SC Judicial Department

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,

Clifton J. Guinn, Appellant.

Appeal From York County
J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2005-UP-522
Submitted August 1, 2005 – Filed September 15, 2005

AFFIRMED

William T. Toal, 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 David A. Spencer, all of Columbia; and Solicitor Thomas E. Pope, of York, for Respondent.

PER CURIAM: Clifton J. Guinn appeals his conviction for distribution of crack cocaine and distribution of crack cocaine within one-half mile of a public park, arguing the trial court erred in admitting evidence of an out-of-court identification and charging the incorrect law on reasonable doubt. We affirm[1] pursuant to Rule 220(b)(2), SCACR, and the following authorities: ISSUE 1: State v. Tucker, 319 S.C. 425, 428, 462 S.E.2d 263, 265 (1995) (holding the admission of identification evidence is in the discretion of the trial judge and will not be reversed absent an abuse of discretion or prejudicial legal error); Neil v. Biggers, 409 U.S. 188, 198 (1972) (using a two part analysis to determine the admissibility of out-of-court identifications: (1) whether the identification process was unduly suggestive; and (2) whether the identification was nevertheless so reliable that no substantial likelihood of misidentification existed); State v. Moore, 343 S.C. 282, 286, 289, 540 S.E.2d 445, 447, 448-49 (2000) (stating only if the procedure was suggestive should the court consider the second prong, and an identification resulting from a suggestive procedure may still be sufficiently reliable for admission into evidence depending on the totality of the circumstances, considering the opportunity of the witness to view the criminal at the scene, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation). ISSUE 2: State v. Needs, 333 S.C. 134, 154, 508 S.E.2d 857, 867 (1999) (upholding a conviction where the jury charge contained “in search of the truth” language, as long as the phrase was not combined with other offending terms).

AFFIRMED.

HEARN, C.J. and STILWELL and KITTREDGE, JJ., concur.

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