State v. Lower, Susan

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.

Susan Lower, Appellant.

Appeal From Aiken County

Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2010-UP-455

Submitted October 1, 2010 – Filed October
20, 2010  

AFFIRMED

Appellate Defender Elizabeth A.
Franklin-Best, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General
Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all
of Columbia; and Solicitor J. Strom Thurmond, Jr., of Aiken, for Respondent.

PER CURIAM: Susan Lower appeals her convictions for criminal
sexual conduct (CSC) with a minor in the first degree, CSC with a minor in the
second degree, disseminating obscene material to a minor twelve years or
younger, two counts of unlawful conduct towards a child, and four counts of lewd
act upon a child.  Lower argues the trial court erred in (1) refusing to grant
her request for a mistrial when the State declined to proceed on seven of the
seventeen charges against her and when the trial court made allegedly improper
comments to the jury regarding the seven withdrawn indictments, and (2)
allowing the State to amend two lewd act indictments such that the amendment
changed the nature of the alleged offense.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and based on the reasoning of the following
authorities:    

1. As to whether the trial court
erred in denying Lower's mistrial motion when the State declined to proceed on
seven of the seventeen charges against her, and when the trial court made
allegedly improper comments to the jury regarding the seven withdrawn
indictments: 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 judge.  Issues not
raised and ruled upon in the trial court will not be considered on
appeal."); State v. George, 323 S.C. 496, 510, 476 S.E.2d 903,
912 (1996) ("No issue is preserved for appellate review if the
objecting party accepts the judge's ruling and does not contemporaneously make
an additional objection to the sufficiency of the curative charge or move for a
mistrial."). 

2.  As to whether the trial court
erred in allowing the State to amend the dates on two lewd act indictments
against Lower such that the amendment changed the nature of the alleged offense: State v. Myers, 313 S.C. 391, 393, 438 S.E.2d 236, 237 (1993)
("Amendments to an indictment are permissible if they do not change the
nature of the offense; the charge is a lesser included offense of the crime
charged on the indictment; or the defendant waives presentment to the grand
jury and pleads guilty."); State v. Quarles, 261 S.C. 413, 417, 200
S.E.2d 384, 386 (1973) ("A motion to amend the date alleged in an
indictment is addressed to the sound discretion of the trial judge, and the
burden of showing an abuse of discretion and resulting prejudice is upon the
party adversely affected by his ruling thereon.").

AFFIRMED.

FEW, C.J., HUFF and
GEATHERS, JJ., concur.

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