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2009-UP-167 - State v. Davis

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.

Herbert Wincell Davis, Jr., Appellant.


Appeal From Richland County
 G. Thomas Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-167
Submitted April 23, 2009 – Filed April 27, 2009


AFFIRMED


Appellate Defender M. Celia Robinson, 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 Michelle J. Parsons, and Solicitor Warren B. Giese, all of Columbia, for Respondent.

PER CURIAM:  Herbert Wincell Davis, Jr., appeals his conviction and five-year sentence for criminal domestic violence, third or greater offense, arguing the trial court erred in admitting prejudicial testimony and improper rebuttal evidence.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:    

1.  As to whether the trial court erred in admitting prejudicial testimony by the victim concerning comforting her son after the incident:  Rule 401, SCRE (defining relevant evidence as evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."); State v. Gillian, 373 S.C. 601, 613, 646 S.E.2d 872, 878 (2007) (holding admission or exclusion of evidence is a matter within the trial court's sound discretion, to be disturbed only upon a showing of a manifest abuse of discretion accompanied by probable prejudice); State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006) (finding abuse of discretion occurs when conclusions of the trial court either lack evidentiary support or are controlled by an error of law); State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248, 256 (2000) (giving the trial court broad discretion in ruling on questions concerning the relevancy of evidence, and requiring clear abuse of discretion for reversal); State v. Gault, 375 S.C. 570, 574, 654 S.E.2d 98, 100 (Ct. App. 2007) (requiring a showing of prejudice to include reasonable probability that the jury's verdict was influenced by the challenged evidence). 

2.  As to whether the trial court erred in permitting the State to introduce evidence in a wholly new area on rebuttal:  State v. Watson, 353 S.C. 620, 624, 579 S.E.2d 148, 150 (Ct. App. 2003) (holding after a trial court admits evidence of new matter in the State's rebuttal, the accused is entitled to present additional evidence in surrebuttal but placing the decision whether to admit such evidence "very much in the discretion of the trial judge."); State v. Farrow, 332 S.C. 190, 194, 504 S.E.2d 131, 133 (Ct. App. 1998) (recognizing admissibility of reply testimony offered in "rebuttal of matters raised in defense" and placing admission of reply testimony within the sound discretion of the trial court). 

AFFIRMED.

PIEPER and LOCKEMY, JJ., and CURETON, A.J., concur.


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