State v. Green ( 2020 )

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.
Johnathan Green, Appellant.
Appellate Case No. 2016-002256
Appeal From Orangeburg County
Edgar W. Dickson, Circuit Court Judge
Unpublished Opinion No. 2020-UP-219
Submitted February 18, 2020 – Filed July 22, 2020
AFFIRMED
Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia; and Solicitor David Michael Pascoe, Jr., of
Orangeburg, for Respondent.
PER CURIAM: Jonathan Green appeals his convictions of two counts of
attempted murder and one count of discharging a firearm into a dwelling, arguing
the trial court erred in admitting testimony about two prior bad acts because the
testimony was not relevant and did not meet an exception pursuant to Rule 404(b),
SCRE; the State failed to prove the incidents by clear and convincing evidence;
and the danger of unfair prejudice substantially outweighed the probative value of
the incidents. He also contends the trial court erred in admitting certain portions of
a 911 call because the danger of unfair prejudice from it substantially outweighed
the probative value pursuant to Rule 403, SCRE. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:
1. As to whether the trial court erred in allowing a victim to testify Green
previously assaulted and threatened her because the testimony was not relevant and
did not meet an exception pursuant to Rule 404(b), SCRE; the State failed to prove
the alleged prior incidents by clear and convincing evidence; and the danger of
unfair prejudice substantially outweighed the probative value: State v. Pagan, 369
S.C. 201, 208, 631 S.E.2d 262, 265 (2006) ("The admission of evidence is within
the discretion of the trial court and will not be reversed absent an abuse of
discretion."); id. ("An abuse of discretion occurs when the conclusions of the trial
court either lack evidentiary support or are controlled by an error of law."); State v.
Sweat, 362 S.C. 117, 126, 606 S.E.2d 508, 513 (Ct. App. 2004) ("For evidence to
be admissible, it must be relevant."); State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d
172, 176 (2009) ("Evidence is relevant and admissible if it tends to establish or
make more or less probable the matter in controversy." (citing Rules 401 & 402,
SCRE)); Rule 401, SCRE (providing relevant evidence is "evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence"); Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible to show motive, identity, the
existence of a common scheme or plan, the absence of mistake or accident, or
intent."); State v. Plyler, 275 S.C. 291, 296, 270 S.E.2d 126, 128 (1980)
("Evidence of previous difficulties or ill feelings between the accused and the
victim and of facts showing the cause of such difficulties or ill will is admissible
on the question of motives whe[n] there is some connection of cause and effect
between the evidence and the crime." (quoting 40 C.J.S. Homicide § 228 (currently
located at 41 C.J.S. Homicide § 337))); id. (finding the challenged evidence
"admissible as a circumstance bearing on the identity of the accused as the
perpetrator of the crime" because it "tend[ed] to show motive on the part of the
accused and [wa]s not so remote in time as to negate its probative value"); Blakely
v. State, 360 S.C. 636, 639, 602 S.E.2d 758, 759 (2004) ("[E]vidence of previous
threats by the defendant is admissible to show malice."); S.C. Code Ann. § 16-3-29(2015) (defining the offense of attempted murder as when "[a] person who, with
intent to kill, attempts to kill another person with malice aforethought, either
expressed or implied"); Blakely, 360 S.C. at 639, 602 S.E.2d at 759 ("[U]nder Rule
404(b), SCRE, [evidence of previous threats] is admissible as evidence of intent.");
State v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007) ("If the defendant
was not convicted of the prior crime, evidence of the prior bad act must be clear
and convincing."); State v. Kirton, 381 S.C. 7, 26, 671 S.E.2d 107, 116 (Ct. App.
2008) ("When considering whether there is clear and convincing evidence of other
bad acts, this court is bound by the trial judge's factual findings unless they are
clearly erroneous."); id. at 26-27, 671 S.E.2d at 116 ("The determination of a
witness's credibility is left to the trial [court, which] saw and heard the witness and
is therefore in a better position to evaluate his or her veracity."); Wiles, 383 S.C. at
158, 679 S.E.2d at 176 ("[E]ven whe[n] the evidence is shown to be relevant, if its
probative value is substantially outweighed by the danger of unfair prejudice, the
evidence must be excluded." (citing Rule 403, SCRE)); id. ("Unfair prejudice
means an undue tendency to suggest decision on an improper basis.").
2. As to whether the trial court erred in refusing to redact portions of a 911 call in
which a victim referenced an alleged prior threat by Green and told the operator
Green is usually armed because the danger of unfair prejudice substantially
outweighed the probative value of that portion of the tape pursuant to Rule 403,
SCRE: Pagan, 369 S.C. at 208, 631 S.E.2d at 265 ("The admission of evidence is
within the discretion of the trial court and will not be reversed absent an abuse of
discretion."); id. ("An abuse of discretion occurs when the conclusions of the trial
court either lack evidentiary support or are controlled by an error of law."); Rule
403, SCRE (providing the trial court may exclude evidence if the danger of unfair
prejudice substantially outweighs its probative value); State v. Kelley, 319 S.C.
173, 177, 460 S.E.2d 368, 370 (1995) ("[E]vidence should be excluded when its
probative value is outweighed by its prejudicial effect."); Wiles, 383 S.C. at 158,
679 S.E.2d at 176 ("Unfair prejudice means an undue tendency to suggest decision
on an improper basis.").
AFFIRMED.1
WILLIAMS, KONDUROS, and HILL, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.