State v. Clark ( 2007 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Keith Allen Clark, Appellant.

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Appeal From Greenville County
G. Edward Welmaker, Circuit Court Judge

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Unpublished Opinion No.  2007-UP-547
Submitted November 1, 2007 – Filed December 11, 2007 

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AFFIRMED

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Appellate Defender Eleanor Duffy Cleary, South Carolina Commission, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,

Assistant Attorney General Julie M. Thames, Office of the Attorney General, of Columbia; and Solicitor Robert M. Ariail,  of Greenville, for Respondent.

PER CURIAM: Keith Allen Clark appeals the trial court’s refusal to grant a mistrial due to evidence of his prior criminal background being introduced during his trial. We affirm.[1]

FACTS

On the morning of May 1, 2004, Jane Doe, while at work, was forced into a vacant office by a male.  Once inside the office, Doe started screaming.  The male placed his hand over her mouth and told her he would kill her if she did not stop screaming.  Doe struggled with the male.  During the struggle, he inserted his hand down her shirt and started to choke her.  At some point, Doe lost consciousness.  When she regained consciousness, she noticed that her skirt had been “moved up” and her underwear was not on “all the way.”  Doe then returned to her office, and one of her coworkers called the police.  When the police arrived, Doe gave them a description of her attacker.  Doe later positively identified Clark in a photo line up.        

Clark was employed by Mitchell Contract Interiors (Mitchell) and worked as an electrician in the building where Doe worked.  Doe filed a suit against Mitchell alleging it had been negligent in hiring Clark.  As a result of the alleged attack, Clark was indicted for kidnapping and assault with intent to commit criminal sexual conduct.  Clark’s jury trial was held February 14 - 15, 2006. 

During Clark’s trial, Clark’s attorney questioned Doe about the civil suit she had filed in an attempt to show a possible motive to lie.   During his cross examination of Doe, Clark’s attorney asked: “Isn’t it true that approximately November 2004 you sued the company who Mr. Clark worked for?” Doe replied: “I am suing because the company hired someone with a criminal background and that person attacked me.”  Clark’s attorney immediately asked for a bench conference and moved for a mistrial.  The judge denied the motion for a mistrial but gave a curative instruction.

The jury found Clark guilty on both charged crimes.  Clark now appeals the trial court’s refusal to grant a mistrial due to evidence of his prior criminal background being introduced during his trial.

LAW/ANALYSIS

Following the judge’s curative instruction, Clark’s attorney failed to object to the sufficiency of the curative instruction or move for a mistrial.  Therefore, the issue is not preserved for appeal.  See State v. George, 323 S.C. 496, 511, 476 S.E.2d 903, 912 (1996) (holding appellant’s failure to object to the sufficiency of the curative instruction or move for a mistrial following the curative instruction rendered the issue unpreserved for appeal). 

CONCLUSION

For the reason stated above, the order of the trial court is

AFFIRMED.

ANDERSON, SHORT, and WILLIAMS JJ., concur.

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