State v. Johnson ( 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.

Brad R. Johnson, Appellant.

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Appeal From Horry County
Steven H. John, Circuit Court Judge
Monte L. Harrelson, Magistrate Court Judge

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Unpublished Opinion No.  2011-UP-115
Submitted February 1, 2011 – Filed March 22, 2011

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AFFIRMED

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Brad R. Johnson, of Oak Island, North Carolina, pro se.

John L. Weaver, of Conway, for Respondent.

PER CURIAM: A magistrate court jury found Brad R. Johnson violated section 512 of Appendix B of the Horry County Zoning Ordinance[1] designed to govern accessory buildings, structures, and their uses.  Johnson appealed the verdict to the circuit court, and the circuit court affirmed.  Johnson now appeals the circuit court's order affirming the magistrate court, arguing the circuit court erred in affirming the magistrate court's (1) denial of his motion to dismiss based on a lack of notice, (2) denial of his directed verdict motion, (3) exclusion of evidence defining the term "install," and (4) exclusion of a videotape evidencing the State's disparate treatment of him.  We affirm.[2]

1. With regard to the motion to dismiss, we find any argument Johnson lacked notice is factually without merit.  Specifically, the citation issued informed Johnson of the Horry County Zoning Ordinance he allegedly violated as well as the possibility of being fined or imprisoned for up to thirty days.  Further, any argument that the ordinance is unconstitutionally vague is not preserved for review because it was not raised to or ruled upon by the magistrate court.  See State v. Turner, 373 S.C. 121, 126 n.1, 644 S.E.2d 693, 696 n.1 (2007) (holding in order for an issue to be preserved for review, it must be raised to and ruled upon by the trial court).

2. With regard to the directed verdict motion, we find Johnson's admission in his appellate brief that his storage shed was placed within six feet of his residence in and of itself supports the magistrate court's submission of the case to the jury.  Therefore, we find neither the magistrate nor the circuit court erred.  See State v. Weston, 367 S.C. 279, 292-93, 625 S.E.2d 641, 648 (2006) (stating if any direct evidence reasonably tends to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury).

3. With regard to the exclusion of the definition of "install," Johnson failed to proffer the excluded evidence during trial; therefore, this issue is not preserved for appellate review because this court cannot determine whether he was prejudiced by the magistrate court's exclusion.  See State v. Roper, 274 S.C. 14, 20, 260 S.E.2d 705, 708 (1979) (stating when no proffer of excluded testimony is made, the appellate court is unable to determine whether the exclusion was prejudicial).

4. With regard to the exclusion of the videotape, we find the circuit court properly determined the magistrate court did not abuse its discretion in excluding the videotape as irrelevant when it depicted Johnson's neighbors' alleged ordinance violations that have no bearing on whether Johnson violated the ordinance.  See State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248, 256 (2000) (stating the trial court is given broad discretion in ruling on questions of relevance and that decision will not be reversed absent a clear abuse of discretion); State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006) (stating an abuse of discretion arises when the trial court's conclusions lack evidentiary support or are controlled by an error of law).

Based on the foregoing, the circuit court's order is

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.

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[1] Horry County, S.C., Code of Ordinances Appendix B Zoning, art. V, § 512 (2008). 

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