State v. Tucker

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.

James Anthony Tucker, Appellant.

Appeal From Anderson County

J. Cordell Maddox, Jr., Circuit Court
Judge

Unpublished Opinion No.  2011-UP-537

Submitted November 1, 2011 – Filed
December 5, 2011

AFFIRMED

Appellate Defender Elizabeth Franklin-Best,
of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia;
and Solicitor Christina T. Adams, of Anderson, for Respondent.

PER CURIAM:  James Anthony Tucker appeals his
convictions for assault and battery with intent to kill (ABWIK) and armed
robbery.  Tucker argues the trial court erred in admitting irrelevant testimony
and improperly instructing the jury during trial.  We affirm.[1]

1. We find the
trial court did not abuse its discretion in admitting the victim's testimony
regarding the changes in his lifestyle after the defendant attacked him.  Generally,
"[a]ll relevant evidence is admissible," and "[e]vidence which
is not relevant is not admissible."  Rule 402, SCRE.  Evidence is relevant
if it has "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."  Rule 401, SCRE.  Additionally,
among the essential elements of ABWIK, the State must prove intent.  State
v. Foust, 325 S.C. 12, 15, 479 S.E.2d 50, 51 (1996).  "Such intent may
be shown by acts and conduct from which a jury may naturally and reasonably
infer intent."  Id. at 16
n.4, 479 S.E.2d at 52 n.4.  Here, in presenting the victim's testimony
regarding new precautions he had taken since he was attacked, the State introduced
evidence tending to show the victim's impression that Tucker intended to kill
the victim.  The victim's testimony suggests he took these precautions to
protect his own life in the future because he believed Tucker intended to kill
him during the initial attack.  Accordingly, the trial court did not err in
admitting the victim's testimony. 

2.  As to
Tucker's issue concerning the jury instruction, this issue is not preserved for
review.  See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691,
693-94 (2003) ("Issues not raised and ruled upon in the trial court will
not be considered on appeal.").  Accordingly, we find the trial court did
not err in instructing the jury.

AFFIRMED.

HUFF, PIEPER,
and LOCKEMY, JJ., concur.

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