State v. Kough

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. Richard Kough, Appellant. Appeal From Richland County J. Michelle Childs, Circuit Court Judge Unpublished Opinion No. 2011-UP-501 Heard October 18, 2011 – Filed November 9, 2011 AFFIRMED Appellate Defender Lanelle Cantey Durant and Assistant Appellate Defender Breen Stevens, both of Columbia, for Appellant. Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark Farthing, all of Columbia, for Respondent. PER CURIAM: Richard Kough appeals his conviction of armed robbery, arguing the trial court erred in admitting out-of-court identifications and evidence seized during an allegedly illegal search. We affirm pursuant to Rule 220(b)(1), SCACR, and the following: 1. Regarding the out-of-court identifications: See Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (setting forth a two-prong test to determine whether an identification is reliable, including a review of whether the identification process was unduly suggestive and a determination, if unduly suggestive, of whether the identification was nonetheless so reliable that no substantial likelihood of misidentification existed); id. (listing the factors to consider in determining reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation); State v. Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000) (stating the decision to admit an eyewitness identification is in the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion). 2. Regarding the admission of evidence obtained during the search: See State v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011) ("When reviewing a Fourth Amendment search and seizure case, an appellate court must affirm if there is any evidence to support the ruling."); State v. Laux, 344 S.C. 374, 376, 544 S.E.2d 276, 277 (2001) (stating the test of whether a third party may grant valid consent to search is "whether the third party possesses common authority over or has some other sufficient relationship to the premises or effects searched."); id. at 377, 544 S.E.2d at 277 (finding consent to a search may be valid based on apparent authority and a police officer's reasonable belief that the person authorizing the search has the authority to do so); see also Warden v. Hayden, 387 U.S. 294, 296-99 (1967) (applying the exigent circumstances exception to the warrant requirement in similar circumstances where armed robber was seen by witnesses entering a house, police arrived within minutes, police were admitted into the house by a person with apparent authority over the premises, and incriminating items were found during a search). AFFIRMED. SHORT, WILLIAMS and GEATHERS, JJ., concur.