State v. Herndon

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.

Robin Renee Herndon, Appellant.

Appellate Case No. 2016-001109

Appeal From Aiken County
DeAndrea G. Benjamin, Circuit Court Judge

Unpublished Opinion No. 2018-UP-458
Heard October 9, 2018 – Filed December 12, 2018

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia; and Solicitor Samuel R. Hubbard, III,
of Lexington, for Respondent.

PER CURIAM: In this criminal appeal, Robin Renee Herndon appeals her
conviction of voluntary manslaughter. On appeal, Herndon argues the circuit court
erred in (1) denying her immunity under the Protection of Persons and Property
Act1 (the Act), (2) admitting the testimony of forensic pathologist Dr. Janice Ross
because the court abandoned its reliability determination to the jury and her
testimony was outside the scope of her expertise, and (3) refusing Herndon's
request to instruct the jury on the circumstantial evidence charge from State v.
Logan, 405 S.C. 83, 747 S.E.2d 444 (2013). We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to Issue 1: State v. Curry, 406 S.C. 364, 370, 752 S.E.2d 263, 266 (2013) ("A
claim of immunity under the Act requires a pretrial determination using a
preponderance of the evidence standard, which [the appellate] court reviews under
an abuse of discretion standard of review."); Semken v. Semken, 379 S.C. 71, 75,
664 S.E.2d 493, 496 (Ct. App. 2008) ("A preponderance of the evidence stated
simply is that evidence which convinces as to its truth."); State v. Pittman, 373
S.C. 527, 570, 647 S.E.2d 144, 166–67 (2007) ("An abuse of discretion occurs
when the [circuit] court's ruling is based on an error of law or, when grounded in
factual conclusions, is without evidentiary support."); State v. Duncan, 392 S.C.
404, 410, 709 S.E.2d 662, 665 (2011) ("[T]he legislature intended defendants be
shielded from trial if they use deadly force as outlined under the Act. Immunity
under the Act is therefore a bar to prosecution and, upon motion of either party,
must be decided prior to trial."); S.C. Code Ann. § 16-11-440(C) (2015) ("A
person who is not engaged in an unlawful activity and who is attacked in another
place where he has a right to be, including, but not limited to, his place of business,
has no duty to retreat and has the right to stand his ground and meet force with
force, including deadly force, if he reasonably believes it is necessary to prevent
death or great bodily injury to himself or another person or to prevent the
commission of a violent crime as defined in Section 16-1-60."); Curry, 406 S.C. at
372, 752 S.E.2d at 267 (finding immunity under the Act "is predicated on an
accused demonstrating the elements of self-defense to the satisfaction of the
[circuit] court by the preponderance of the evidence"); State v. Davis, 282 S.C. 45,
46, 317 S.E.2d 452, 453 (1984) (outlining the elements of self-defense as the
following: (1) the defendant was without fault in bringing on the difficulty; (2) the
defendant must have actually believed he was in imminent danger of losing his life
or sustaining serious bodily injury, or he actually was in such imminent danger; (3)
if the defense is based on the defendant's actual belief of imminent danger, a
reasonably prudent man of ordinary firmness and courage would have entertained
the same belief. If the defendant actually was in imminent danger, the
circumstances were such as would warrant a man of ordinary prudence, firmness
and courage to strike the fatal blow in order to save himself from serious bodily

1
See S.C. Code Ann. §§ 16-11-410 through -450 (2015).
harm or losing his own life; and (4) the defendant had no other probable means of
avoiding the danger of losing his own life or sustaining serious bodily injury than
to act as he did in this particular instance); Guerin v. Hunt, 118 S.C. 32, 110 S.E.
71, 74 (1921) (finding when there is no conflicting testimony or when there is no
evidence upon a material matter, the question presented is one of law; if the
evidence is contradictory, the question is one of fact); State v. Butler, 407 S.C. 376,
382, 755 S.E.2d 457, 460 (2014) ("When the evidence is susceptible of more than
one reasonable inference, questions of fact must be submitted to the jury." (quoting
State v. Richburg, 250 S.C. 451, 459, 158 S.E.2d 769, 772 (1968))); State v.
Hendrix, 270 S.C. 653, 657, 244 S.E.2d 503, 505 (1978) ("[U]nless it can be said
as a matter of law that self-defense was established, it was not error to submit the
case to the jury.").

2. As to Issue 2: Rule 702, SCRE ("If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.");
State v. Martin, 391 S.C. 508, 513, 706 S.E.2d 40, 42 (Ct. App. 2011) (explaining,
before a witness is qualified as an expert, the circuit court, acting as gatekeeper,
"must find (1) the expert's testimony will assist the trier of fact, (2) the expert
possesses the requisite knowledge, skill, experience, training, or education, and (3)
. . . the expert's testimony is reliable.") (emphasis added); State v. Tapp, 398 S.C.
376, 389, 728 S.E.2d 468, 475 (2012) (finding the court must evaluate the
substance of the expert's testimony to determine if it is reliable); State v. White,
382 S.C. 265, 269–71, 676 S.E.2d 684, 686–87 (2009) (establishing scientific and
non-scientific testimony required a reliability finding before admitting the
testimony, and further finding expert testimony, related to dog tracking evidence,
was reliable due to the evidence concerning the extensive training and experience
of the law enforcement officer and the training and reliability of the canine)
(emphasis added); State v. Harris, 318 S.C. 178, 181, 456 S.E.2d 433, 435 (Ct.
App. 1995) ("The qualification of an expert witness and the admissibility of the
expert's testimony are matters largely within the [circuit] court's discretion.");
Nelson v. Taylor, 347 S.C. 210, 214, 553 S.E.2d 488, 490 (Ct. App. 2001)
("Qualification depends on the particular witness' reference to the subject."); State
v. Lopez, 306 S.C. 362, 364, 412 S.E.2d 390, 391 (1991) (providing a pathologist,
who performed the victim's autopsy, may testify regarding the specific injuries he
observed and the victim's cause of death as a result of those injuries); State v. Gray,
408 S.C. 601, 607, 759 S.E.2d 160, 163 (Ct. App. 2014) (illustrating a forensic
pathologist, who performed the autopsy, may testify regarding the victim's cause of
death based on the forensic pathologist's personal observations of the victim's
wounds while performing the autopsy); White, 382 S.C. at 269, 676 S.E.2d at 686
("A [circuit] court's decision to admit or exclude expert testimony will not be
reversed absent a prejudicial abuse of discretion.").

3. As to Issue 3: State v. Brandt, 393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011)
(holding that in reviewing jury charges, the appellate court considers the jury
charge as a whole, and a jury charge is correct if "it contains the correct definition
and adequately" explains the law) (citation omitted); Logan, 405 S.C. at 91, 747
S.E.2d at 448 (finding a jury charge that "is substantially correct and covers the
law does not require reversal" (quoting id. at 549, 713 S.E.2d at 603)); id. at 100,
747 S.E.2d at 452–53 (clarifying the new jury charge the case provided did not
prevent a circuit court from charging the jury using the State v. Grippon2 or State v.
Cherry3 language but it could not exclusively rely on that charge over an objection
by a defendant); State v. Drayton, 411 S.C. 533, 543–46, 769 S.E.2d 254, 259–61
(Ct. App. 2015) (recognizing Logan and finding no reversible error in the omission
of the reasonable hypothesis charge the defendant requested after the circuit court
gave a jury charge on circumstantial evidence that contained the language from
Grippon), cert. denied on this issue, vacated in part on other grounds, and aff'd in
result, 415 S.C. 43, 780 S.E.2d 902 (2015); State v. Jenkins, 408 S.C. 560, 573,
759 S.E.2d 759, 766 (Ct. App. 2014) (finding "any error in the omission of other
language from the Logan instruction was harmless beyond a reasonable doubt
because the [circuit] court's instruction, as a whole, properly conveyed the
applicable law").

AFFIRMED.

HUFF, SHORT, and WILLIAMS, JJ., concur.

2
327 S.C. 79, 489 S.E.2d 462 (1997).
3
361 S.C. 588, 606 S.E.2d 475 (2004).