State v. Tashonby P. Wilson

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.

Tashonby Pedrick Wilson, Appellant.

Appellate Case No. 2019-000749

Appeal From Lexington County
Thomas W. Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2024-UP-192
Submitted May 1, 2024 – Filed May 29, 2024

AFFIRMED

Appellate Defender Joanna Katherine Delany, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Senior Assistant Attorney General J. Anthony Mabry, all
of Columbia; and Solicitor Samuel R. Hubbard, III, of
Lexington, all for Respondent.
PER CURIAM: Tashonby Pedrick Wilson appeals his convictions for attempted
murder, assault and battery of a high and aggravated nature, and possession of a
weapon during the commission of a violent crime, and his aggregate sentence of
twenty-seven years' imprisonment. On appeal, Wilson argues the trial court erred
in (1) ruling that hearsay statements from a computer-aided dispatch (CAD) report
were admissible, (2) allowing the State to publish an audio recording of a 911 call
that contained a hearsay statement of an eight-year-old boy, and (3) allowing the
State to publish video recordings of three jail phone calls showing Wilson wearing
a Lexington County Detention Center jumpsuit. We affirm pursuant to Rule
220(b), SCACR.

1. We hold the trial court did not abuse its discretion when it allowed a witness to
testify by reading from a CAD report because, prior to the testimony, the State
offered the report into evidence pursuant to the business records exception in Rule
803, SCRE, and the trial court found it complied with the requirements of the rules
of evidence, found the State laid a proper foundation, and allowed it into evidence.
See State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006) ("The
admission of evidence is within the discretion of the trial court and will not be
reversed absent an abuse of discretion."); id. ("An abuse of discretion occurs when
the conclusions of the trial court either lack evidentiary support or are controlled
by an error of law."). Wilson does not contend the CAD report itself did not fall
within the business records exception to hearsay, but argues the report was not
admitted into evidence because the State did not mark the exhibit. However, even
though the State did not mark the exhibit prior to the testimony, it still offered the
report into evidence, the trial court found the State laid a proper foundation and
admitted it, and the witness had the report in hand and testified as to how the
reports were created and maintained in the ordinary course of business. See Rule
802, SCRE ("Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court of this State or by statute."); Rule
803(6), SCRE (stating "a memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity" is not excluded by the hearsay rule); Deep
Keel, LLC v. Atl. Priv. Equity Grp., LLC, 413 S.C. 58, 72, 773 S.E.2d 607, 614 (Ct.
App. 2015) ("Rule 803(6) does not apply to admit live testimony offered to prove
the contents of a record containing hearsay when that record is not offered in
evidence."). Furthermore, even if admission of this testimony was error, it was
harmless because it was cumulative; the victims on the call, officers who spoke
with the victims, and others who witnessed the shooting also testified at trial and
identified Wilson as the shooter. See State v. Vick, 384 S.C. 189, 199, 682 S.E.2d
275, 280 (Ct. App. 2009) ("Appellate courts will not set aside convictions due to
insubstantial errors not affecting the result."); State v. Blackburn, 271 S.C. 324,
329, 247 S.E.2d 334, 337 (1978) ("[T]he admission of improper evidence is
harmless where it is merely cumulative to other evidence.").

2. We hold the issue of the boy's hearsay statement is not preserved for our
review. First, the issue of the 911 call was separate from the issue of the
eight-year-old boy's statement to a police officer. The boy's voice was not heard
on the 911 call, and the pretrial discussions concerning these two issues were
distinct. Neither the State nor Wilson mentioned the boy in the context of the 911
call. Moreover, although Wilson made an objection pretrial, he did not make a
contemporaneous objection when the police officer testified as to the boy's
statement; accordingly, this issue is not preserved. See State v. Dunbar, 356 S.C.
138, 142, 587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for
appellate review, it must have been raised to and ruled upon by the trial [court].");
Webb v. CSX Transp., Inc., 364 S.C. 639, 657, 615 S.E.2d 440, 450 (2005)
(holding contemporaneous objections are required to preserve issues for appellate
review).

3. We hold the trial court did not abuse its discretion when it admitted videos from
three jail phone calls between Wilson and his brother because the probative value
of the videos was not substantially outweighed by unfair prejudice. See Pagan,
369 S.C. at 208, 631 S.E.2d at 265 ("The admission of evidence is within the
discretion of the trial court and will not be reversed absent an abuse of
discretion."); id. ("An abuse of discretion occurs when the conclusions of the trial
court either lack evidentiary support or are controlled by an error of law."); Rule
403, SCRE ("Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . ."). The State
showed short, edited video clips of phone calls between Wilson and his brother at
the detention center; Wilson did not appear at trial wearing jail clothing. While the
videos were prejudicial to Wilson's case, they were not a "constant reminder of the
accused's condition" and, because of their brevity, they could not have been a
"continuing influence throughout the trial" such that they were a violation of
Wilson's right to a fair trial. See Humbert v. State, 345 S.C. 332, 337, 548 S.E.2d
862, 865 (2001) ("[I]t [is] generally improper for a defendant to appear for a jury
trial dressed in readily identifiable prison clothing."), abrogated on other grounds
by Fishburne v. State, 427 S.C. 505, 832 S.E.2d 584 (2019); Estelle v. Williams,
425 U.S. 501, 504-05 (1976) (holding that a defendant's right to a fair trial was
violated when he was compelled to wear identifiable prison clothing during his
trial because it was a "constant reminder of the accused's condition" affecting the
jury's judgment); id. at 505 (stating "[t]he defendant's clothing is so likely to be a
continuing influence throughout the trial that . . . an unacceptable risk is presented
of impermissible factors coming into play").

AFFIRMED. 1

GEATHERS, HEWITT, and VINSON, JJ., concur.

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