George Moses v. State

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

George N. Moses, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2020-000093

ON WRIT OF CERTIORARI

Appeal from Orangeburg County
Edgar W. Dickson, Circuit Court Judge

Opinion No. 6041
Heard November 16, 2023 – Filed January 3, 2024

AFFIRMED

Appellate Defender Jessica M. Saxon, of Columbia, for
Petitioner.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General Mark Reynolds Farthing,
both of Columbia, and Solicitor David Michael Pascoe,
Jr., of Orangeburg, all for Respondent.

GEATHERS, J.: Petitioner George N. Moses appeals the December 16, 2019
denial of his application under the Access to Justice Post-Conviction DNA Testing
Act (the DNA Testing Act), 1 in which he sought post-conviction DNA testing of
evidence used to convict him of voluntary manslaughter and armed robbery in
February 2009. Moses argues the circuit court erred by relying on the incorrect part
of the statute and misapplying the statutory factors used to review his application.
We affirm.

FACTS

George Moses was convicted of voluntary manslaughter and armed robbery
and sentenced to life without parole on February 12, 2009, for the killing of Harry
Livingston (the victim). On September 29, 2006, Moses visited the victim to
purchase drugs. A fight broke out between the two surrounding the terms of the
exchange and resulted in Moses stabbing and hitting the victim with a stick until the
victim passed out. The victim was subsequently found dead, and an autopsy
attributed his death to a closed-head injury and subarachnoid hemorrhaging. After
the altercation, Moses went to a friend's house and hid a pair of bloody shorts, which
police later found. A grand jury indicted Moses for armed robbery and murder. At
trial, Moses admitted to the altercation with the victim and argued that he acted in
self-defense. DNA testing of several pieces of evidence, including strips cut from
the bloody shorts Moses stashed after his fight with the victim, did not reveal Moses'
DNA.

Moses filed an application under the DNA Testing Act on January 3, 2017,
requesting that the State perform a DNA test on two other items: swabs taken from
the pockets of the pair of shorts he admitted to hiding and fingernail clippings taken
from the victim. Moses alleged that testing these items would reveal the true identity
of the person wearing the shorts and the identity of the person who actually killed
the victim. 2

1
S.C. Code Ann. §§ 17-28-10 to -120 (2014 & Supp. 2023).
2
At oral argument, Moses' counsel explained that Moses was likely confused by the
fact that multiple DNA swabs were taken from the bloody shorts and that Moses
thought that there were two pairs of shorts somehow involved in the State's case.
Because Moses admitted at trial that he was wearing the bloody shorts of which he
now seeks DNA testing, counsel explained that the focal point of Moses' case was
testing the victim's fingernail clippings, which he asserts could potentially show that
an interceding actor caused the victim's death.
Moses' application sat pending for over two years, apparently owing to
confusion over how the application was to be handled. On August 28, 2019, the
circuit court held an evidentiary hearing in which Moses' counsel began by advising
the court he had been unable to verify that the items for which testing was sought
still existed. 3 The parties then spent most of the hearing arguing whether identity
was a critical factor at Moses' trial. On this point, Moses argued that DNA evidence
from the shorts and the victim's fingernails would reveal that the victim had been in
another altercation after his fight with Moses. The State argued Moses' testimony at
trial that he engaged in an altercation with the victim before his death and that he
stashed the bloody shorts at a friend's house precluded a finding that identity was an
issue during the trial.

After taking the parties' arguments under advisement, the circuit court issued
an order on December 16, 2019, denying Moses' application. Moses concedes on
appeal that no objections were raised at the hearing nor was the circuit court asked
to reconsider its order. Indeed, Moses reads the record as making clear "that
everyone involved, from [Moses'] DNA counsel to the [s]olicitor to the circuit
court[,] did not properly address [Moses'] DNA application." Moses sought
certiorari from this court pursuant to Rule 247(a), SCACR,4 and this court granted
the petition on June 16, 2021.

ISSUE ON APPEAL

Did the circuit court err in finding Petitioner failed to meet the requirements
of section 17-28-40(C) of the South Carolina Code, which enumerates the required
contents of the DNA testing application, rather than the requirements of section
17-28-90(B), which specifies the factors to be proved at the hearing on the DNA
testing application?

3
Under the DNA Testing Act, applicants have the burden of showing the items for
which testing is sought still exist. § 17-28-90(B) ("The court shall order DNA testing
of the applicant's DNA and the [evidence] . . . upon a finding that the applicant has
established each of the . . . factors by a preponderance of the evidence[.]").
4
Rule 247(a), SCACR, provides: "A final order of the circuit or family court denying
or granting DNA testing under the . . . DNA Testing Act . . . shall be reviewed upon
petition of either party for a writ of certiorari according to the procedure set forth in
this rule."
STANDARD OF REVIEW

Section 17-28-90(G) of the South Carolina Code provides that both the State
and the applicant have a right to appeal a final order granting or denying an
application under the DNA Testing Act. Our research has revealed no published
appellate court decision defining the standard of review for such appeals.
Applications under this statute are in some ways similar to applications seeking
post-conviction relief (PCR) under the Uniform Post-Conviction Procedure Act (the
PCR Act).5

However, whereas the PCR Act provides that "[a]ll rules and statutes
applicable in civil proceedings are available to the parties," the DNA Testing Act
provides that "[a]ll rules and statutes applicable in criminal proceedings are available
to [the parties]." Compare § 17-27-80 (emphasis added), with § 17-28-90(A)
(emphasis added). This key difference between the two acts justifies applying the
standard of review for criminal proceedings to the present case. "In criminal cases,
the appellate court sits to review errors of law only." State v. Elwell, 403 S.C. 606,
609, 743 S.E.2d 802, 804 (2013). "Therefore, this [c]ourt is bound by the trial court's
factual findings unless the appellant can demonstrate that the trial court's conclusions
either lack evidentiary support or are controlled by an error of law." Id.

LAW AND ANALYSIS

The State contends that Moses' arguments are unpreserved while Moses asks
this court to relax preservation rules to reach the merits of his claims. We agree with
the State and hold Moses' arguments on appeal are not preserved for appellate
review.

South Carolina appellate courts do not follow the "plain error" standard when
sitting in review of a trial court's decision. State v. Sheppard, 391 S.C. 415, 421,
706 S.E.2d 16, 19 (2011) ("[T]he plain error rule does not apply in South Carolina
state courts."). "Instead, a party must have a contemporaneous and specific objection
to preserve an issue for appellate review." Id. "[I]t is a litigant's duty to bring to the
court's attention any perceived error, and the failure to do so amounts to a waiver of
the alleged error." State v. Geer, 391 S.C. 179, 193, 705 S.E.2d 441, 448 (Ct. App.
2010) (quoting S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295,
301, 641 S.E.2d 903, 907 (2007)). However, appellate courts are to be "'mindful of

5
S.C. Code Ann. §§ 17-27-10 to -160.
the need to approach issue preservation rules with a practical eye and not in a rigid,
hyper-technical manner'" and thus should not apply preservation rules in a manner
that "elevat[es] form over substance to trap trial lawyers so as to prevent the appeal
of a legitimate issue." State v. Morales, 439 S.C. 600, 609, 889 S.E.2d 551, 556
(2023) (quoting Herron v. Century BMW, 395 S.C. 461, 470, 719 S.E.2d 640, 644
(2011).

"One primary purpose of our issue preservation rules is to 'give the trial court
a fair opportunity to rule.'" Id. (quoting Atl. Coast Builders & Contractors, LLC v.
Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012)). Second, preservation rules
work to ensure that "both parties are aware of the nature of the objection such that
they may present their best arguments addressing that objection." Id. Our supreme
court has assessed requests to set aside preservation in the interest of justice against
both of these high-level goals. See id. (noting that the court's refusal to ignore issue
preservation rules "serves each [of the two aforementioned] purposes").

Moses asks this court to analyze the merits of his appeal, regardless of whether
the issues are preserved, in the interest of justice. To support this, Moses cites state
and federal case law supporting the proposition that at times, "the interests of justice
require . . . courts to be flexible with procedural requirements before . . . applicants
suffer procedural default on substantial claims." Mangal v. State, 421 S.C. 85, 99,
805 S.E.2d 568, 575 (2017).

In Simmons v. State, our supreme court took the "extraordinary action" of
remanding a PCR case to the lower court even though it found "the State [was]
technically correct" that the applicant's issue on appeal was not preserved. 416 S.C.
584, 592–93, 788 S.E.2d 220, 225 (2016). It noted that "[a] remand under these
circumstances must . . . be granted sparingly and be reserved for the rarest of cases."
Id. at 593, 788 S.E.2d at 225 (emphasis added). The applicant in Simmons had been
sentenced to death for murder and filed a PCR application, asserting ineffective
assistance of counsel, newly discovered evidence, and a claim that he was deprived
of due process by the State's presentation of false DNA evidence to the jury and its
failure to disclose exculpatory evidence. Id. at 589, 788 S.E.2d at 223. The PCR
court vacated the applicant's death sentence and denied the remaining claims,
including the challenge to the DNA evidence. Id. at 591, 788 S.E.2d at 224. On
appeal, the State did not deny that "the strength of the State's DNA evidence against
[the applicant] was misrepresented to the jury," but our supreme court noted that it
found "no evidence of conscious wrongdoing in the prosecution of [the] case." Id.
Instead, it attributed the misrepresentation to faulty evidence the State had received
"concerning a complex matter." Id. Finding that the PCR court did not make
specific findings of fact, our supreme court vacated the PCR court's order in part and
remanded it for further factual findings. Id. at 592–93, 788 S.E.2d at 225. 6

Simmons and similar cases cited by Moses are distinguishable from the instant
case. Whereas in Simmons, the PCR court failed to make sufficient factual findings
required of it by the law, Moses makes no allegation here that the circuit court did
not make the factual findings required of it under the DNA Testing Act. Rather,
Moses essentially argues the circuit court erred by deriving the factors it applied
from the wrong part of the DNA Testing Act. 7 Only under extraordinary
circumstances—such as when a PCR court fails to make sufficiently specific
findings of fact—do the interests of justice permit a court to reach unpreserved
issues. See Fishburne v. State, 427 S.C. 505, 517, 832 S.E.2d 584, 590 (2019)
(Hearn, J., concurring) ("Although we have overlooked the lack of a [posttrial]
motion in the past, . . . those decisions clearly represent extraordinary
circumstances. Our issue preservation rules are well-settled. [We depart] from
[these rules] only in exceptional circumstances.").

Softening preservation rules for Moses' claim would be tantamount to
employing the plain error rule. Although—as discussed—our jurisprudence
sometimes permits reaching unpreserved issues to avoid hyper-technical
applications of preservation rules, the case at hand is not one in which preservation

6
Simmons is in the same vein as a line of cases stemming from McCray v. State, 305
S.C. 329, 408 S.E.2d 241 (1991). In McCray, our supreme court took the
opportunity to remind PCR courts of their obligation to "make specific findings of
fact, and state expressly [their] conclusions of law, relating to each issue presented."
305 S.C. at 330, 408 S.E.2d at 241 (quoting S.C. Code Ann. § 17-28-80). Finding
that "[t]he PCR court's conclusions regarding ineffective assistance are insufficient
for appellate review and fail to meet the standard set forth in the statute," our
supreme court remanded the case. Id. A year later, in Pruitt v. State, our supreme
court expressed "concern with the increasing number of orders in PCR proceedings
that fail to address the merits of the issues raised by the applicant" and vacated and
remanded the case to the PCR court for additional findings. 310 S.C. 254, 255–56,
423 S.E.2d 127, 128 (1992) (per curiam).
7
Specifically, Moses argues the circuit court relied on section 17-28-40(C), which
sets out factors for evaluating an application under the DNA Testing Act, instead of
section 17-28-90(B), which specifies the factors to be applied to a hearing held under
the DNA Testing Act.
rules must be tortured or even construed strictly in order to function as a bar to
Moses' claim. Rather, Moses did not object during the DNA testing hearing. In
short, the issues Moses brings on appeal were neither raised to nor ruled on by the
circuit court. Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998)
("It is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial judge to be preserved for appellate
review."). The State had no opportunity to address any of the arguments about the
circuit court's order that Moses makes on appeal because this appeal is the first time
he has raised them. The same can be said about the circuit court. See Queen's Grant
II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d
902, 919 (Ct. App. 2006) ("Issue preservation rules are designed to give the trial
court a fair opportunity to rule on the issues, and thus provide us with a platform for
meaningful appellate review."). Thus, Moses failed to preserve the errors he assigns
for appellate review and no extraordinary circumstances warrant this court to set
aside preservation rules and reach the issues.

CONCLUSION

For the foregoing reasons, the circuit court's order is

AFFIRMED.

THOMAS and KONDUROS, JJ., concur.