State v. Varn ( 2012 )

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.

Frank Varn, Appellant.

Appellate Case No. 2010-168027

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Appeal From Richland County
Clifton Newman, Circuit Court Judge

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Unpublished Opinion No. 2012-UP-338
Heard May 7, 2012 – Filed May 30, 2012

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REVERSED

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Assistant Public Defender Tristan M. Shaffer of Richland County Public Defender's Office, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of the Office of the Attorney General, of Columbia; and Solicitor Daniel E. Johnson, of the Fifth Judicial Circuit, of Columbia, for Respondent.

PER CURIAM:  Appellant Frank Varn appeals from an order of the circuit court reversing the dismissal of the State's case against him for criminal domestic violence.  The circuit court found the magistrate's court abused its discretion by suppressing testimony proffered by the State and remanded the case to the magistrate's court for further proceedings.  We reverse.

We find the State failed to provide a sufficient record from which the circuit court could determine that the magistrate's court erred by suppressing the proffered testimony because the record does not clearly indicate what the excluded testimony would have been or the grounds for the magistrate's court's decision to exclude the evidence.[1]  See State v. Howard, 396 S.C. 173, 177, 720 S.E.2d 511, 514 (Ct. App. 2011) ("The admission or exclusion of evidence is left to the sound discretion of the trial court . . . ." (internal quotation marks omitted)); State v. Winestock, 271 S.C. 473, 474, 248 S.E.2d 307, 307-08 (1978) (providing it is the appellant's burden to present a sufficient record from which the appellate court can determine whether the trial court erred in the respects charged); State v. Garris, 394 S.C. 336, 350 n.12, 714 S.E.2d 888, 896 n.12 (Ct. App. 2011) ("[A]n appellate court will not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the excluded testimony would have been." (internal quotation marks omitted)); S.C. Code Ann. § 18-3-70 (Supp. 2011) (providing the circuit court must review criminal appeals from the magistrate's court based solely upon the record).

REVERSED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.

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[1] On appeal to the circuit court, it was the State's burden as the appellant to provide a sufficient record to the court.