State v. Smith

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.

Kieve Milik
Smith, Appellant.

Appeal From Charleston County

J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2010-UP-542  

Submitted December 1, 2010 – Filed
December 16, 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
Donald J. Zelenka, and Assistant Attorney General J. Anthony Mabry, all of Columbia;
and Solicitor Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Kieve Milik Smith was tried with Leo
Corderrel Gadsden and Anthony Wilder for burglary, kidnapping, murder, and
assault and battery with intent to kill (ABWIK) after the home invasion of
Patricia Green and subsequent shootings of James
Williams and Sterling Spann.  Smith was convicted on
all charges.  Smith appeals his convictions, arguing the trial court erred in:
(1) denying his directed verdict motion and (2) admitting drug evidence when he
was not charged with drug offenses.  We affirm.[1]

1. Smith
contends the trial court erred in denying his directed verdict motion because
the evidence presented at trial was insufficient to convict him.  However, the
State presented sufficient evidence the
three perpetrators of the home invasion and subsequent shootings acted in
concert pursuant to a common design, sufficient evidence Smith was one of the
three perpetrators, and sufficient evidence proving each crime charged.  Under the "hand of one, the hand of all"
theory, "one who joins with another to accomplish an illegal purpose is
liable criminally for everything done by his confederate incidental to the
execution of the common design and purpose."  State v. Langley, 334
S.C. 643, 648, 515 S.E.2d 98, 101 (1999).  When ruling on a motion for a directed verdict, the trial court is concerned
with the existence or nonexistence of evidence, not its weight.  State v.
Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  The State produced sufficient
evidence to show the three perpetrators of the home invasion and subsequent
shootings acted in concert pursuant to a common design and purpose because the
three men communicated and took instructions from each other during the home
invasion and shootings: Gadsden got duct
tape to bind Green at the direction of Wilder; Gadsden acted as lookout informing the others when
people arrived at the house; Smith stopped searching the house when Wilder told
him to help take care of people outside; and Smith chased Williams at the
direction of Gadsden.  The State also
produced sufficient evidence to show Smith was one of the three men involved in
the invasion and shootings because a mask found by an officer had Smith's DNA
on it, and a neighbor identified Williams's red Nike tennis shoes as the shoes
worn by the man who chased and shot at one of the victims.  Lastly, the State
established sufficient evidence proving each crime charged.  For the murder charge, sufficient evidence existed to
establish Spann was killed with malice aforethought because he was dragged out
of his car and fatally shot by one of the defendants.  See S.C.
Code Ann. § 16-3-10 (2003) (defining murder as "the killing of any person
with malice aforethought, either express or implied").  For the
first-degree burglary charge, sufficient evidence exists to establish Smith
entered Green's house with the intent to commit a crime therein and Gadsden
caused physical injury to Green.  See S.C. Code Ann. §
16-11-311(A)(1) (2003) (defining first-degree burglary as the entering of
"a dwelling without consent and with intent to commit a crime in the
dwelling" and either he or another participant in the crime "causes
physical injury to a person who is not a participant in the crime").  For
the kidnapping charge, sufficient evidence exists to establish Green was
unlawfully seized and confined by duct tape.  See S.C. Code Ann. §
16-3-910 (2003) (defining kidnapping as when participants "unlawfully
seize, confine, inveigle, decoy, kidnap, abduct, or carry away any other person
by any means whatsoever without authority of law").  For the ABWIK charge,
sufficient evidence exists to establish Gadsden committed an unlawful act of a
violent nature with malice aforethought against Williams by shooting him four
times in the abdomen and Smith committed an unlawful act of a violent nature
with malice aforethought against Williams by chasing after and shooting at
Williams.  See State v. Coleman, 342 S.C. 172, 176, 536 S.E.2d
387, 389 (Ct. App. 2000) (defining ABWIK as "an unlawful act of a violent
nature to the person of another with malice aforethought, either express or
implied"); id. (holding a conviction for ABWIK does not require
specific intent to kill, but rather it is sufficient if there is shown some
general intent "demonstrated by acts and conduct from which a jury may
naturally and reasonably infer intent").  Thus, viewing the evidence in the
light most favorable to the State, the evidence supported submitting the case
to the jury.

2. Since
Smith did not raise an objection when the drug evidence was admitted, this
issue is not preserved for our review.  See State v. Turner,
373 S.C. 121, 126 n.1, 644 S.E.2d 693, 696 n.1 (2007) (holding an issue not
raised to or ruled upon by the trial court is not preserved on appeal); see Tupper v. Dorchester County, 326 S.C 318, 324, 487 S.E.2d 187, 191
(1997) (holding where appellant's counsel made no objection at trial, an issue
cannot be raised on appeal even though appellant's co-defendant or another
party objected).           

AFFIRMED.

FEW, C.J., and
SHORT and WILLIAMS, JJ., concur.

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