.2d 201, 202 (1999) ("It is
well-settled law that a conviction cannot be had on the extra-judicial confessions of
a defendant unless they are corroborated by proof aliunde of the corpus delicti.");
id. at 180, 516 S.E.2d at 205 ("[T]he corroboration rule is satisfied if the State
provides sufficient independent evidence which serves to corroborate the
defendant's extra-judicial statements and, together with such statements, permits a
reasonable belief that the crime occurred."); id. ("If there is any evidence tending
to establish the corpus delicti, then it is the trial court's duty to pass that question
on to the jury.").

AFFIRMED.

LOCKEMY, C.J., and HUFF and THOMAS, JJ., concur.