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2005-UP-129 - Clay v. Strother

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

Albert Clay,        Respondent,

v.

Debbie Holmes Strother,        Appellant.


Appeal From Beaufort County
Jackson V. Gregory, Circuit Court Judge


Unpublished Opinion No. 2005-UP-129
Heard February 8, 2005 – Filed February 18, 2005


AFFIRMED


H. Fred Kuhn, Jr., of Beaufort, for Appellant.

James Arthur Brown, Jr., of Beaufort, for Respondent.

PER CURIAM:  Debbie Strother appeals from a verdict of $9,000 in favor of Albert Clay on his claim for malicious prosecution.  We affirm pursuant to Rule 220(b)(2), SCACR and the authorities that follow.

As to Issue I regarding the denial of Strother’s motions for a directed verdict and a judgment notwithstanding the verdict, although we question whether the issue is preserved, we conclude, in any event, that the record supports the trial court’s ruling:  Rule 50(a), SCRCP (“A motion for a directed verdict shall state the specific grounds therefor.”); Rule 50(b), SCRCP (providing a motion for a judgment notwithstanding the verdict should be made in accordance with the grounds of the motion for a directed verdict); Creech v. South Carolina Wildlife & Marine Resources Dep’t, 328 S.C. 24, 34, 491 S.E.2d 571, 576 (1997) (holding issues not raised in a motion for a directed verdict cannot be argued on appeal); Strange v. South Carolina Dep’t of Highways & Pub. Transp., 314 S.C. 427, 429-30, 445 S.E.2d 439, 440 (1994) (“In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions and to deny the motions where either the evidence yields more than one inference or its inference is in doubt.  The trial court can only be reversed by this Court when there is no evidence to support the ruling below.” (citations omitted)); McKenney v. Jack Eckerd Co., 304 S.C. 21, 22, 402 S.E.2d 887, 888 (1991) (“[W]here an accused establishes that charges were nolle prossed for reasons which imply or are consistent with innocence, an action for malicious prosecution may be maintained.”); Kinton v. Mobile Home Indus., Inc., 274 S.C. 179, 182, 262 S.E.2d 727, 728 (1980) (observing “South Carolina has long embraced the rule that a true bill of indictment is prima facie evidence of probable cause in an action for malicious prosecution,” but noting this presumption may be overcome by sufficient evidence to the contrary).

As to Issue II regarding the cross-examination of Clay about a prior offense, we find no abuse of discretion in this regard:  Rule 609(a)(1), SCRE (“[E]vidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused[.]”); Rule 403, SCRE (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”); Gamble v. Int’l Paper Realty Corp., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996) (“The admission or exclusion of evidence is a matter within the sound discretion of the trial court and absent clear abuse, will not be disturbed on appeal.”).

AFFIRMED.

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