Simmons 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

Demetrius Simmons, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2017-000057

Appeal From Greenville County
C. Victor Pyle, Jr., Trial Judge
John C. Hayes, III, PCR Judge

Unpublished Opinion No. 2019-UP-256
Submitted June 1, 2019 – Filed July 17, 2019

AFFIRMED

Deputy Chief Appellate Defender Wanda H. Carter, of
Columbia, for Petitioner.

Attorney General Alan Wilson, Senior Assistant Deputy
Attorney General Megan Harrigan Jameson, and
Assistant Attorney General Taylor Zane Smith, all of
Columbia, for Respondent.

PER CURIAM: Petitioner was tried in absentia and convicted of two counts of
first-degree burglary and one count each of petit larceny, resisting arrest, and
breaking and entering an automobile. Petitioner was later sentenced to an
aggregate term of fifteen years' imprisonment. No direct appeal was taken.
Petitioner subsequently filed an application for post-conviction relief (PCR), which
the PCR court denied. Our supreme court reversed, finding Petitioner was entitled
to a belated review of his direct appeal issue pursuant to White v. State1 because
the record did not support the PCR court's conclusion that Petitioner knowingly
and intelligently waived his right to a direct appeal. See Simmons v. State, Op. No.
2019-MO-012 (S.C. Sup. Ct. filed Feb. 27, 2019). The supreme court transferred
Petitioner's direct appeal issue to this court for review.

Petitioner was convicted of committing two burglaries that took place within hours
of each other at the same residence. During the second burglary, the victim saw
Petitioner enter his garage and gave police a physical description of Petitioner.
Soon after, Petitioner, who matched the description given by the victim, was found
in the area in possession of a bicycle stolen during the first burglary. Petitioner
argues the trial court erred by admitting into evidence a portion of the 911 call
made by the victim during the second burglary in which he stated "the same guy
came back." Petitioner contends the statement should have been excluded as
improper prior bad act evidence. We affirm pursuant to Rule 220(b), SCACR, and
the following authorities: State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693
(2003) ("In order for an issue to be preserved for appellate review, it must have
been raised to and ruled upon by the trial [court]."); id. at 142, 587 S.E.2d at 693-
94 ("Issues not raised and ruled upon in the trial court will not be considered on
appeal."); id. at 142, 587 S.E.2d at 694 ("A party may not argue one ground at trial
and an alternate ground on appeal."); Rule 404(b), SCRE ("Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be admissible to show
motive, identity, the existence of a common scheme or plan, the absence of
mistake or accident, or intent."); State v. King, 424 S.C. 188, 200, 818 S.E.2d 204,
210 (2018) ("If the defendant was not convicted of the prior crime, evidence of the
prior bad act must be clear and convincing." (quoting State v. Fletcher, 379 S.C.
17, 23, 664 S.E.2d 480, 483 (2008))); State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d
107, 117 (Ct. App. 2008) ("A close degree of similarity or connection between the
prior bad act and the crime for which the defendant is on trial is required to support
admissibility under the common scheme or plan exception." (quoting State v.
Cheeseboro, 346 S.C. 526, 546, 552 S.E.2d 300, 311 (2001))); King, 424 S.C. at
200, 818 S.E.2d at 210 ("Nevertheless, this other bad act evidence must be
excluded if its probative value is substantially outweighed by the danger of unfair

1
263 S.C. 110, 208 S.E.2d 35 (1974).
prejudice to the defendant.").

AFFIRMED. 2

HUFF, THOMAS, and KONDUROS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.