State v. Davis

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.

Herbert Wincell
Davis, Jr., Appellant.

Appeal From Richland County

 G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2009-UP-167

Submitted April 23, 2009 – Filed April 27,
2009

AFFIRMED

Appellate Defender M. Celia Robinson, 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 Michelle J. Parsons, and Solicitor Warren B. Giese, all of
Columbia, for Respondent.

PER
CURIAM:  Herbert Wincell Davis, Jr., appeals
his conviction and five-year sentence for criminal domestic violence, third or greater
offense, arguing the trial court erred in admitting prejudicial testimony and
improper rebuttal evidence.  We affirm[1] pursuant to Rule 220(b), SCACR, and the
following authorities:    

1.  As
to whether the trial court erred in admitting prejudicial testimony by the
victim concerning comforting her son after the incident:  Rule 401, SCRE (defining
relevant evidence as evidence that has "any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."); State
v. Gillian, 373 S.C. 601, 613, 646 S.E.2d 872, 878 (2007) (holding admission
or exclusion of evidence is a matter within the trial court's sound discretion,
to be disturbed only upon a showing of a manifest abuse of discretion accompanied
by probable prejudice); State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d
262, 265 (2006) (finding abuse of discretion occurs when conclusions of
the trial court either lack evidentiary support or are controlled by an error
of law); State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248,
256 (2000) (giving the trial court broad discretion in ruling on questions
concerning the relevancy of evidence, and requiring clear abuse of discretion
for reversal); State v. Gault, 375 S.C. 570, 574, 654 S.E.2d 98, 100 (Ct.
App. 2007) (requiring a showing of prejudice to include reasonable probability
that the jury's verdict was influenced by the challenged evidence). 

2.  As
to whether the trial court erred in permitting the State to introduce evidence
in a wholly new area on rebuttal:  State v. Watson, 353 S.C. 620, 624,
579 S.E.2d 148, 150 (Ct. App. 2003) (holding after a trial court admits
evidence of new matter in the State's rebuttal, the accused is entitled to
present additional evidence in surrebuttal but placing the decision whether to
admit such evidence "very much in the discretion of the trial judge."); State v. Farrow, 332 S.C. 190, 194, 504 S.E.2d 131, 133 (Ct. App. 1998)
(recognizing admissibility of reply testimony offered in "rebuttal of
matters raised in defense" and placing admission of reply testimony within
the sound discretion of the trial court). 

AFFIRMED.

PIEPER and LOCKEMY, JJ., and CURETON, A.J., concur.

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