State v. Clark

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Keith Allen
Clark, Appellant.

Appeal From Greenville County

 G. Edward Welmaker, Circuit Court Judge

Unpublished Opinion No.  2007-UP-547

Submitted November 1, 2007 – Filed
December 11, 2007 

AFFIRMED

 

Appellate Defender Eleanor Duffy Cleary, South Carolina
Commission, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, 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, of Columbia; and Solicitor Robert M. Ariail,  of Greenville, for
Respondent.

PER CURIAM: Keith
Allen Clark appeals the trial court’s refusal to grant a mistrial due to
evidence of his prior criminal background being introduced during his trial. 
We affirm.[1]

FACTS

On the
morning of May 1, 2004, Jane Doe, while at work, was forced into a vacant office
by a male.  Once inside the office, Doe started screaming.  The male placed his
hand over her mouth and told her he would kill her if she did not stop
screaming.  Doe struggled with the male.  During the struggle, he inserted his
hand down her shirt and started to choke her.  At some point, Doe lost
consciousness.  When she regained consciousness, she noticed that her skirt had
been “moved up” and her underwear was not on “all the way.”  Doe then returned
to her office, and one of her coworkers called the police.  When the police
arrived, Doe gave them a description of her attacker.  Doe later positively
identified Clark in a photo line up.        

Clark was
employed by Mitchell Contract Interiors (Mitchell) and worked as an electrician
in the building where Doe worked.  Doe filed a suit against Mitchell alleging
it had been negligent in hiring Clark.  As a result of the alleged attack, Clark was indicted for kidnapping and assault with intent to commit criminal sexual
conduct.  Clark’s jury trial was held February 14 - 15, 2006. 

During Clark’s trial, Clark’s attorney questioned Doe about the
civil suit she had filed in an attempt to show a possible motive to lie.   During
his cross examination of Doe, Clark’s attorney asked: “Isn’t it true that
approximately November 2004 you sued the company who Mr. Clark worked for?” 
Doe replied: “I am suing because the company hired someone with a criminal
background and that person attacked me.”  Clark’s attorney immediately asked
for a bench conference and moved for a mistrial.  The judge denied the motion
for a mistrial but gave a curative instruction.

The
jury found Clark guilty on both charged crimes.  Clark now appeals the trial
court’s refusal to grant a mistrial due to evidence of his prior criminal
background being introduced during his trial.

LAW/ANALYSIS

Following
the judge’s curative instruction, Clark’s attorney failed to object to the
sufficiency of the curative instruction or move for a mistrial.  Therefore, the
issue is not preserved for appeal.  See State v. George, 323 S.C.
496, 511, 476 S.E.2d 903, 912 (1996) (holding appellant’s failure to object
to the sufficiency of the curative instruction or move for a mistrial following
the curative instruction rendered the issue unpreserved for appeal). 

CONCLUSION

For
the reason stated above, the order of the trial court is

AFFIRMED.

ANDERSON,
SHORT, and WILLIAMS JJ., concur.

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