State v. Tucker ( 2011 )

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.

James Anthony Tucker, Appellant.

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Appeal From Anderson County
J. Cordell Maddox, Jr., Circuit Court Judge

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Unpublished Opinion No.  2011-UP-537
Submitted November 1, 2011 – Filed December 5, 2011

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AFFIRMED

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Appellate Defender Elizabeth Franklin-Best, 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 Deborah R.J. Shupe, all of Columbia; and Solicitor Christina T. Adams, of Anderson, for Respondent.

PER CURIAM:  James Anthony Tucker appeals his convictions for assault and battery with intent to kill (ABWIK) and armed robbery.  Tucker argues the trial court erred in admitting irrelevant testimony and improperly instructing the jury during trial.  We affirm.[1]

1. We find the trial court did not abuse its discretion in admitting the victim's testimony regarding the changes in his lifestyle after the defendant attacked him.  Generally, "[a]ll relevant evidence is admissible," and "[e]vidence which is not relevant is not admissible."  Rule 402, SCRE.  Evidence is relevant if it has "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 401, SCRE.  Additionally, among the essential elements of ABWIK, the State must prove intent.  State v. Foust, 325 S.C. 12, 15, 479 S.E.2d 50, 51 (1996).  "Such intent may be shown by acts and conduct from which a jury may naturally and reasonably infer intent."  Id. at 16 n.4, 479 S.E.2d at 52 n.4.  Here, in presenting the victim's testimony regarding new precautions he had taken since he was attacked, the State introduced evidence tending to show the victim's impression that Tucker intended to kill the victim.  The victim's testimony suggests he took these precautions to protect his own life in the future because he believed Tucker intended to kill him during the initial attack.  Accordingly, the trial court did not err in admitting the victim's testimony. 

2.  As to Tucker's issue concerning the jury instruction, this issue is not preserved for review.  See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) ("Issues not raised and ruled upon in the trial court will not be considered on appeal.").  Accordingly, we find the trial court did not err in instructing the jury.

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCACR.