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2009-UP-322 - State v. Kromah

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Miama Kromah, Appellant.


Appeal From Richland County
 James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-322
Heard May 12, 2009 – Filed June 15, 2009   


AFFIRMED


Tara Shurling, 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 William M. Blitch, Jr., and Solicitor Warren B Giese; all of Columbia, for Respondent.

PER CURIAM: Miama Kromah appeals her convictions and sentences for unlawful neglect of a child and infliction of great bodily injury upon a child.  She argues the trial court erred in (1) permitting the State's witnesses to testify as to the actions they took as a result of hearsay statements made by the three-year old victim who would have been incompetent to testify at trial; (2) allowing the State to argue during closing argument that the victim was deliberately hidden away from the State, implying the victim would have testified Kromah committed this crime; and (3) denying Kromah's new trial motion based on after-discovered evidence.  We affirm.

1.  We find Kromah's argument that the trial court erred in permitting the State's witnesses to testify unpreserved for review.  With regards to Heather Smith's testimony, the objection did not specifically pertain to her reliance on the victim's statements, but rather addressed the form of the State's question.  See State v. Turner, 373 S.C. 121, 126 n.1, 644 S.E.2d 693, 696 n.1 (2007) (holding in order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial court); State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005) (holding an objection should be addressed to the trial court in a sufficiently specific manner that it brings attention to the exact error).  Similarly, the objection lodged during Investigator Roy Livingston's direct-examination did not address any alleged hearsay statement.

2.  We find Kromah's argument that the trial court erred in allowing the State's closing argument unpreserved for review because the objection addressed the lack of evidence to support the State's arguments, not the implications of the argument.  Additionally, Kromah did not make a contemporaneous objection to the closing argument based on its insinuations.  See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party may not argue one ground at trial and an alternate ground on appeal."); In the Matter of the Care & Treatment of McCracken, 346 S.C. 87, 93, 551 S.E.2d 235, 238-39 (2001) (holding the proper course is to object immediately to an improper argument).

3.  We find the trial court properly denied Kromah's new trial motion because the alleged after-discovered evidence is not such that it would probably change the result if a new trial was granted and the evidence could have been discovered and presented during her trial.  See State v. Spann, 334 S.C. 618, 619-20, 513 S.E.2d 98, 99 (1999) (holding that in order to prevail on a new trial motion based on after-discovered evidence, the appellant must show the evidence:  "(1) is such that it would probably change the result if a new trial were granted; (2) has been discovered since the trial; (3) could not in the exercise of due diligence have been discovered prior to the trial; (4) is material; and (5) is not merely cumulative or impeaching").

AFFIRMED.

SHORT, WILLIAMS, and LOCKEMY, JJ., concur.