State v. Hernandez

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.

Jose Luis Gutierrez Hernandez, Appellant.

Appeal From Charleston County

 R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No.  2011-UP-032 

Submitted September 1, 2010 – Filed
January 26, 2011

AFFIRMED

Tricia
A. Blanchette, of Columbia, for Appellant.

Attorney
General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M.
Thames, Office of the Attorney General, all of Columbia; Solicitor Scarlett
Anne Wilson, of Charleston, for Respondent.

PER CURIAM: Jose Luis
Guiterrez Hernandez appeals his conviction for trafficking cocaine.  Hernandez
argues the trial court erred by (1) failing to direct a verdict of not guilty
when the evidence proved that Hernandez was entrapped and (2) improperly
instructing the jury on the defense of entrapment.  We affirm.[1]

FACTS

In
November 2005, Detective Justin Hembree with the Mount Pleasant Police
Department's Narcotics Unit (the Department) arrested Steven Lasaine for
distributing and trafficking cocaine.  After his arrest, Lasaine worked as a
confidential informant with the Department.  Lasaine asked Hernandez to arrange
a cocaine buy in exchange for a $20,000 remodeling job.  Hernandez agreed to
arrange the drug deal. 

On
August 7, 2006, Lasaine and Hembree conducted an undercover drug buy with
Hernandez at a Food Lion parking lot in Mount Pleasant.  Hernandez joined
Hembree and Lasaine in the undercover vehicle that was under video
surveillance.  While in the undercover vehicle, Hernandez made phone calls in
Spanish to the other participants involved in the drug transaction.  Although Hembree
admitted he did not speak Spanish, he testified that he understood "bits
and pieces" of the conversation and that Hernandez relayed the substance
of some of the phone conversations in English.

The
drug transaction commenced when a Ford F-150 truck and a Ford Expedition arrived
in the Food Lion parking lot.  One of the co-defendants got in the undercover
vehicle to confirm the presence of the money.  The co-defendant then exited the
undercover vehicle and approached the passenger side of the Expedition and
retrieved a McDonald's happy meal box from another co-defendant.  The
co-defendant then handed the happy meal box to Hembree, which contained 252.28
grams of cocaine.  Hernandez was subsequently arrested for trafficking cocaine
and possession with intent to distribute cocaine within proximity of a school.[2]

At
trial, Hernandez testified that Lasaine asked him to sell drugs to him on
several occasions.  Hernandez stated he repeatedly refused Lasaine's offers,
but he agreed to arrange a cocaine buy in exchange for a $20,000 remodeling job
because of his limited financial means.  Hernandez moved for a directed verdict
after the conclusion of the State's case and at the close of all the evidence. 
The trial court denied both of these motions.  After closing arguments, the
trial court instructed the jury with the defense of entrapment.  The jury
convicted Hernandez, and the trial court sentenced him to twenty-five years'
imprisonment.  This appeal followed.

STANDARD
OF REVIEW

In criminal cases,
the appellate court sits to review errors of law only. State v. Martucci, 380 S.C. 232, 246, 669
S.E.2d 598, 605-06 (Ct. App. 2008).  This court is bound by the trial
court's factual findings unless they are clearly erroneous. State v. Baccus,
367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  This court does not
reevaluate the facts based on its own view of the preponderance of the evidence
but simply determines whether the trial court's ruling is supported by any
evidence.  State v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct.
App. 2007).

LAW/ANALYSIS

A.  Directed
Verdict Motion

Hernandez argues the trial court erred
in denying his directed verdict motion when the evidence proved he was
entrapped.  We conclude this issue is not preserved for our review.

At
the conclusion of the State's case, Hernandez's counsel moved for a directed
verdict and stated, "At this time Mr. Hernandez would move for [a]
directed verdict of acquittal based upon the [S]tate's failure to prove that he
trafficked in cocaine in the amount of 200 grams and within a half mile of a
school."  The trial court denied this motion and stated, "[A]ll the
state has to prove is that it was - - there were more than 200 grams and less
than 400, they have established 252.28 grams of cocaine." 

Hernandez's
only argument to support his directed verdict motion was the State's failure to
meet its burden of proof regarding the drug trafficking charge.  Because
Hernandez failed to raise the defense of entrapment argument to the trial court
in support of his directed verdict motion, we conclude this issue is not
preserved for our review. SeeState v. Kennerly, 331 S.C.
442, 455, 503 S.E.2d 214, 221 (Ct. App. 1998) (concluding issues not raised to the trial court
in support of a directed verdict
motion are not preserved for appellate review when reviewing a denial of a
directed verdict motion).

B.  Jury Instruction

Hernandez
contends the trial court erred in misstating the State's burden of proof
regarding the predisposition prong of the defense of entrapment during its jury
instruction.  We conclude this issue is not preserved for our review.

During
the jury instruction, the trial court stated,

[A person]
pleading entrapment has the burden of showing that the person was induced,
tricked, or incited to commit a crime which the person would not have
committed.  If such evidence is produced and introduced, then you must then
look to the [S]tate to prove beyond a reasonable doubt that he was not
predisposed.  That he was otherwise not predisposed to commit this crime. 

After
the jury instruction, Hernandez objected and argued the trial court improperly
instructed the jury that Hernandez had the burden to prove inducement.  On
appeal, Hernandez argues the trial court incorrectly stated the law on the
defense of entrapment when it stated the State had the burden to prove that
Hernandez was not predisposed beyond a reasonable doubt to commit the
crime of drug trafficking.  The charge should have read that the State had the
burden to prove that Hernandez was predisposed beyond a reasonable doubt. 

Hernandez's
argument that the trial court erred when it charged the jury that the State had
"to prove beyond a reasonable doubt that he was not predisposed" is a
different argument on appeal and is not preserved for our review.  State v.
Adams, 354 S.C. 361, 380, 580 S.E.2d 785, 795 (Ct. App. 2003) (stating
a defendant may not argue one ground below and another on appeal).

Additionally,
Hernandez asserts the trial court misstated the law on the defense of
entrapment when it failed to instruct the jury that he had the burden to prove
inducement by "more than a scintilla of evidence." We conclude this
issue is not preserved for our review. 

When
Hernandez objected to the trial court's jury instruction on the ground that he
had the burden to prove inducement, the trial court stated,

You can object
to it, state court says that's the law.  Thank you.  At least when you argue a
principle I just ask you, for the court's reviewing purposes, I appreciate your
philosophy, give me something that says it's the burden shift and that
specifically.

Because I will
tell you this, we just recently had a decision that talks about self-defense
dealing with an element that's why the state has to disprove it.  But that's
the only one that it is.  Because entrapment is not an element they have to
disprove.

Defense:  I
believe - - the reason I would argue that, I believe that goes to whether you
are entitled to the instructions.  We have to produced [sic] evidence to show
that we are entitled to it.  And once we are entitled to it then to say, to
tell the jury that we get to prove that I think that's where the burden comes
in and that's my basis, Your Honor.

Court:  Thank
you very much, but I think if you will look at the law on the affirmative
defenses they are just that.  There has to be - - you have to prove it to be
entitled to the jury to consider.  You have to present evidence that you did
which you did. 

The
trial court subsequently revisited Hernandez's objection and likened the
entrapment jury instruction to a duress charge.  The trial court stated,
"The only difference is it says in that case it has to be more than a
scintilla."  The trial court further stated, "I could have said
preponderance of the evidence [in regard to the burden of proving inducement]
but I did not state they had to prove it beyond a reasonable doubt.  So I don't
think the charge as a whole affects that part." 

Hernandez's
argument that the trial court erred in not charging the jury that he had the
burden to prove inducement by "more than a scintilla of evidence" is
a different argument on appeal.  Moreover, Hernandez failed to make a
contemporaneous objection regarding the trial court's failure to instruct the
jury that Hernandez had the burden to prove inducement by "more than a
scintilla of evidence."  Therefore, we conclude Hernandez's argument is
barred from appellate review.  See Adams, 354 S.C. at 380,
580 S.E.2d at 795 (stating arguments raised for the first time on appeal
are not preserved for our review); see also State v. Johnson, 363
S.C. 53, 58, 609 S.E.2d 520, 523 (2005) (stating to preserve an issue for
review there must be a contemporaneous objection that is ruled upon by the
trial court). 

CONCLUSION

Accordingly,
the trial court's decision is

AFFIRMED.

WILLIAMS,
PIEPER, and KONDUROS, JJ., concur.

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

[2] The State nol prossed the charge of possession with
intent to distribute cocaine within proximity of a school.