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2008-UP-673 - State v. Smith

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.

Randall Lane Smith, Sr., Appellant.


Appeal From Greenville County
 D. Garrison Hill, Circuit Court Judge


Unpublished Opinion No. 2008-UP-673
Submitted December 1, 2008 – Filed December 9, 2008  


AFFIRMED


Chief Appellate Defender Joseph L. Savitz, III, 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 Deborah R.J. Shupe, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent. 

PER CURIAM: Randall Lane Smith, Sr., appeals his conviction and sentence for criminal sexual conduct with a minor, second degree, arguing the circuit court erroneously permitted a listed witness the State did not identify as an expert to testify as to her expert opinions at trial and erroneously refused to declare a mistrial after one of the State’s witnesses described Smith as “that pervert.”  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:

1.  As to the issue of whether the circuit court erred in admitting the testimony of the State’s expert in child sexual abuse:  Rule 5(a)(1), SCRCrimP (requiring the State to disclose upon a defendant’s request “books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof,” as well as “any results or reports of physical or mental examinations, and of scientific tests or experiments” possessed by the State and intended for use as evidence at trial); State v. Landon, 370 S.C. 103, 108, 634 S.E.2d 660, 663 (2006) (“A violation of Rule 5 is not reversible unless prejudice is shown.”); State v. Douglas, 367 S.C. 498, 507, 508, 626 S.E.2d 59, 63-64 (Ct. App. 2006) cert. granted June 7, 2007 (holding a circuit court’s decision to admit expert testimony will not be reversed on appeal absent an abuse of discretion and a showing of both error and prejudice affecting the jury’s decision); State v. Weaverling, 337 S.C. 460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999) (finding expert testimony and behavioral evidence “concerning common behavioral characteristics of sexual assault victims and the range of responses to sexual assault encountered by experts” are “‘admissible as rape trauma evidence to prove a sexual offense occurred’” as long as their probative value outweighs any prejudicial effect). 

2.  As to the issue of whether the circuit court erred in refusing to declare a mistrial:  State v. Price, 368 S.C. 494, 499, 629 S.E.2d 363, 366 (2006) (holding an appellate court will not set aside a conviction if the circuit court’s error was harmless); State v. Stanley, 365 S.C. 24, 33, 34, 615 S.E.2d 455, 460 (Ct. App. 2005) (placing the decision to grant or deny a the extraordinary remedy of a mistrial within the sound discretion of the circuit court, and requiring a showing of both error and resulting prejudice to support a mistrial). 

AFFIRMED.

HEARN, C.J., SHORT and KONDUROS, JJ., concur.


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