State v. Liberto

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.

John Anthony
Liberto, Appellant.

Appeal From Horry County

 Larry B. Hyman, Jr., Circuit Court Judge

Unpublished Opinion No. 2011-UP-589

Submitted November 1, 2011 – Filed
December 21, 2011   

AFFIRMED

Johnny Gardner and Jonathan Hiller, both of Conway, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John
W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General Christina J. Catoe, all of Columbia; and Solicitor J. Gregory
Hembree of Conway, for Respondent.

PER CURIAM:  John Anthony Liberto appeals his simple
assault conviction, arguing the circuit court erred in (1) affirming the
magistrate court's denial of his motion for a directed verdict and (2) considering
the merits of his appeal.  We affirm.[1]

1.  We find the State presented sufficient evidence to deny
Liberto's motion for a directed verdict.  In addition to an unlawful attempt to
commit a violent injury upon another with the present ability to complete the
attempt by a battery, South Carolina recognizes a criminal assault when a
person by words and conduct intentionally creates a reasonable apprehension of
bodily harm in another.  See State v. Sutton, 340 S.C. 393,
397-98, 532 S.E.2d 283, 285 (2000).  Here, the State presented evidence Liberto
threatened and charged towards the victim causing him to retrieve a weapon in
self-defense; therefore, the circuit court did not err in denying Liberto's
directed verdict motion.  Additionally, despite Liberto's inability to carry
out one of the threats against the victim because of the absence of the
victim's family, the State presented evidence that Liberto assaulted the victim
prior to ever making a threat concerning the victim's family.  Thus, the State
presented sufficient evidence to support affirming the magistrate court's
denial of Liberto's directed verdict. 

2.  As to Liberto's issue concerning the circuit court improperly
considering the jury's finding of guilt, Liberto failed to raise this issue to
the circuit court; therefore, it is not preserved for our review.  See City
of Columbia v. Ervin, 330 S.C. 516, 519-20, 500 S.E.2d 483, 485 (1998)
(noting an issue is not preserved for review where the defendant fails to raise
the issue to the circuit court as an intermediate appellate court).

AFFIRMED.

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

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