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 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Randall Lane
Smith, Sr., Appellant.

Appeal From Greenville County

 D. Garrison Hill, Circuit Court Judge

Unpublished Opinion No. 2008-UP-673

Submitted December 1, 2008 – Filed
December 9, 2008  

AFFIRMED

Chief
Appellate Defender Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Robert M.
Ariail, of Greenville, for Respondent. 

PER CURIAM: Randall Lane Smith, Sr., appeals his
conviction and sentence for criminal sexual conduct with a minor, second
degree, arguing the circuit court erroneously permitted a listed witness the
State did not identify as an expert to testify as to her expert opinions at
trial and erroneously refused to declare a mistrial after one of the State’s
witnesses described Smith as “that pervert.”  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:

1.  As
to the issue of whether the circuit court erred in admitting the testimony of
the State’s expert in child sexual abuse:  Rule 5(a)(1), SCRCrimP (requiring
the State to disclose upon a defendant’s request “books, papers, documents,
photographs, tangible objects, buildings or places, or copies or portions
thereof,” as well as “any results or reports of physical or mental
examinations, and of scientific tests or experiments” possessed by the State
and intended for use as evidence at trial); State v. Landon, 370 S.C.
103, 108, 634 S.E.2d 660, 663 (2006) (“A violation of Rule 5 is not reversible
unless prejudice is shown.”); State v. Douglas, 367 S.C. 498, 507, 508, 626
S.E.2d 59, 63-64 (Ct. App. 2006) cert. granted June 7, 2007
(holding a circuit court’s decision to admit expert testimony will not be
reversed on appeal absent an abuse of discretion and a showing of both error
and prejudice affecting the jury’s decision); State v. Weaverling, 337
S.C. 460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999) (finding expert testimony
and behavioral evidence “concerning common behavioral characteristics of sexual
assault victims and the range of responses to sexual assault encountered by
experts” are “‘admissible as rape trauma evidence to prove a sexual offense
occurred’” as long as their probative value outweighs any prejudicial effect). 

2.  As
to the issue of whether the circuit court erred in refusing to declare a
mistrial:  State v. Price, 368 S.C. 494, 499, 629 S.E.2d 363, 366 (2006)
(holding an appellate court will not set aside a conviction if the circuit
court’s error was harmless); State v. Stanley, 365 S.C. 24, 33, 34, 615
S.E.2d 455, 460 (Ct. App. 2005) (placing the decision to grant or deny a the
extraordinary remedy of a mistrial within the sound discretion of the circuit
court, and requiring a showing of both error and resulting prejudice to support
a mistrial). 

AFFIRMED.

HEARN,
C.J., SHORT and KONDUROS, JJ., concur.

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