State v. Graham ( 2019 )


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  • 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.
    Yul Graham, Appellant.
    Appellate Case No. 2017-000205
    Appeal From Lexington County
    Eugene C. Griffith, Jr., Circuit Court Judge
    Unpublished Opinion No. 2019-UP-298
    Submitted June 1, 2019 – Filed August 21, 2019
    AFFIRMED
    Appellate Defender LaNelle Cantey DuRant, of
    Columbia, for Appellant.
    Attorney General Alan McCrory Wilson and Senior
    Assistant Deputy Attorney General Deborah R.J. Shupe,
    both of Columbia; and Solicitor Samuel R. Hubbard, III,
    of Lexington, all for Respondent.
    PER CURIAM: Yul Graham appeals his conviction for shoplifting and sentence
    of seven years' imprisonment suspended to three years' imprisonment and three
    years' probation. On appeal, Graham argues the trial court erred by (1) failing to
    sustain his objection to the State's unconstitutional shifting of the burden of proof
    in its closing argument, (2) charging the jury on the statutory permissive inference
    and allowing the State to argue the permissive inference in its closing argument,
    and (3) allowing statements made by Graham to be introduced at trial. We affirm.1
    1. As to whether the trial court abused its discretion by overruling Graham's third
    objection during the State's closing argument: State v. Northcutt, 
    372 S.C. 207
    ,
    222, 
    641 S.E.2d 873
    , 881 (2007) ("A trial [court] is vested with broad discretion in
    dealing with the range of propriety of closing argument, and ordinarily his rulings
    on such matters will not be disturbed."); 
    id.
     ("The appellant has the burden of
    showing that any alleged error in argument deprived him of a fair trial."); 
    id.
     ("The
    relevant question is whether the solicitor's comments so infected the trial with
    unfairness as to make the resulting conviction a denial of due process.").2
    2. As to whether the trial court abused its discretion by charging the jury on
    permissive inference: State v. Mattison, 
    388 S.C. 469
    , 478, 
    697 S.E.2d 578
    , 583
    (2010) ("A jury charge is correct if, when the charge is read as a whole, it contains
    the correct definition and adequately covers the law." (quoting State v. Adkins, 
    353 S.C. 312
    , 318, 
    577 S.E.2d 460
    , 464 (Ct. App. 2003)); State v. Santiago, 
    370 S.C. 153
    , 159, 
    634 S.E.2d 23
    , 26 (Ct. App. 2006) ("If there is any evidence to support a
    jury charge, the trial [court] should grant the requested charge."); 
    id.
     ("An appellate
    court will not reverse the trial [court's] decision regarding jury charges absent an
    abuse of discretion."); 
    S.C. Code Ann. § 16-13-120
     (2018) ("It is permissible to
    infer that any person wil[l]fully concealing unpurchased goods or merchandise of
    any store or other mercantile establishment either on the premises or outside the
    1
    We decide this case without oral argument pursuant to Rule 215, SCACR.
    2
    To the extent Graham argues the trial court erred regarding its disposition of
    Graham's first two objections, we find Graham waived any error because the trial
    court addressed Graham's objections by cautioning the State not to burden shift and
    directing the State to use different language and Graham did not seek any further
    action from the court. See Kalchthaler v. Workman, 
    316 S.C. 499
    , 502, 
    450 S.E.2d 621
    , 622 (Ct. App. 1994) (finding the appellant "waived the objection to any
    failure by the trial [court] to give the jury curative instructions and to admonish
    opposing counsel regarding his remarks" when he failed to voice a complaint as to
    the trial court's instructions given in response to the objection); State v. Wilson, 
    389 S.C. 579
    , 583, 
    698 S.E.2d 862
    , 864 (Ct. App. 2010) ("When an objecting party is
    sustained, the trial court has rendered a favorable ruling, and therefore, it becomes
    necessary that the sustained party move to cure, or move for a mistrial if such a
    cure is insufficient, in order to create an appealable issue.").
    premises of the store has concealed the article with the intention of converting it to
    his own use without paying the purchase price thereof within the meaning of
    [s]ection 16-13-110. It is also permissible to infer that the finding of the
    unpurchased goods or merchandise concealed upon the person or among the
    belongings of the person is evidence of wil[l]ful concealment.").
    3. As to whether the trial court erred by admitting Graham's statement that he "did
    it to see if he could get one over on them" into evidence: State v. Miller, 
    375 S.C. 370
    , 378, 
    652 S.E.2d 444
    , 448 (Ct. App. 2007) ("On appeal, the conclusion of the
    trial [court] as to the voluntariness of a statement will not be reversed unless so
    erroneous as to show an abuse of discretion."); id. at 378-79, 652 S.E.2d at 448
    ("[T]he appellate court does not re-evaluate the facts based on its own view of the
    preponderance of the evidence, but simply determines whether the trial [court's]
    ruling is supported by any evidence."); State v. Lynch, 
    375 S.C. 628
    , 634, 
    654 S.E.2d 292
    , 295 (Ct. App. 2007) (holding statements made to private persons are
    not subject to Miranda requirements).3
    AFFIRMED.
    LOCKEMY, C.J., and SHORT and MCDONALD, JJ., concur.
    3
    To the extent Graham argues his other statements should not have been admitted,
    we find arguments regarding those statements not preserved for appellate review.
    Irving Lionel Lewis and Officer Christopher Wayne Yarborough testified similarly
    regarding Graham's other statements; however, Graham did not object to Lewis's
    testimony at trial. See 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.").
    

Document Info

Docket Number: 2019-UP-298

Filed Date: 8/21/2019

Precedential Status: Non-Precedential

Modified Date: 10/22/2024