State v. Ivery

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.

Gregory Allan Ivery, Appellant.

Appellate Case No. 2012-213216

Appeal From Greenville County
William H. Seals, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-265
Heard June 5, 2014 – Filed June 30, 2014

AFFIRMED

Appellate Defender Carmen V. Ganjehsani, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, for Respondent.

PER CURIAM: Gregory Allan Ivery appeals his convictions on charges of
distribution of crack cocaine and distribution of crack cocaine within one-half mile
of a school or park, arguing (1) the trial court erred in admitting a video recording
of the alleged drug transaction and (2) the trial court gave an unconstitutionally
coercive Allen charge.1 We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:

1. As to the admission of the video recording: Rule 901(a), SCRE ("The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims."); Rule 901(b), SCRE (including
"[t]estimony that a matter is what it is claimed to be" and "[i]dentification of a
voice, whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker" as acceptable methods of
authentication); Wright v. Pub. Sav. Life Ins. Co., 262 S.C. 285, 290-91, 204
S.E.2d 57, 60 (1974) (applying the rule that the admission or exclusion of evidence
is in the trial court's discretion to a finding by the trial court that certain evidence
was sufficiently authenticated); Winburn v. Minnesota Mut. Life Ins. Co., 261 S.C.
568, 576-77, 201 S.E.2d 372, 376 (1973) ("Authenticity of documentary evidence
may be shown, so as to render it admissible in evidence, by indirect or
circumstantial evidence.").

2. As to Ivery's argument that the Allen charge was unconstitutionally coercive:
Green v. State, 351 S.C. 184, 195, 569 S.E.2d 318, 323-24 (2002) (holding an
Allen charge similar to the charge at issue here was not directed to minority voters
or otherwise coercive); State v. King, 334 S.C. 504, 509-10, 514 S.E.2d 578, 581
(1999) (holding the appellant waived review of his complaint about certain activity
that occurred during his trial because he failed to make an appropriate objection
when the allegedly offensive activity occurred, instead waiting until after the jury
delivered its verdict to object); State v. Hicks, 330 S.C. 207, 217, 499 S.E.2d 209,
214 (1998) ("A contemporaneous objection is necessary to preserve errors for
direct appellate review. . . ."); State v. Pauling, 322 S.C. 95, 99, 470 S.E.2d 106,
109 (1996) ("It is not coercion to charge that the failure to reach a verdict will
require a new trial at additional expense.").

AFFIRMED.

HUFF, THOMAS, and PIEPER, JJ., concur.

1
See Allen v. United States, 164 U.S. 492 (1896).