State v. Lippard

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 Supreme Court The State, Appellant, v. Rebecca Lippard, Respondent. Appeal From Lexington County R. Knox McMahon, Circuit Court Judge Memorandum Opinion No. 2011-MO-003 Heard November 16, 2010 – Filed January 18, 2011 AFFIRMED General Counsel Robert E. Bogan and Assistant General Counsel Rachel D. Erwin, of S.C. Department of Public Safety, of Blythewood, for Appellant. Heath Preston Taylor, of Taylor Law Firm, of West Columbia, for Respondent. PER CURIAM: A Lexington County magistrate suppressed evidence in a driving under the influence ("DUI") case against Rebecca Lippard ("Lippard") based on alleged Miranda[1] violations. The magistrate thereafter granted a directed verdict of acquittal in favor of Lippard, and the circuit court affirmed. The State appeals, arguing the circuit court erred in ruling the magistrate entered a valid directed verdict in this case because jeopardy had not yet attached. I. The magistrate described in her return what transpired leading up to her decision to grant a directed verdict: That concluded the pretrial motions and at that time, the Court called the case. The Trooper stated in light of suppression of this evidence, he did not have any evidence to move forward and proceed with the trial. The Defense then moved for a dismissal. That motion was denied and the Court then clarified with the Trooper that he did not wish to move forward. The Trooper stated that was correct. The Defense attorney then moved for a directed verdict of not guilty. The Court granted this motion and found the defendant not guilty of Driving Under the Influence. There is no indication in the record that the trooper raised any contemporaneous objections in the proceeding before the magistrate. The magistrate specifically noted that the trooper did not ask for a continuance for any reason. On appeal, the State now contends the magistrate committed legal error in granting the directed verdict because jeopardy had not yet attached and argues the directed verdict should be construed as merely a dismissal, citing State v. Rainwater, 376 S.C. 256, 657 S.E.2d 449 (2008). [2] II. In this case, we are unable to consider the State's arguments. It is axiomatic that issues not involving subject matter jurisdiction may not be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court in order to be considered on appeal. The burden of providing a sufficient record is on the State as the appealing party. Because there is no indication any contemporaneous objections were made to the magistrate's entry of a directed verdict and to the propriety of this ruling, no issue was preserved for appeal in this regard. We hold the issue is not properly before this Court for consideration and, therefore, affirm pursuant to Rule 220(b)(1), SCACR and the following authorities: State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005) ("To preserve an issue for review there must be a contemporaneous objection that is ruled upon by the trial court."); id. at 58-59, 609 S.E.2d at 523 ("If a party fails to properly object, the party is procedurally barred from raising the issue on appeal."); State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) (stating the burden is on the appealing party to provide a sufficient record to enable appellate review); State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) (stating a contemporaneous objection on a specific ground is required to preserve an alleged error for appellate review); State v. Hutto, 279 S.C. 131, 303 S.E.2d 90 (1983) (affirming the State's appeal where it presented an insufficient record to enable review of the issue on appeal); State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct. App. 2001) (observing in criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews the record for preserved errors raised by an appropriate exception; further, an appellate court reviewing the circuit court's appeal may review for errors of law only); State v. Harris, 311 S.C. 162, 167, 427 S.E.2d 909, 912 (Ct. App. 1993) ("An issue not raised at trial is waived on appeal."). AFFIRMED. TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur. [1] Miranda v. Arizona, 384 U.S. 436 (1966). [2] The State acknowledges an appeal from a directed verdict of acquittal is generally not allowed, but argues an appeal is allowed from a dismissal. See, e.g., State v. Holliday, 255 S.C. 142, 144-45, 177 S.E.2d 541, 542 (1970) (observing the State has a limited right of appeal in criminal cases and that it generally has no right of appeal from an acquittal except in circumstances where the acquittal was procured by the accused's fraud or collusion; this principle applies even in cases where there has been legal error); State v. Lynn, 120 S.C. 258, 260, 113 S.E. 74, 75 (1922) ("That the State has no right of appeal from judgment upon verdict of acquittal in a criminal case seems to have been recognized and accepted as the law of this jurisdiction from the beginning of our judicial history.").