State v. Thomas

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.

Eugene Thomas, Appellant.

Appellate Case No. 2012-212968

Appeal From Greenville County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-360
Heard September 9, 2014 – Filed October 15, 2014

AFFIRMED

Timothy Lee Gehret, of Timothy Gehret Attorney at
Law, LLC, of Charleston, and Chief Appellate Defender
Robert Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General Norman Mark Rapoport, both
of Columbia; and Solicitor William Walter Wilkins, III,
of Greenville, for Respondent.
PER CURIAM: Eugene Thomas appeals his convictions of third-degree burglary,
possession of a firearm during the commission of a violent crime, and attempted
armed robbery. He contends the trial court erred in (1) denying his motion for a
directed verdict because the State's evidence did not amount to substantial
circumstantial evidence; (2) allowing an unduly suggestive out-of-court
identification to be admitted into evidence; and (3) not charging the jury with
strong arm robbery. We affirm.

1. As to whether the trial court erred in denying Thomas's motion for a directed
verdict: State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) ("When
ruling on a motion for a directed verdict, the trial court is concerned with the
existence or nonexistence of evidence, not its weight."); State v. Venters, 300 S.C.
260, 264, 387 S.E.2d 270, 272 (1990) (noting that when reviewing a trial court's
denial of a defendant's motion for a directed verdict, an appellate court must view
the evidence in a light most favorable to the State); Weston, 367 S.C. at 292-93,
625 S.E.2d at 648 (holding an appellate court must find a case is properly
submitted to the jury if any direct evidence or any substantial circumstantial
evidence reasonably tends to prove the guilt of the accused); State v. Rogers, 405
S.C. 554, 563, 748 S.E.2d 265, 270 (Ct. App. 2013) ("Direct evidence is based on
personal knowledge or observation and . . ., if true, proves a fact without inference
or presumption." (alteration by court) (emphasis added by court) (internal
quotation marks omitted)).

2. As to whether the trial court erred in allowing an unduly suggestive out-of-court
identification to be admitted into evidence: State v. Pagan, 369 S.C. 201, 208, 631
S.E.2d 262, 265 (2006) ("The admission of evidence is within the discretion of the
trial court and will not be reversed absent an abuse of discretion."); id. ("An abuse
of discretion occurs when the conclusions of the trial court either lack evidentiary
support or are controlled by an error of law."); State v. Liverman, 398 S.C. 130,
138, 727 S.E.2d 422, 426 (2012) ("Due process requires courts to assess, on a case-
by-case basis, whether the identification resulted from unnecessary and unduly
suggestive police procedures . . . ."); State v. Turner, 373 S.C. 121, 127, 644
S.E.2d 693, 697 (2007) (finding "[d]espite the variation in the background colors,
appellant does not stand out in comparison with the other individuals in the line-
up. All six men have facial hair and all appear to be 'built,' as described by the
victim."); State v. Brown, 333 S.C. 185, 190, 508 S.E.2d 38, 41 (Ct. App. 1998)
("[A] witness identification need not be one hundred percent certain in order to
meet due process requirements.").
3. As to whether the trial court erred in not charging the jury with strong arm
robbery: State v. Gibson, 390 S.C. 347, 355-56, 701 S.E.2d 766, 770 (Ct. App.
2010) (finding a trial court commits reversible error if it fails to give a requested
charge on an issue raised by the evidence); State v. Tyndall, 336 S.C. 8, 21, 518
S.E.2d 278, 285 (Ct. App. 1999) ("A lesser included offense instruction is required
only when the evidence warrants such an instruction, and it is not error to refuse to
charge the lesser included offense unless there is evidence tending to show the
defendant was guilty only of the lesser offense."); S.C. Code Ann. § 16-11-330(A)
(2003) (providing a person is guilty of armed robbery if he or she "commits
robbery while armed with a pistol . . . or other deadly weapon, or while alleging,
either by action or words, he was armed while using a representation of a deadly
weapon or any object which a person present during the commission of the robbery
reasonably believed to be a deadly weapon"); State v. Tasco, 292 S.C. 270, 272,
356 S.E.2d 117, 118 (1987) ("[W]hen a person perpetrates a robbery by
brandishing an instrument which appears to be a firearm . . . in the absence of any
evidence to the contrary, the law will presume the instrument to be what his
conduct represented it to be, a firearm. . . ." (ellipses added by court) (emphasis
added) (internal quotation marks omitted)).

AFFIRMED.

HUFF, SHORT, and KONDUROS, JJ., concur.