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2009-UP-394 - State v. Pernell

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.

Glenn Q. Pernell, Appellant.


Appeal From Marion County
Edward B. Cottingham, Circuit Court Judge


Unpublished Opinion No. 2009-UP-394
Heard March 18, 2009 – Filed July 20, 2009


AFFIRM


J. M. Long, Jr., of Conway, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor Edgar L. Clements, III., of Florence, for Respondent.

PER CURIAM: In this criminal case from Marion County, Glenn Q. Pernell appeals his conviction and sentence for trafficking in cocaine and trafficking in crack cocaine.  We affirm. 

FACTS AND PROCEDURE

On August 2, 2006, police conducted a "controlled buy" in which Appellant allegedly sold crack cocaine to a female confidential informant.   Five hours later, after obtaining an arrest warrant, police staked out the Imperial Motel in Marion, S.C., knowing that the confidential informant and Appellant were scheduled to meet at that location.[1]

Appellant arrived at the motel in a white Ford Crown Victoria with two male passengers.  Leaving the passengers in the vehicle, Appellant entered the motel lobby, where the police approached him to execute the arrest warrant.  A search of Appellant incident to his arrest yielded two bags of marijuana.[2]  Meanwhile, other officers searched the Crown Victoria, finding a black pouch containing cocaine, crack cocaine and scales on the driver's seat. 

While still at the scene, police read Appellant Miranda warnings, which he indicated he understood, and inquired about the black pouch.  Appellant initially confessed ownership of the pouch and its contents; however, moments later he recanted this statement and claimed the pouch and drugs were not his and that he had not arrived in the Crown Victoria.  He suggested the person who drove up in the vehicle must have fled through a nearby field.

As a result of the controlled buy, Appellant was indicted for distribution of crack (the distribution charge).  Furthermore, based on the incidents surrounding his arrest, Appellant was also indicted for: (1) trafficking in cocaine 100-200 grams; (2) possession of cocaine with the intent to distribute in close proximity to a school; (3) trafficking in crack cocaine 28-100 grams; and (4) possession of crack cocaine with the intent to distribute in close proximity to a school (collectively referred to as the trafficking and proximity charges). [3]

Trial on this matter began on February 27, 2007.  Based on discovery delays, the trial court granted a motion for a continuance of the distribution charge but denied a continuance as to the trafficking and proximity charges.

Appellant made a motion in limine to suppress any testimony about the controlled buy and offered to stipulate to the existence of a valid arrest warrant.  The trial court denied the motion, finding the testimony about the controlled buy admissible as "an integral part of [the State's] case to show the basis for the arrest."  However, the trial court offered a limiting instruction in which the jury was informed that the evidence was being offered only "for the basis of showing further arrest."

The trial court permitted testimony regarding Appellant's possession of marijuana as well as testimony that the police believed he may have been armed with a pistol when he arrived at the motel.[4] 

At the close of the trial, Appellant's motion for a mistrial was denied.  Appellant was found guilty of two counts of trafficking.  The trial court sentenced him to twenty-five years on each charge to run consecutively.  The Appellant's motion to reconsider the sentence was denied.  This appeal follows.

ISSUES ON APPEAL

I. Did the trial court err in admitting testimony about the controlled buy, Appellant's possession of marijuana, and the police's belief that Appellant may have been carrying a pistol?
 
II. Did the trial court err in denying Appellant's motion for a mistrial?
 
III. Did the trial court err in sentencing Appellant to consecutive twenty-five year prison terms?

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only.  State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  Thus, an appellate court is bound by the trial court’s factual findings unless they are clearly erroneous.  Id.  

LAW/ANALYSIS
I.

Appellant alleges the trial court erred in allowing testimony regarding the drug buy, the marijuana discovered during his arrest, and the police's belief that he may have been carrying a pistol when he arrived at the motel.  We disagree.

The admission of evidence is in the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion.  State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006); State v. Gaster, 340 S.C. 545, 557, 564 S.E.2d 87, 93 (2002).  In order to reverse the trial court's admission of evidence we must find: (1) an abuse of discretion on the part of the trial court; and (2) likely prejudice. State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004).  A trial court abuses its discretion when its conclusions lack evidentiary support or are controlled by an error of law. Pagan, 369 S.C. at 208, 631 S.E.2d at 265; State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000).

A.   The controlled drug buy

Appellant avers that the trial court erred in admitting testimony regarding the prior drug transaction with the confidential informant.[5]  We disagree.

Generally, "evidence of other distinct crimes committed by the accused may not be adduced merely to raise an inference or to corroborate the prosecution's theory of the defendant's guilt of the particular crime charged."  State v. Lyle, 125 S.C. 406, 415, 118 S.E. 803, 807 (1923); see also Rule 404(b), SCRE (1976) ("Evidence of other crimes, wrongs or acts . . . may . . .  be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.").  In addition, "evidence of other bad acts or other crimes may be admitted under the res gestae theory[.]" State v. Martucci, 380 S.C. 232, 257, 669 S.E.2d 598, 611 (Ct. App. 2008); State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996). Res gestae allows for the admission of prior bad acts when the prior acts are an "integral part of the crime . . . charged or may be needed to aid the fact finder in understanding the context in which the crime occurred." Martucci, 380 S.C. at 258, 669 S.E.2d at 612; State v. Owens, 346 S.C. 637, 652, 552 S.E.2d 745, 753 (2001), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); State v. Wood, 362 S.C. 520, 527-28, 608 S.E.2d 435, 439 (Ct. App. 2004); State v. Adams, 354 S.C. 361, 379-80, 580 S.E.2d 785, 794-95 (Ct. App. 2003). 

Here, the trial court found that testimony about the controlled buy, which occurred just five hours prior, was an integral part of the case to show the basis for the arrest.  This evidence was relevant to understanding the context in which the crime occurred as it explained why the confidential informant was at the motel[6] and how and why she recognized the black bag and the Crown Victoria.   In light of Appellant's conflicting statements as to whether he drove the Crown Victoria and owned the bag containing the drugs, the evidence of the controlled buy offered by the confidential informant demonstrated that when purchasing crack during the controlled buy she saw Appellant in possession of the black bag and noticed the white Crown Victoria parked in front of his residence.  There was no attempt by the State to introduce the video or audio surveillance of the controlled buy.   Moreover, the trial court repeatedly instructed the jury that the only purpose for the evidence was to demonstrate the basis for the arrest. 

Accordingly, the trial court did not abuse its discretion in admitting this evidence.

B.   The marijuana and testimony regarding the belief Appellant was armed

Appellant alleges that it was error for the trial court to introduce testimony that police found marijuana on his person when he was searched incident to his arrest and that they believed he may have been armed.  We find these arguments abandoned on appeal.

Appellant makes a conclusory argument that the prejudice of this testimony is manifest and brings no legal authority to this Court's attention to support his position.  Accordingly, these arguments are abandoned. See Bennett v. Investors Title Ins. Co., 370 S.C. 578, 599, 635 S.E.2d 649, 660 (Ct. App. 2006) (finding that when an appellant made only a conclusory argument and cited no legal authority the issue was abandoned); Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005) (noting that failure to cite legal authority for a position and making conclusory arguments results in an abandonment of the issue on appeal).[7]  

II.

Appellant contends it was error to deny his motion for a new trial or mistrial based on the errors alleged above.  We disagree. 

Initially we note that not all of Appellant's arguments are preserved for appeal.  At trial, Appellant moved the court "for a new trial or for a mistrial . . . [because] the testimony concerning the distribution charge was highly prejudicial."  Because Appellant did not move for a mistrial based on the testimony about the marijuana or the pistol, the only argument preserved for appeal is whether the admission of the testimony regarding the controlled buy should warrant the granting of a mistrial.  See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) (demonstrating that in order for an issue to be preserved for appellate review it must be both raised to and ruled on by the trial court); Payne v. Payne, 382 S.C. 62, 70, 674 S.E.2d 515, 519 (Ct. App. 2009) (stating that "issues not raised and ruled upon by the trial court will not be considered on appeal"); see also State v. Byram, 326 S.C. 107, 119, 485 S.E.2d 360, 366 (1997) (noting a party cannot argue one ground below and then argue a different ground on appeal).

The decision to grant or deny a motion for a mistrial is in the sound discretion of the trial court and will not be overturned absent an abuse of discretion amounting to an error of law. State v. Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (Ct. App. 2005); State v. Garrett, 350 S.C. 613, 619, 567 S.E.2d 523, 526 (Ct. App. 2002) (stating generally the grant or refusal of a new trial is within the trial judge’s discretion and will not be disturbed on appeal without a clear abuse of that discretion).  In light of our decision that it was not an abuse of discretion to admit the testimony regarding the controlled buy, the trial court correctly denied Appellant's motion for a mistrial. 

III.

Finally Appellant alleges that it was error to impose consecutive sentences.  We disagree.

A trial judge is granted broad discretion in determining a sentence. State v. Franklin, 267 S.C. 240, 246, 226 S.E.2d 896, 898 (1976); State v. Barton, 325 S.C. 522, 532, 481 S.E.2d 439, 444 (Ct. App. 1997).  The scope of the trial court's ability to inquire about information on sentencing is nearly "unlimited either as to the kind of information he may consider, or the source from which it may come." Franklin, 267 S.C. at 246, 226 S.E.2d at 898.  "Likewise whether multiple sentences should run consecutively or concurrently is a matter left to the sound discretion of the trial judge." Barton, 325 S.C. at 532, 481 S.E.2d at 444.  Moreover, absent "partiality, prejudice, oppression or corrupt motive, this Court lacks jurisdiction to disturb a sentence that is within the limit prescribed by statute." Id.; accord Stockton v. Leeke, 269 S.C. 459, 462, 237 S.E.2d 896, 897 (1997); Franklin, 267 S.C. at 246, 226 S.E.2d at 898.

The trial court considered the circumstances of this case and determined the sentences should run consecutively.  The record does not support, and Appellant does not allege, the sentence was the product of any partiality, prejudice, oppression, or corrupt motive.  Accordingly, while the sentence imposed is admittedly substantial, in the absence of an abuse of discretion, this Court is without authority to disturb it.

CONCLUSION

Because the testimony concerning the controlled buy was admissible, and the other arguments abandoned, Appellant's motion for mistrial was properly denied.  Moreover, we find no error in the trial court's imposition of consecutive sentences.  Accordingly, the ruling of the trial court is AFFIRMED

SHORT, THOMAS and GEATHERS, JJ., concur.


[1]  It appears that in order to alleviate Appellant's suspicion the confidential informant agreed to meet Appellant at the motel under a promise of sexual intercourse.

[2]  Police found one bag in Appellant's pocket and Appellant discarded another bag after seeing police approaching in the motel lobby.   

[3]  It is not disputed that the Imperial Motel is within one–half mile of Mullins Primary School as prescribed by Section 44-53-445(B)(1) of the Code of Laws of South Carolina.

[4]  No firearm was found on Appellant's person or in his vehicle; however, police discovered ammunition in the vehicle.

[5]  Appellant alleges that it was error to allow testimony about the controlled buy under the common scheme or plan exception.  However, the record indicates that the court did not admit the evidence to show a common scheme or plan.

[6]  Evidence indicates that during the controlled buy, the informant feigned interest in meeting Appellant at the hotel later in the day for sexual relations in order to ease his suspicion. 

[7]  Moreover, notwithstanding the abandonment of these arguments, in light of the overwhelming evidence of guilt and the fact that the evidence bore out that no gun was found on Appellant, the admission of this testimony did not prejudice Appellant. See State v. Hamilton, 368 S.C. 188, 213, 628 S.E.2d 482, 495 (Ct. App. 2006) (stating that this Court reviews errors in the context of the record as a whole and when there exists overwhelming evidence of guilt, we may affirm under the harmless error doctrine), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005).