State v. Bagwell and Spain

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. Steve R. Bagwell and Daryl Lee Spain, Appellants Appeal From Greenville County C. Victor Pyle, Jr., Circuit Court Judge Unpublished Opinion No. 2007-UP-377 Submitted September 14, 2007 – Filed September 18, 2007 AFFIRMED Joseph L. Savitz, III, of Columbia, for Appellants. Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent. PER CURIAM: Steve R. Bagwell (“Bagwell”) and Daryl Lee Spain (“Spain”) were convicted by a jury of first degree burglary. The judge sentenced Bagwell to twenty years of confinement and Spain to fifteen years. Bagwell and Spain appeal their convictions alleging the trial judge erred in ruling inadmissible a defense witness’s testimony. We affirm.[1] Facts In September 2003, Jarrett Armstrong (“Armstrong”) and Chris Snoddy (“Snoddy”) shared an apartment in Greenville County, and both worked at a local Applebee’s restaurant. Bagwell and Spain shared an apartment in the same complex. On September 13, 2003, the day of the burglary, Armstrong worked from 5 p.m. until 10 p.m. Armstrong testified he went home at 10 p.m., showered, and watched television until driving back to Applebee’s at 11:45 p.m. to pick Snoddy up from work. Armstrong waited approximately twenty minutes for Snoddy and left with Snoddy around 12:15 a.m. or 12:20 a.m. While en route back to their apartment, Armstrong stated he received a call from a neighbor that caused them to hurry home. A few neighbors were gathered outside their apartment when Armstrong and Snoddy arrived. Armstrong told Snoddy to go around to the rear of the apartment because it appeared someone was inside. Armstrong said he entered the apartment’s front door and saw Bagwell, whom Armstrong has known since elementary school, leaving through the back glass patio door which had been shattered. As Bagwell was exiting, Armstrong yelled to Snoddy that someone was running out. Armstrong reported finding a sandal on the apartment floor that he had seen worn previously by Spain. After checking the upstairs and finding nothing missing, Armstrong went outside to check on Snoddy. Snoddy testified that when he arrived at the back of the apartment the glass patio door was shattered. Snoddy picked up a metal pole to protect himself. He observed Spain exiting the apartment through the shattered door, and he struck Spain with the pole. The two fought until Spain submitted. Spain was not wearing shoes and had numerous cuts to his feet. Spain passed out when Armstrong reached the back of the apartment. Armstrong and Snoddy then went to Bagwell’s apartment to confront Bagwell. Upon their arrival, Bagwell had blood running down his face. Armstrong hit Bagwell one time before neighbors intervened. Armstrong called the police. At trial, Spain did not take the stand, but Bagwell testified that he had consumed too much alcohol and was home asleep at the time of the incident. Standard of Review In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Wood, 362 S.C. 520, 608 S.E.2d 435 (Ct. App. 2004); State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct. App. 2003). This court is bound by the trial court’s factual findings in determining the admissibility of certain evidence in criminal cases. Wilson, 345 S.C. at 6, 545 S.E.2d at 829; State v. Young, 364 S.C. 476, 613 S.E.2d 386 (Ct. App. 2005). The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Pagan, 369 S.C. 201, 207, 631 S.E.2d 262, 265 (2006); State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law. Pagan, 369 S.C. at 208, 631 S.E.2d at 265; State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. Walker, 366 S.C. 643, 623 S.E.2d 122 (Ct. App. 2005). In order for an error of law to warrant reversal, the error must result in prejudice to the appellant. State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995); State v. Patterson, 367 S.C. 219, 625 S.E.2d 239 (Ct. App. 2006). Discussion Bagwell and Spain argue the trial judge erred in refusing to allow Spain’s brother to testify that Armstrong was angry with Spain because Spain had revealed to a mutual neighbor that Armstrong was selling marijuana from his apartment. Specifically, Bagwell and Spain claim the statement was admissible under Rule 608(c), SCRE, to show Armstrong’s bias and motive to fabricate testimony. Therefore, Bagwell and Spain contend, the trial judge abused his discretion by excluding the evidence under Rule 613, SCRE. Whether the statement was evidence of bias and admissible under Rule 608(c), SCRE, is an issue not raised at trial and is thus not preserved for appeal. Pye v. Estate of Fox, 369 S.C. 555, 633 S.E.2d 505 (2006). See also Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.”); Ellie, Inc. v. Miccichi, 358 S.C. 78, 103, 594 S.E.2d 485, 498 (Ct. App. 2004) (noting it is axiomatic that an issue cannot be raised for the first time on appeal). “Imposing this preservation requirement on the appellant is meant to enable the lower court to rule properly after it has considered all relevant facts, law and arguments.” I’On, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000). The State objected to the testimony based on Rule 613(b), SCRE, arguing the defense counsel failed to lay a proper foundation for the admissibility of a prior inconsistent statement. Under South Carolina law, a proper foundation must be laid before admitting a prior inconsistent statement. State v. McLeod, 362 S.C. 73, 81, 606 S.E.2d 215, 219 (Ct. App. 2004). Rule 613(b), SCRE, provides: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and is given the opportunity to explain or deny the statement. The Solicitor posited, “[T]he appropriate way to [use this statement] would have been to ask my victims during cross-examination whether [sic] not they made a statement to this man.” In response to the State’s challenge to the testimony, the defense counsel opined to the trial judge, “[T]he foundation is laid. He states in court one thing that happens and then he tells my client something different that happens.” The trial judge sustained the State’s objection. At no time during the trial did Bagwell and Spain assert the testimony would show bias, prejudice, or motive for Armstrong and Snoddy to testify falsely. Accordingly, the trial judge was never presented with the opportunity to rule whether the evidence was admissible under Rule 608(c). Though we find no abuse of discretion in the trial judge’s ruling, any error arising from the exclusion of the evidence in the present case would be harmless. Error is harmless where it could not reasonably have affected the result of the trial. In re Harvey, 355 S.C. 53, 584 S.E.2d 893 (2003); State v. Pagan, 357 S.C. 132, 591 S.E.2d 646 (Ct. App. 2004). Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. State v. Sherard, 303 S.C. 172, 399 S.E.2d 595 (1991); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003). Thus, an error is harmless where guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989); Adams, 354 S.C. at 381, 580 S.E.2d at 795. The conviction should not be reversed where a review of the entire record establishes the error is harmless beyond a reasonable doubt. State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v. Fletcher, 363 S.C. 221, 609 S.E.2d 572 (Ct. App. 2005); State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct. App. 2002). In State v. Fossick, 333 S.C. 66, 70, 508 S.E.2d 32, 33-34 (1998), and State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999), the supreme court applied a harmless error analysis to the failure to allow impeaching testimony. In both cases, the court concluded the judge’s error in excluding impeachment evidence was harmless. In Fossick, the court explained: In determining harmless error regarding any issues of witness credibility, we will consider the importance of the witness’s testimony to the prosecution’s case, whether the witness’s testimony was cumulative, whether other evidence corroborates or contradicts the witness’s testimony, the extent of cross-examination otherwise permitted, and the overall strength of the State’s case. State v. Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995) (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed2d 674 (1986)). Id. at 70, 508 S.E.2d at 34. Here, physical evidence corroborated the testimony of Armstrong and Snoddy and provided the State with a strong case. The back glass door of the victims’ apartment had been shattered. Armstrong saw Bagwell, whom he had known for years, leaving the apartment. Snoddy testified he saw Spain exit the apartment through the broken door, and the two had a physical altercation at the scene. Additionally, Armstrong averred the shoe left in his apartment was one he remembered Spain wearing. Importantly, both of these statements indicate the lacerations to Spain’s feet were caused by the door’s broken glass. Finally, counsel for Bagwell and Spain were permitted to cross-examine Armstrong and Snoddy. Accordingly, even if the trial judge had erred in excluding the testimony of Spain’s brother, such error was harmless as it could not reasonably have affected the outcome of the trial. Conclusion The trial judge did not err in ruling inadmissible the defense witness’s testimony. At trial, Bagwell and Spain never argued the evidence was admissible under Rule 608(c), SCRE. Therefore, the issue is not preserved for appellate review. Further, the trial judge properly found no foundation had been laid to admit under Rule 613(b), SCRE. Finally, any possible error in its exclusion was harmless given the physical evidence and the opportunity for cross-examination of Armstrong and Snoddy. Accordingly, Bagwell and Spain’s convictions and sentences are AFFIRMED. ANDERSON and THOMAS, JJ., and CURETON, A.J., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.