State v. Kenneth E. McGill

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.

Kenneth Earle McGill, Appellant.

Appellate Case No. 2019-001902

Appeal From Abbeville County
Donald B. Hocker, Circuit Court Judge

Unpublished Opinion No. 2023-UP-109
Submitted March 1, 2023 – Filed March 22, 2023
Withdrawn, Substituted and Refiled May 24, 2023

AFFIRMED

William Norman Epps, III, of Epps & Epps, LLC, of
Anderson, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia; and Solicitor David Matthew
Stumbo, of Greenwood, all for Respondent.
PER CURIAM: Kenneth Earle McGill appeals his conviction for trafficking
methamphetamine, more than 100 grams but less than 200 grams, and his sentence
of twenty-five years' imprisonment. On appeal, McGill argues the trial court erred
when it (1) denied McGill's motion to quash the indictment as duplicitous and did
not give the jury a special verdict form; (2) refused to instruct the jury on
entrapment; and (3) denied McGill's request for a continuance to review newly
provided information. We affirm pursuant to Rule 220(b), SCACR.

1. The trial court did not abuse its discretion in refusing to quash the indictment as
duplicitous and failing to give the jury a special verdict form. We find the
indictment was not duplicitous because it related only to one crime which
constituted a continuous course of conduct. See State v. Tumbleston, 376 S.C. 90,
94, 654 S.E.2d 849, 851 (Ct. App. 2007) ("The trial court's factual conclusions as
to the sufficiency of an indictment will not be disturbed on appeal unless so
manifestly erroneous as to show an abuse of discretion."); id. ("An abuse of
discretion occurs when the trial court's ruling is based on an error of law or a
factual conclusion without evidentiary support."); State v. Shoemaker, 276 S.C. 86,
88, 275 S.E.2d 878, 879 (1981) ("An indictment phrased substantially in the
language of the statute which creates and defines the offense is ordinarily
sufficient."); State v. Pee Dee News Co., 286 S.C. 562, 565, 336 S.E.2d 8, 9 (1985)
(holding "indictments relate to one crime only, and the description of more than
one method of violation does not create a new crime" and will not be found to be
duplicitous).

2. The trial court did not err in refusing to instruct the jury on entrapment because
McGill did not meet his burden of showing he was induced to commit the crime, as
he was predisposed to trafficking methamphetamine. See State v. Mattison, 388
S.C. 469, 479, 697 S.E.2d 578, 583 (2010) ("To warrant reversal, a trial judge's
refusal to give a requested jury charge must be both erroneous and prejudicial to
the defendant."); id. at 479, 697 S.E.2d at 584 ("An appellate court will not reverse
the trial judge's decision regarding a jury charge absent an abuse of discretion.");
State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App. 2004) ("[T]he
entrapment defense consists of two elements: (1) government inducement, and (2)
lack of predisposition."); id. ("One pleading entrapment has the burden of showing
that he was induced, tricked or incited to commit a crime, which he would not
otherwise have committed." (quoting State v. Johnson, 295 S.C. 215, 217, 367
S.E.2d 700, 701 (1988))); Johnson, 295 S.C. at 217, 367 S.E.2d at 701 ("It is a well
settled principle of law that the defense of entrapment is not available to a
defendant exhibiting a predisposition to commit a crime independent of
governmental inducement and influence.").
3. The trial court did not abuse its discretion in refusing to grant McGill a
continuance to review the contents of a potential witness's phone because he had
the opportunity to review the phone data during the trial and he was able to
impeach the witness—his stated purpose for reviewing the data—by other means.
See State v. Ravenell, 387 S.C. 449, 454, 692 S.E.2d 554, 557 (Ct. App. 2010) ("In
criminal cases, the appellate court sits to review errors of law only."); id. ("An
appellate court is bound by the trial court's factual findings unless they are clearly
erroneous."); id. at 455, 692 S.E.2d at 557 ("The trial court's denial of a motion for
a continuance will not be disturbed on appeal absent a clear abuse of discretion.");
State v. Lytchfield, 230 S.C. 405, 409, 95 S.E.2d 857, 859 (1957) ("[R]eversals of
refusal of continuance are about as rare as the proverbial hens' teeth.").

AFFIRMED. 1

WILLIAMS, C.J., and GEATHERS and VERDIN, JJ., concur.

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