State v. Sidney Moorer (2) ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Sidney Stclair Moorer, Appellant.
Appellate Case No. 2019-001636
Appeal From Horry County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 5988
Heard April 13, 2022 – Filed June 7, 2023
AFFIRMED
Appellate Defender Taylor Davis Gilliam, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia; and Solicitor Jimmy A. Richardson, II, of
Conway, all for Respondent.
HILL, A.J.: Sidney S. Moorer (Sidney) appeals his convictions for kidnapping and
conspiracy to kidnap. Sidney argues the trial court erred in (1) transferring venue of
his case back to Horry County; (2) denying his motion for directed verdict on both
the kidnapping and conspiracy to kidnap charges; and (3) qualifying Grant
Fredericks as an expert in forensic video analysis and allowing him to testify the
Moorers' truck was the vehicle videotaped going toward and away from the place
from which the victim disappeared. We affirm.
I. BACKGROUND FACTS
From July 2013 until late October or early November 2013, Sidney, a thirty-eight-
year-old man, had an affair with Heather Elvis (Victim), a nineteen-year-old woman.
Sidney and Victim met at the Tilted Kilt, a restaurant at Broadway at the Beach in
Myrtle Beach, where Victim worked as a hostess and Sidney did maintenance work.
Victim and Sidney communicated with each other on their cell phones around 400
to 500 times a month until their relationship ended when Tammy Moorer (Tammy),
Sidney's wife, found out about the affair. During the affair, Tammy's and Sidney's
cell phone records showed they also regularly communicated, but from November
2, 2013, to December 18, 2013, communication between Tammy's and Sidney's cell
phones stopped.
On the evening of December 17, 2013, Victim went on a first date with a man her
age. During the date, Victim acted happy, and her date dropped Victim off at her
apartment after 1:00 a.m. on December 18, 2013. Meanwhile, Sidney and Tammy
were, by their own admission, together. Location data from their cell phones
indicated they were in the area of Victim's apartment and the area of Longbeard's
Bar, from 11:00 p.m. until 1:30 a.m. At 1:19 a.m., Sidney purchased a pregnancy
test kit from Walmart. From Walmart, Sidney and Tammy traveled to a Kangaroo
Express gas station and parked across the street. At 1:33 a.m., Sidney exited his
truck and walked across the street to the gas station. At 1:35 a.m., he called Victim—
for the first time since their affair ended six weeks before—from a payphone located
outside the gas station. The call lasted four minutes and fifty seconds. Location data
from Victim's phone showed she was in the area of her apartment when she received
this call.
After receiving the payphone call, Victim called her roommate Brianna Warrelmann,
who was out of town. Victim was upset and crying. Warrelmann calmed Victim
down, told Victim not to meet with Sidney, and told Victim to go to sleep and they
would talk in the morning. However, it appears Victim called the pay phone number
two times from the area of her apartment, changed into her favorite outfit, and—
according to the location data from her cell phone—left her apartment at 2:32 a.m.
Victim called the payphone a third time while driving, and at 2:43 a.m., when she
arrived in the same area that Sidney and Tammy had been just four hours earlier, she
called the payphone another six times. None of the calls were answered.
Victim returned home, where, at 3:16 and 3:17 a.m., she called Sidney's cell phone
twice. The first call to Sidney's cell phone went to voicemail, but the second call
lasted a little over four minutes. Location data from Sidney's phone shows he was
at or near his home when he spoke to Victim. Location data from Victim's phone
showed after this call, Victim left her apartment and went to Peachtree Landing (the
Landing), which is located about a five-minute drive from the Moorers' home. While
at the Landing, Victim called Sidney's cell phone four more times—at 3:38 a.m.,
3:39 a.m., 3:40 a.m., and 3:41 a.m. All four calls went to voicemail. The 3:41 a.m.
phone call was the last one made from Victim's phone, and to this date, there has
been no further activity on Victim's phone. At 4:37 a.m., Tammy texted Sidney for
the first time since November 2, 2013.
Victim's car was discovered at the Landing at 4:00 a.m. on December 18, 2013, by
an officer on routine patrol, who noted no signs of a struggle at the Landing and
nothing appeared to be wrong with the car. On the evening of December 19, 2013,
when her car was still abandoned at the Landing, the police contacted Victim's
father, and a search for Victim began. Victim has never been found.
Based on Victim's phone records, a search of her apartment, and discussion with her
coworkers and roommate, it became apparent Victim may have been pregnant with
Sidney's child, 1 and Sidney became the prime suspect in Victim's disappearance. On
December 20, 2013, the police visited the Moorers' home. Tammy gave the police
consent to enter the home and property, where they discovered the Moorers had a
home surveillance system; a black 2013 Ford F-150 Ford Platinum truck that Tammy
told them could not be unlocked at the time; and a bag of cement, a spent shotgun
shell, and a bottle of cleaning fluid piled by the Moorers' parked camper. The day
after this police visit, Sidney purchased a new home surveillance system. Video
from this new surveillance system showed Sidney, Tammy, Tammy's sister, and
Tammy's sister's boyfriend cleaning, pressure washing, and vacuuming the Moorers'
Ford F-150 on December 22, 2013, and then burning the rags used to clean the car.
Later in February 2014, officers searched the Moorers' home and their Ford F-150,
finding no evidence of Victim's disappearance.
Investigators began looking into Sidney's life more closely and discovered Tammy
may have also been involved in Victim's disappearance. Phone records and location
data from the Moorers' two cell phones 2 and their computer revealed a grim picture
1
Several of Victim's coworkers and Victim's roommate reported that after Victim
and Sidney's relationship ended, Victim started to gain weight; believed she was
pregnant; took a pregnancy test at work, receiving an error result; and discarded
another pregnancy test box in the bathroom of her apartment that was found after
her disappearance. The pregnancy test from this box was never found.
2
The State's cell phone location data expert testified he tried to retrieve GPS data
from Victim's and Sidney's Google history report. Victim's records supported the
of a wife who was irate with her husband for having an affair with a younger woman;
who threatened Victim upon discovery of the affair 3; who desired to punish Sidney
by handcuffing him to the bed at night and having him get a tattoo of her name on
his waistline; who took control of Sidney's cell phone on November 2, 2013, when
she discovered the affair; who sexted other men from Sidney's cell phone; who drank
excessively and smoked pot, even when she was allegedly pregnant or trying to
become pregnant; and who went with her husband to work since discovering the
affair.
In the course of their investigation, officers discovered two surveillance systems had
captured an image of a pickup truck driving between the Moorers' home and the
Landing in the early morning hours of December 18, 2013. One was a home
surveillance system located five minutes from the Landing, which showed a dark
color pickup truck heading towards the Landing at approximately 3:45 a.m. and then
passing back about ten minutes later. The second was a business' surveillance
system located two or three minutes from the Landing, which showed a dark pickup
truck going towards the Landing at 3:39 a.m. and returning from the Landing at 3:46
a.m. The police asked a forensic video analysist, Grant Fredericks, to assist them in
identifying the truck from these videos. After conducting many tests, including a
"headlight spread pattern analysis," Fredericks formed the opinion the truck in the
video footage was the Moorers' Ford F-150.
A Horry County Grand Jury indicted Sidney and Tammy for kidnapping and
conspiracy to kidnap Victim. Sidney and Tammy were tried separately. Sidney's
first trial, held in 2016, ended in a mistrial. This appeal is from his 2019 retrial.
At Sidney's retrial, the State presented evidence from police investigators; a
phone location data, but Sidney's data had been deleted and his account had been
closed on December 25, 2013. Notably, Sidney's data and account was deleted after
he spoke to a police officer on December 20, 2013, who asked Sidney if the police
would discover he went to the Landing the night Victim disappeared by looking at
his GPS records.
3
On November 2, 2013, after Tammy discovered the affair, she called Victim's
phone multiple times from her cell phone. Tammy also sent Victim several text
messages from Sidney's cell phone, including "Who the f*** is this?" and "You want
to call me right now and explain yourself? It would be wise thing to do. . . . Save
yourself. I'm giving you one last chance to answer before we meet in person, only
one. Hey, Sweetie, you ready to meet the Mrs., the kids want to meet you?" Victim's
coworkers reported Victim was scared of Tammy.
cellphone location data analyst; Victim's coworkers, who testified Victim was a
dependable worker; Victim's roommate; the man with whom Victim went on her
December 17, 2013 date; witness testimony indicating the Moorers' personal
surveillance system was likely functional on the night of December 18, 2013; and
expert testimony that the SD card in the Moorers' Ford F-150's GPS and navigational
system was removed at 12:07 a.m. on December 18, 2013, and a warning about the
SD card's removal would have played on the truck's GPS monitor. The trial court
also qualified Fredericks as an expert witness in forensic video analysis. Fredericks
testified the truck seen in the surveillance videos driving to and from Peachtree
Landing close to the time Victim disappeared was the Moorers' Ford F-150.
The State sought to paint the picture that in the weeks before Victim's disappearance,
Tammy was infuriated with Sidney for having an affair with Victim; Sidney's phone
was under Tammy's control; Tammy sought revenge on Sidney for the affair by
sending sexual messages to other men on Sidney's phone; and upon hearing rumors
that Victim was pregnant with Sidney's child, Sidney and Tammy sought to dispose
of Victim and her unborn child to prevent Victim from forever having a hold on
Sidney and ruining their family. The State's theory was that, on the night of Victim's
disappearance, Tammy had control over Sidney's cell phone and actions, and
together they sought to lure Victim to an unsafe and remote location by asking
Victim to take the pregnancy test they had purchased at Walmart. The State
contended the Moorers tried to destroy incriminating evidence by purchasing a new
surveillance system and removing the one they had the night of the disappearance,
deleting Sidney's Google GPS data and account, and removing the SD card from
their Ford F-150's navigational system. The State also claimed the Moorers tried to
avoid detection by using a payphone to call Victim and tried to avoid video evidence
by not parking in the gas station parking lot by the payphone. The State noted
Tammy returned Sidney's cell phone to his control for the first time in six weeks
shortly after Victim disappeared.
As a final piece of incriminating evidence, the State offered testimony from
Tammy's cousin Donald Demarino, who stated that after Victim's disappearance,
Sidney showed him a picture of Victim on a mobile phone. Demarino explained the
picture showed Victim was not "under her own free will," and based on the picture,
he did not expect anyone to hear from Victim ever again. Demarino stated he did
not tell anyone about the picture until he was imprisoned for an unrelated offense,
but he stated he did not receive anything in exchange for telling the State about the
picture. Demarino admitted, however, he told his mother that this story was not true.
He explained he did this to stop his mother from worrying.
After the State rested, Sidney moved for a directed verdict, arguing the State had not
presented substantial circumstantial evidence to support the charges of kidnapping
or conspiracy to kidnap. The trial court denied the motion.
During the defense's case, Sidney called Bruce Koenig as an expert witness in
forensic analysis. Koenig testified there was no way to scientifically prove the
vehicle in the surveillance videos was the Moorers' truck because the picture
contained "nothing unique" and he saw more "differences than similarities" between
the vehicle in the video and the Moorers' truck. However, Koenig agreed, based on
Fredericks' work, the vehicle in the surveillance videos was likely a Ford F-150.
Tammy's sister, who lived next door to the Moorers, also testified for the defense,
stating Tammy texted her when Tammy and Sidney came home at 3:10 a.m. on
December 18, 2013; she then sent the Moorers' children home; and she saw the
Moorers outside their door waiting for their children. Tammy's sister also testified
she and her boyfriend gave Sidney his Christmas present, a car washing kit, on
December 22, 2013, because the weather was nice and they wanted to wash their
own car. She testified Sidney and Tammy also washed their car that day, and she
noted the Moorers always burned trash. After the defense rested, Sidney renewed
his motion for a directed verdict, which the trial court denied.
The jury found Sidney guilty of both kidnapping and conspiracy to kidnap. The trial
court imposed concurrent sentences of thirty years' imprisonment for each charge.
This appeal followed.
II. STANDARD OF REVIEW
"In criminal cases, the appellate court sits to review errors of law only. This Court
is bound by the trial court's factual findings unless they are clearly erroneous." State
v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) (internal citations omitted).
III. DISCUSSION
1. Venue
After the 2016 mistrial, Sidney moved to change venue in his case from Horry
County. The trial court granted this motion, changing the venue to Georgetown
County because Sidney could not receive a fair and impartial trial in Horry County
due to the massive pre-trial publicity and social media exposure. In particular, the
trial court noted a number of possible jurors had posted on their social media that
they "knew how to get around the Judge by just saying that [they] can be unbiased."
Three years later, in May 2019, the State requested the venue be returned to Horry
County, noting since the 2016 order changing venue, two juries had been empaneled
for this case in Horry County (one in August 2017 for Sidney's charge of obstruction
of justice related to the facts of this case and one in October 2018 for Tammy's trial
on these charges); social media saturation had died down; and a fair and impartial
jury could be empaneled in Horry County. The trial court granted the State's venue
motion and transferred venue back to Horry County.
Sidney argues the trial court erred in transferring venue back to Horry County
because "social media saturation" regarding Victim's disappearance "pervaded"
Horry County and jurors had shown "their ability and willingness to bypass
impartiality determinations at trial." Sidney also asserts the venue should have been
changed because Victim's aunt was the Horry County Clerk of Court, and "her last
name and familial status created the appearance of a conflict." We disagree.
Sidney moved to transfer venue on the first day of his retrial. The trial court noted
that out of the 300 hundred members of the jury venire, 173 indicated they had no
knowledge of the case on their juror questionnaires. The trial court said these
statistics confirmed its decision to change venue back to Horry County but ruled
Sidney's motion would continue until a jury was empaneled.
During the ensuing voir dire process, several venire members noted they had heard
about the case. Almost all of these potential jurors were excused because they said
they believed Sidney was guilty or they could not be impartial based on what they
knew. However, three that said they could be impartial despite what they had heard
about the case were allowed to remain. Two members of the venire who knew
Victim's sister were allowed to remain because they stated they would be impartial.
One other member who knew Victim's sister was excused because of her relationship
with Victim's sister. One venire member who knew Sidney was excused; one who
was close friends with a police officer who was a witness in the case was excused;
one who had mutual friends with Victim was excused; one who knew Victim was
excused; and one whose husband was friends with Victim was excused. After voir
dire was completed, the petit jury was selected, including three alternates. None of
the seated jurors or alternate jurors had stated they knew about the case or knew a
witness in the case. No motions were made by either party regarding the selection
process.
After jury selection, Sidney brought up the motion he had filed to excuse the jury
and continue trial based on the inherent conflict of interest in holding the case in
Horry County where Victim's aunt was the clerk of court. Sidney noted the clerk
was Victim's aunt and the clerk acted as an "extension of the court." The trial court
denied this motion, noting while the clerk was "very much involved with this
proceeding, as she should be, she's in charge of the courthouse," it had asked the
clerk to let her assistants be the ones in the courtroom handling the case. The trial
court did note, however, that the clerk's name, Renee Elvis, was on the juror
summons.
We find the trial court did not abuse its discretion in denying Sidney's motions to
change venue back to Horry County. See State v. Evins, 373 S.C. 404, 412, 645
S.E.2d 904, 908 (2007) ("A motion to change venue is addressed to the sound
discretion of the trial judge and will not be disturbed on appeal absent an abuse of
discretion."). First, as to Sidney's argument regarding the pre-trial publicity and
social media saturation of this case, the trial court carefully examined the jury pool
as to their knowledge of the case and their ability to be impartial, excusing every
juror who stated they could not be impartial based on their knowledge of the case or
knowing a witness in the case. Id. ("When a trial judge bases the denial of a motion
for a change of venue because of pretrial publicity upon an adequate voir dire
examination of the jurors, his decision will not be disturbed absent extraordinary
circumstances."); id. ("When jurors have been exposed to pretrial publicity, a denial
of a change of venue is not error where the jurors are found to have the ability to set
aside any impressions or opinions and render a verdict based on the evidence
presented at trial."); see also Irvin v. Dowd, 366 U.S. 717, 722–23 (1961) ("It is not
required, however, that the jurors be totally ignorant of the facts and issues involved.
In these days of swift, widespread and diverse methods of communication, an
important case can be expected to arouse the interest of the public in the vicinity,
and scarcely any of those best qualified to serve as jurors will not have formed some
impression or opinion as to the merits of the case. This is particularly true in criminal
cases. To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court."); State v. Avery, 374 S.C. 524, 531–33,
649 S.E.2d 102, 105–06 (Ct. App. 2007) (finding the trial court did not abuse its
discretion in denying defendant's motion for a change of venue based on pretrial
publicity because the trial court "individually examined these venirepersons; the
court inquired as to each venireperson's (1) exposure to the case, (2) formation of
opinions about the case, and (3) ability to set aside those opinions in order to
determine with impartiality whether the defendant was guilty beyond a reasonable
doubt," excusing the two venirepersons who had knowledge of the case, had formed
an opinion in the case, and could not set their opinion aside and be impartial).
Additionally, Sidney cannot prove any actual prejudice from pretrial publicity
because none of the members of the venire with knowledge of the case or who knew
any of the witnesses in the case were seated on the petit jury. See Evins, 373 S.C. at
413, 645 S.E.2d at 908 ("It is the defendant's burden to demonstrate actual juror
prejudice as a result of such publicity."); id. at 412–13, 645 S.E.2d at 908 (finding
defendant did not prove he suffered any prejudice from the denial of his motion to
change venue based on pre-trial publicity even where seven of the twelve seated
jurors "had some knowledge of the case" because (1) "the trial court and defense
counsel conducted a thorough voir dire of the jury pool," (2) all of the jury pool
members who had knowledge of defendant or his pending charge in another murder
stated they could "put that knowledge aside," and (3) the defense did not use all of
its peremptory challenges); State v. Caldwell, 300 S.C. 494, 502, 388 S.E.2d 816,
821–22 (1990) (finding trial court did not abuse its discretion in denying defendant's
motion for a change of venue where "eleven of the seated jurors and two of the
alternate jurors were aware of media coverage of the crime," because "those jurors
expressed to the trial judge no doubt or reservation of their ability to impartially
serve as a juror and to decide the matter solely on the evidence presented," and thus,
the defendant did not prove prejudice or extraordinary circumstances warranting a
change of venue), overruled on other grounds by State v. Evans, 371 S.C. 27, 30,
637 S.E.2d 313, 315 (2006); State v. Stanko, 402 S.C. 252, 277–79, 741 S.E.2d 708,
721–22 (2013) (finding the trial court did not abuse its discretion in denying
defendant's motion to change venue where "seven of the twelve jurors seated had
some knowledge of the case," but defendant did not prove prejudice or "present even
one juror who stated he or she could not ignore exposure to pretrial publicity prior
to serving as a juror"), overruled on other grounds by State v. Burdette, 427 S.C.
490, 832 S.E.2d 575 (2019).
Second, the trial court was well within its discretion to not change venue due to
Victim's aunt being the Horry County Clerk of Court. Sidney did not demonstrate
he was prejudiced by Victim's aunt's position as the clerk of court. Sidney did not
allege Victim's aunt had acted improperly as the clerk of court in this case; he only
challenged the appearance of impropriety.
The trial court acted prudently to prevent the appearance of any impropriety by
asking Victim's aunt to let one of her assistant clerks handle the case, asking Victim's
aunt to not be in the courtroom for the trial, and not mentioning the clerk's name to
the jury. Victim's aunt was not present for the jury selection, she had no hand in the
voir dire process or selecting the jury, and the only time her name was said or
provided to the jury pool was on the jury summons. But see State v. Sullivan, 39
S.C. 400, 17 S.E. 865, 867–68 (1893) (finding the circuit court did not abuse its
discretion in changing the venue of a trial from Greenville County when the
defendant was charged with murdering the half-brother of the Greenville sheriff,
who "had acted as a member of the board of jury commissioners for that county, and
by which board such panel of petit jurors had been selected, and also . . . had
summoned, or caused to be summoned, every one of such petit jurors for attendance
upon the court at that term"). Sidney failed to demonstrate that any of the jurors
noted Victim's aunt's name on the juror summons or that they believed or knew that
Victim and her aunt were related. Therefore, we find the trial court did not err in
denying Sidney's motion to change venue.
2. Directed Verdict
Sidney argues the trial court erred in denying his motion for a directed verdict
because there was no direct or substantial circumstantial evidence that he kidnapped
or conspired with Tammy to kidnap Victim. We disagree.
While the State did not present any direct evidence of Sidney's guilt, it did present
substantial circumstantial evidence. See State v. Zeigler, 364 S.C. 94, 103, 610
S.E.2d 859, 863 (Ct. App. 2005) ("The appellate court may reverse the trial judge's
denial of a motion for a directed verdict only if there is no evidence to support the
judge's ruling."); State v. Curtis, 356 S.C. 622, 633, 591 S.E.2d 600, 605 (2004) ("In
reviewing a motion for directed verdict, the trial judge is concerned with the
existence of the evidence, not with its weight."); id. at 633–34, 591 S.E.2d at 605("If there is any direct evidence or substantial circumstantial evidence reasonably
tending to prove the guilt of the accused, the [c]ourt must find the case was properly
submitted to the jury.").
The State presented evidence indicating Victim disappeared against her will. The
State also presented evidence Sidney kidnapped Victim, including evidence
indicating: (1) Sidney had motive to kidnap and harm Victim—to appease Tammy's
anger about the affair and to avoid any negative consequences of Victim's possible
pregnancy; (2) Sidney went to Walmart hours before Victim disappeared to purchase
a pregnancy test when Victim was showing symptoms of pregnancy; (3) Tammy
was in control of both her and Sidney's cell phones from November 2, 2013, when
she discovered the affair, until the early morning hours of December 18, 2013, when
Victim disappeared; (4) based on their cell phone location data, the Moorers' life
pattern changed drastically after Tammy discovered the affair and this change
showed the Moorers' phones were increasingly located in the same vicinity as each
other; (5) Sidney admitted he spoke to Victim from a payphone and later from his
own cell phone the morning she disappeared; (6) Victim spoke to Warrelmann about
the phone call with Sidney, and Warrelman said she told Victim not to meet with
Sidney, but Victim soon left her apartment and repeatedly called the payphone
number and Sidney's number after this conversation with Warrelmann; (7) Victim
repeatedly called Sidney on the morning of her disappearance, including just
moments before 3:41 a.m. when Victim's phone stopped reporting any data; (8) the
Landing, an area that Victim's cell phone data showed she did not frequent, was only
a short distance from the Moorers' home; (9) video surveillance from the morning of
Victim's disappearance showed a black truck going to and from the area of the
Landing around the time of Victim's disappearance; (10) Fredericks, an expert in
forensic video analysis, opined the truck seen in the surveillance videos was the
Moorers' black Ford F-150; (11) Sidney showed Demarino a picture of Victim after
her disappearance depicting her restrained; and (12) Sidney acted to remove any
possible incriminating evidence by removing the Moorers' old surveillance system
and purchasing a new one; removing the SD card from the Moorers' Ford F-150's
navigational system at 12:07 a.m. on December 18, 2013, three hours before Victim
disappeared; deleting his Google GPS data; pressure washing and vacuuming the
Moorers' Ford F-150 two days after Tammy would not consent to letting police
officers look inside the truck; and burning the rags used to wash their truck.
Finally, as to Sidney's argument there were no signs of struggle at the Landing or in
the Moorers' truck, we note evidence of a struggle is not required to prove a
kidnapping occurred, and in cases of inveigling or decoying, there would not be
signs of struggle because the victim is tricked into going with their kidnapper
willingly. See Stokes, 345 S.C. at 373, 548 S.E.2d at 204 ("[T]he fact that [a victim]
was 'inveigled' or 'decoyed' into going [somewhere with the defendant] negates, in
legal contemplation, the voluntariness of her participation." (internal footnotes
omitted)); State v. East, 353 S.C. 634, 637, 578 S.E.2d 748, 750 (Ct. App. 2003)
("South Carolina's kidnapping statute requires proof of an unlawful act taking one
of several alternative forms, including . . . inveiglement[ or] decoy . . . ." (emphasis
added)). The State alleged the Moorers lured Victim to the Landing by having
Sidney contact Victim and asking her to meet for the purpose of taking a pregnancy
test to determine if she was pregnant with Sidney's child. Thus, the State did not
have to prove the Moorers kidnapped Victim by force or prove there was a struggle.
See Ray v. State, 330 S.C. 184, 188, 498 S.E.2d 640, 642 (1998) (kidnapping was
proven when evidence showed the defendant inveigled victim into his truck under
the pretense he was taking her to the hospital); see also United States v. Hughes, 716
F.2d 234, 239 (4th Cir. 1983) ("nothing in the policy of the . . . kidnapping statute
justifies rewarding the kidnapper simply because he is ingenious enough to conceal
his true motive from his victim until he is able to transport her . . . [to another
location]."). Accordingly, because the State presented substantial circumstantial
evidence Sidney kidnapped Victim, we affirm the trial court's denial of Sidney's
directed verdict motion as to the kidnapping charge.
The State also presented sufficient evidence that Sidney and Tammy conspired to
kidnap Victim. Tammy's and Sidney's iPhones' locations demonstrated they tracked
Victim's whereabouts following Tammy's discovery of the affair. This and other
evidence illustrated vividly that Sidney and Tammy were operating in tandem,
focusing their joint attention on Victim before she vanished. Tammy controlled
Sidney's iPhone from November 2, 2013, until the very hour of Victim's
disappearance, when Sidney began using it again. Sidney admitted that he and
Tammy were together in their Ford F-150 in the early morning hours of December
18, 2013, including at the payphone where Sidney called Victim on the night of
Victim's disappearance and when the SD card was removed from the Moorers'
truck's navigational system. Tammy also helped Sidney clean the Moorers' Ford F-
150 truck and would not consent to allowing police officers into the truck.
Accordingly, we affirm the trial court's denial of Sidney's directed verdict motion as
to the conspiracy to kidnap charge.
Conspiracy often can only be proven by circumstantial means, as the crime often
lurks in dark caverns, far from the light of day. We conclude there was evidence of
a common design and mutual tacit agreement between Tammy and Sidney that went
well beyond mere association or suspicion. See State v. Fleming, 243 S.C. 265,
274, 133 S.E.2d 800, 805 (1963). Given the timelines and conduct the evidence bore
out, the Moorers' truck's path to the Landing was a fateful link in their long-laid
plans, plans that required Sidney and Tammy's mutual cooperation. State v. Jeffcoat,
279 S.C. 167, 170, 303 S.E.2d 855, 857 (1983).
3. Expert Testimony
Sidney argues the trial court erred in qualifying Fredericks as an expert in forensic
video analysis and allowing him to testify as to his conclusion that the Moorers' truck
was the one in the surveillance videos to the exclusion of "all other vehicles based
on headlight pattern" because the conclusion was refuted by Koenig and was
unreliable.
This issue is unpreserved for our review. At no time during the pre-trial hearing on
the admissibility of Frederick's testimony or the trial did Sidney object to Frederick's
qualifications as an expert in forensic video analysis. Instead, at the pre-trial hearing
and at trial, Sidney made it clear that he did not object to Frederick's qualifications
as an expert or his ability to conclude that the vehicle in the surveillance videos was
a Ford F-150. Sidney's only objections at the pre-trial hearing and at trial pertained
to whether Fredericks could conclude that the vehicle seen in the surveillance videos
was the Moorers' Ford F-150 to the exclusion of all others based on headlight spread
pattern analysis. Specifically, at trial, Sidney objected to (1) Frederick's ability to
conclude the vehicle seen in the surveillance videos was the Moorers' truck as being
outside the scope of Fredericks' expertise and (2) Fredericks' stating his opinion
before testifying as to his methodology and how he reached his determination. The
trial court sustained both objections. As to the first objection, the trial court
explained at this point, the State could only ask Fredericks if he made a
determination, not if he made a "match." As to the second objection, the trial court
stated Fredericks had to explain whether his opinion resulted from the reliable
application of his methodology before giving his opinion. After explaining the
method and how he made his determination in depth, Fredericks opined the Moorers'
truck was the suspect vehicle in the surveillance videos. Sidney made no further
objections when Fredericks discussed his methodology or when Fredericks testified
as to his opinion that the vehicle seen in the surveillance videos was the Moorers'
truck. Therefore, we find Sidney did not make a timely objection to this conclusion
and did not ask the trial court to rule on the specific issues of whether Fredericks'
conclusion was outside of the scope of his expertise or was unreliable even after
Fredericks extensively testified as to his methodology. State v. Byers, 392 S.C. 438,
444, 710 S.E.2d 55, 58 (2011) ("For an objection to be preserved for appellate
review, the objection must be made at the time the evidence is presented and with
sufficient specificity to inform the circuit court judge of the point being urged by the
objector." (internal citations omitted)); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497
S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first
time on appeal, but must have been raised to and ruled upon by the trial judge to be
preserved for appellate review."). Therefore, based on preservation, we affirm the
admission of Fredericks' expert opinion testimony.
IV. CONCLUSION
Accordingly, we affirm (1) the trial court's denial of the motion to change venue, (2)
the trial court's denial of Sidney's motion for a directed verdict as to his kidnapping
and conspiracy to kidnap charges, and (3) the admission of Fredericks' expert
opinion testimony.
AFFIRMED.
GEATHERS, J., and LOCKEMY, A.J., concur.