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2004-UP-038 - State v. Toney

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Jonathan Toney, Jr.,        Appellant.


Appeal From Sumter County
Clifton Newman, Circuit Court Judge


Unpublished Opinion No. 2004-UP-038
Submitted October 15, 2003 – Filed January 20, 2004


AFFIRMED


Patrick McFadden Killen, of Sumter, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Attorney General Harold M. Coombs Jr., all of Columbia, for Respondent.

PER CURIAM:   Jonathan Toney appeals his assault and battery conviction, arguing that the trial judge erred by declining to continue the trial and by allowing into evidence a picture depicting an injury to the victim’s head.  We affirm.

FACTS

In January 2002, a Sumter county jury convicted Defendant Jonathan Toney of assault and battery with intent to kill. The indictment was based on events that took place in February 2001. On January 22, 2002, the day the trial was to start, Toney sought a continuance, arguing that Toney had not received some key evidence from the prosecution in a timely manner. The trial had been continued at least once before at Toney’s request, but Toney wanted more time for his expert to scrutinize a SLED report Toney reviewed on January 8. That report showed that the DNA retrieved from the alleged crime weapon was inconclusive because of the insufficient quantity. Toney also wanted more time for an "Evidence Processing Report” he received on January 18. That report had apparently been completed as early as August 2000 and listed some crime-related items, including swabs from a tire iron, clothing belonging to Toney, and a pair of gray tennis shoes.

The prosecution responded that Toney’s attorney was already aware of those items, and that, at any rate, the state had either already conducted some tests that yielded no results or had decided not to test the items. The prosecutor declared, "every [test] that is going to be done has been done.” The state also argued that Toney and his expert had been told to contact SLED directly if they wanted more details about the evidence. The judge denied the motion to continue the trial, ruling that "the defense has been afforded sufficient time to analyze, to evaluate, and to be ready for trial.”

Additionally, the judge overruled Toney’s objection to state’s exhibit #36, a picture depicting an injury to the victim’s head. The judge allowed the picture, finding that "the probative value is not outweighed by the prejudicial effect.” Toney appeals both rulings.

ISSUES

(1)    Did the trial court abuse its discretion in denying Toney’s motion for continuance?

(2)   Did the trial court abuse its discretion in allowing state’s exhibit #36?

ANALYSIS

"It is well-settled in South Carolina that a trial court's denial of a motion for continuance ‘will not be disturbed absent a clear abuse of discretion.’” State v. McKennedy, 348 S.C. 270, 280, 559 S.E.2d 850, 855 (2002) (citing State v. Williams, 321 S.C. 455, 459, 469 S.E.2d 49, 51 (1996)). Moreover, reversals are granted very rarely. Id. Appellate courts have "repeatedly upheld denials of motions for continuances where there is no showing that any other evidence on behalf of the defendant could have been introduced, or that any other points could have been raised, if more time had been granted to prepare for trial.” Id.

Here, the trial judge held a hearing and ascertained the arguments of both parties. He specifically asked counsel for Toney if in fact he had had a chance to review the evidence at SLED – counsel responded that he had. The trial judge asked whether Toney’s expert needed more time to conduct his own testing – counsel responded "I don’t know that … he necessarily needs more time to evaluate any additional documentation that is provided.” The trial judge asked whether the trial had been continued before – counsel said yes. What is more, counsel admitted that the state had "been very candid with providing an open-file policy.” Counsel provided no indication that the continuance would provide additional exculpatory evidence. The judge then made his ruling "based on all the information presented.” The judge clearly did not abuse his discretion.

Toney’s second objection is equally meritless. "The relevancy, materiality, and admissibility of photographs as evidence are matters left to the sound discretion of the trial court. State v. Johnson, 338 S.C.114, 122, 525 S.E.2d 519, 523 (2000) (citing State v. Kornahrens, 290 S.C.281, 288, 350 S.E.2d 180, 185 (1986). "However, photographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are irrelevant or unnecessary to the issues at trial.” Id. (citing State v. Middleton, 288 S.C. 21, 24, 339 S.E.2d 692, 693 (1986)). 

The state argued that the photograph was relevant, since it showed an injury on top of the victim’s head, corroborating her testimony that she was kneeling when Toney struck her. The trial judge ruled that the photograph was relevant and that its prejudicial effect was less than its probative value. We cannot say that the judge abused his discretion.

AFFIRMED.

HUFF, STILWELL, and BEATTY, J.J., concur.