State v. Osborne

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.

Keith Christopher Osborne, Appellant.

Appellate Case No. 2014-002206

Appeal From Lexington County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2018-UP-079
Submitted December 12, 2017 – Filed February 7, 2018

AFFIRMED

Tommy Arthur Thomas, of Irmo, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Megan Harrigan Jameson, both of
Columbia, for Respondent.

PER CURIAM: Keith Osborne appeals his convictions for strong armed robbery
and first degree assault and battery. Osborne argues the trial court erred in
admitting into evidence (1) the victim's credit card statement, and (2) a photograph
of video surveillance footage. We affirm.
FACTS/PROCEDURAL BACKGROUND

Osborne was indicted in May 2013 for the strong armed robbery and first degree
assault and battery of Helen Lang. A jury trial was held October 8-9, 2014.

Seventy-four-year-old Lang testified at trial. According to Lang, on June 12, 2012,
she was approached by two men in a pick-up truck while walking to her car in the
Food Lion parking lot in South Congaree. Lang testified the passenger in the truck
asked her for directions then leaned out of the truck and grabbed her purse. As the
driver pulled away, Lang held onto her purse and was dragged alongside the truck
for a short distance before she let go. The two men in the truck fled the scene.
Lang was transported to the hospital where she was treated for a fractured pelvis,
broken finger, and scrapes and bruises.

Several days after the robbery, Lang met with Chief Joshua Sheumpert of the
South Congaree Police Department. Lang gave Chief Sheumpert a credit card
statement she had recently received from AT&T Universal to show him several
fraudulent charges that were made on her credit card after it was stolen along with
her purse. According to Lang, she had not used the card in years and the only
purchases listed on the statement were fraudulent purchases made immediately
after the robbery.

Based on the credit card statement, Chief Sheumpert determined Lang's card was
used on June 12, 2012, at a McDonald's on Elmwood Avenue in downtown
Columbia and at an adjacent Marathon gas station. Chief Sheumpert visited both
locations. At McDonald's, Chief Sheumpert spoke with a manager who was able
to determine the exact time Lang's credit card was used at the restaurant. Chief
Sheumpert and the manager then reviewed the surveillance footage of the drive-
thru, and Chief Sheumpert identified a pick-up truck matching Lang's description.
Due to his concern that the video footage would be recorded over along with the
inability of the manager to provide a copy of the recording, Chief Sheumpert used
his cell phone to take photographs of the video.

Next, Chief Sheumpert went to the gas station across the street from the
McDonald's where the other purchases were made with Lang's stolen credit card.
Chief Sheumpert met with the manager of the gas station, viewed the surveillance
footage, and observed the same pick-up truck. The manager gave Chief Sheumpert
a DVD with the surveillance footage, but upon returning to his office, Chief
Sheumpert was unable to view the footage. Chief Sheumpert returned to the gas
station and used his cell phone to take photographs of the video as he previously
had done at McDonald's.

Lang later met with a SLED sketch artist and the resulting sketches of both
suspects were released to the public. In October 2012, Osborne and Joshua Hilton
were identified as suspects and subsequently arrested.

Hilton testified at trial and recounted how Osborne planned the robbery and
selected Lang as the target.1 Hilton detailed the robbery and the immediate
aftermath, including discarding Lang's belongings except her credit cards, several
failed attempts to use Lang's credit card, and the eventual successful use of the
credit card at McDonald's and the gas station. Hilton also described the pair's
attempts to avoid detection, including trading-in Osborne's truck for a different
vehicle approximately one week after the robbery. Hilton testified he thought he
and Osborne would be caught after seeing the suspects' sketches online. Hilton's
wife also testified that Hilton confessed to her that he and Osborne robbed Lang.

The jury found Osborne guilty of armed robbery and first degree assault and
battery. The trial court sentenced Osborne to concurrent sentences of fifteen years
for strong armed robbery and ten years for first degree assault and battery. This
appeal followed.

STANDARD OF REVIEW

"In criminal cases, this [c]ourt sits to review errors of law only and is bound by
factual findings of the trial court unless an abuse of discretion is shown." State v.
Laney, 367 S.C. 639, 643, 627 S.E.2d 726, 729 (2006). An abuse of discretion
occurs when the court's decision is unsupported by the evidence or controlled by an
error of law. State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012).

LAW/ANALYSIS

I. Admission of credit card statement

Osborne argues the trial court erred in admitting Lang's credit card statement into
evidence. We disagree.

1
Hilton was also charged with strong armed robbery and first degree assault and
battery.
Prior to trial, defense counsel stated his objection to the introduction of Lang's
credit card statement based on hearsay, due process, and confrontation grounds.
Specifically, defense counsel stated: "I would object to any testimony as hearsay
from the credit card company that the card was used and without the custodian to
lay the foundation for a business record, I don’t think they can admit that or have
her testimony. That would be hearsay." Defense counsel further stated, "I would
object because it is hearsay and violates due process and cross-examination
confrontation under the Sixth Amendment of the U.S. Constitution . . . ." The trial
court declined to rule on the admissibility of the credit card statement at that time
and instructed defense counsel to pose his objection when the State attempted to
introduce the credit card statement.

In his brief, Osborne states the trial court "ruled that the statement could be
admitted as a business record under Rule 803(6), SCRE, and that Lang was a
'qualified witness' because 'it's within her knowledge of what happened with her
property . . . . It's her statement she can talk about it.'" This is a
mischaracterization of the record. Osborne appears to attribute the State's
argument for admission as a ruling by the court. The trial court did not rule on the
admissibility of the credit card statement, but explicitly stated, "We'll deal with that
at that time and you can pose your objection. I think it's just depending on the
foundation that's laid."

During her testimony, Lang stated she received a statement for the charges on her
stolen credit card after the incident. Defense counsel objected to this testimony,
citing his "prior objection." The trial court overruled the objection and stated it
would "allow [Lang] to testify as to what she received once [the State] la[id] [a]
foundation." Lang then testified the credit card statement was from her AT&T
Universal credit card that was in her name. Lang further testified she had not used
the credit card "in a couple of years" and it was in her purse when it was stolen.
Lang identified the credit card statement, testified she received credit card
statements from AT&T Universal regularly, and confirmed the statements have
been accurate. She further testified she called the credit card company after
receiving the bill to confirm the charges. The State sought to move the statement
into evidence, and, without any statement from defense counsel, the court stated,
"And I note your objection. I'm going to allow it in." Defense counsel did not
place any argument on the record as to why the statement was inadmissible at that
time. Following the admission of the credit card statement, Lang testified the
billing period of the credit card statement was May 19-June 19, 2012, and the only
charges were the purchases at McDonald's and the gas station made on the day of
the robbery and assault.
On appeal, Osborne asserts the credit card statement was hearsay and did not fall
under any of the hearsay exceptions. Specifically, Osborne argues the business
records exception found in Rule 803(6), SCRE, does not apply because there was
no evidence Lang had knowledge of how the statement was created in the normal
course of the credit card company's business nor was there any evidence Lang was
conveying information imparted to her by a person with knowledge of how the
statement was generated.

Hearsay is an out-of-court statement offered in court to prove the truth of the
matter asserted. Rule 801(c), SCRE. Hearsay is inadmissible unless an exception
or an exclusion applies. Rule 802, SCRE. One such exception is the business
records exception, which states:

A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, or diagnoses, made
at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the
regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other
qualified witness. . . .

Rule 803(6), SCRE.

We find the trial court erred in allowing the credit card statement into evidence
under the business records exception. Lang was neither a custodian of the
statement nor a qualified witness familiar with the how the statement was
generated in the regular course of business. However, we affirm the trial court
because we find the admission of the statement was not prejudicial to Osborne.
The statement did not identify Osborne as the individual who used the card at the
McDonald's or the gas station. In addition, we note Hilton testified, without
objection, that he and Osborne used Lang's credit card at the McDonald's and the
gas station.

II. Admission of photograph

Osborne argues the trial court erred in admitting a photograph of video
surveillance footage from the McDonald's. We disagree.
Chief Sheumpert testified he went to the McDonald's location where Lang's credit
card was used and viewed the surveillance footage of the transaction with the store
manager. Chief Sheumpert testified he used his cell phone to take photographs of
the video due to concerns the video footage would be recorded over and an
inability of the manager to provide a copy of the video. Chief Sheumpert
identified State's Exhibit No. 3 as one of the photographs he took of the
surveillance footage and described what was occurring in the picture. Following
this testimony, the State sought to move the photograph into evidence. The trial
court asked defense counsel if he had any objection and counsel responded, "It's
the same as stated on the record." However, defense counsel had not made any
prior argument on the admissibility of the photograph, including during his pre-
trial objection which pertained to the admission of Lang's credit card statement.
Pre-trial, defense counsel informed the trial court he was provided with the
photographs and stated, "I don't think there's anything further regarding those."
The court allowed the photograph from the McDonald's video surveillance into
evidence.

On appeal, Osborne contends the trial court erred in admitting the McDonald's
photograph because the State did not satisfy the requirements for admission
pursuant to Rule 803(6), SCRE. Specifically, Osborne argues Chief Sheumpert
was not a qualified witness with knowledge as to how the underlying surveillance
footage was generated or stored. Additionally, Osborne asserts the State failed to
provide a proper chain of custody for admission.

These arguments are not preserved for our review because Osborne failed to
present them to the trial court. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d
691, 693 (2003) ("In order for an issue to be preserved for appellate review, it must
have been raised to and ruled upon by the trial [court]."); id. at 142, 587 S.E.2d at
694 ("A party need not use the exact name of a legal doctrine in order to preserve
it, but it must be clear that the argument has been presented on that ground.").

CONCLUSION

We affirm Osborne's convictions for strong armed robbery and first degree assault
and battery.

AFFIRMED.2

2
We decide this case without oral argument pursuant to Rule 215, SCACR.
LOCKEMY, C.J., and HUFF and HILL, JJ., concur.