State v. Mathis ( 2004 )

THE STATE OF SOUTH CAROLINA

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.

Donald Mathis, Appellant.

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Appeal From Greenville County
John W. Kittredge, Circuit Court Judge

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Unpublished Opinion No.  2004-UP-571
Submitted November 1, 2004 – Filed November 15, 2004

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AFFIRMED

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Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  A Greenville County grand jury indicted Donald Mathis in February 2002 for criminal sexual conduct with a minor in the first degree.  Following a two-day trial, Mathis was convicted and sentenced to a term of thirty years.  On appeal, Mathis argues for the first time that the trial court lacked subject-matter jurisdiction “because the indictment did not sufficiently identify the alleged victim.”  The indictment read in pertinent part: “[t]hat DONALD RAY MATHIS did in Greenville County, on about the 19th day of May, 2001, commit a sexual battery on G.S.H., who was less than eleven years of age.”  Thus, Mathis avers the indictment is ineffective because it only contains the victim’s initials and not her full name.  We disagree.

Section 17-19-90 of the South Carolina Code states that “[e]very objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment before the jury shall be sworn and not afterwards.”  S.C. Code Ann. § 17-19-90 (2003).  It is beyond dispute that the alleged defect in the current case was apparent on the face of the indictment, yet Mathis failed to raise the matter to the trial court before the jury was sworn.  In Thompson v. State, 357 S.C. 192, 593 S.E.2d 139 (2004), our supreme court held that alleged defects in an indictment concerning a victim’s name do not raise jurisdictional concerns and failure to object to such “defects” pursuant to section 17-19-90 results in waiver.  Id. at 196, 593 S.E.2d at 141.  Accordingly, this issue is not preserved for our review.  

AFFIRMED. [1]

HEARN C.J., GOOLSBY, and WILLIAMS, JJ., concur.

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