Wyatt v. State

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

Bennie Lee
Wyatt, Petitioner,

v.

State of South
Carolina, Respondent.

Appeal From Spartanburg County

Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2011-UP-013.

Submitted January 4, 2011 – Filed January
24, 2011 

AFFIRMED

Appellate Defender M. Celia Robinson, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy
Attorney John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
and Assistant Attorney General Michelle
Parsons Kelley, all of Columbia; and
Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:  Petitioner
seeks a writ of certiorari from the denial of his application for
post-conviction relief (PCR). 

Because there is
sufficient evidence to support the PCR judge's finding that petitioner did not
knowingly and intelligently waive his right to a direct appeal, we grant
certiorari and proceed with a review of the direct appeal issue pursuant to Davis
v. State, 288 S.C. 290, 290, 342 S.E.2d 60, 60 (1986). 

Petitioner appeals his
convictions for second-degree criminal sexual conduct (CSC) and lewd act on a
child, arguing the trial court erred in: (1) precluding the defense from
questioning witnesses about the victim's similar accusations against another
man and (2) denying his directed verdict motion.  We affirm.[1] 

First, Petitioner did not
present any evidence at trial relating to the victim's allegations against another
man, and the trial court never ruled on the issue.   Accordingly, this issue
was not preserved for review by this court.  See State v. Govan,
372 S.C. 552, 557, 643 S.E.2d 92, 94 (Ct. App. 2007) ("[A] motion in
limine to exclude evidence made at the beginning of trial does not preserve
the issue for appellate review because a motion in limine is not a final
determination."); State v. Rice, 375 S.C. 302, 322-23, 652 S.E.2d
409, 419 (Ct. App. 2007) ("Unless an objection is made at the time the
evidence is offered and a final ruling made, the issue is not preserved for
review.") (citation omitted).    

Second, Petitioner contends
the trial court erred in denying his directed verdict motion, arguing the State
relied on the victim's testimony and the victim recanted her allegations
against Petitioner.  Viewing the evidence in the light most favorable to the
State, the evidence supports submitting the case to the jury.  The State relied
on evidence other than the victim's own testimony in meeting the elements of second-degree
CSC.  Specifically, Investigator Diane Lestage testified at trial regarding the
contents of two written statements Petitioner gave to police, stating Petitioner
admitted in the written statements he touched his daughter's breasts and
vaginal area and his daughter "pulled his shorts down and pulled out his
penis."  State v. Weston, 367 S.C. 279, 292-93, 625 S.E.2d 641, 648 (2006)
("If there is any direct evidence or any substantial circumstantial
evidence reasonably tending to prove the guilt of the accused, the [appellate
court] must find the case was properly submitted to the jury."). 
Accordingly, because evidence exists to support the trial court's decision to
submit the case to the jury, the trial court did not err in denying
Petitioner's directed verdict motion.

AFFIRMED.

THOMAS, PIEPER, and
GEATHERS, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.