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2010-UP-141 - State v. Hudson

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.

Marques A. Hudson, Appellant.


Appeal From Greenville County
 C. Victor Pyle, Jr., Circuit Court Judge


Unpublished Opinion No.  2010-UP-141
Submitted December 1, 2009 – Filed February 22, 2010


AFFIRMED


Appellate Defender LaNelle C. DuRant, 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 Julie M. Thames, Office of the Attorney General, all of Columbia; Solicitor Robert Mills Ariail, of Greenville, for Respondent.

PER CURIAM: Marques A. Hudson (Hudson) appeals his conviction for infliction of great bodily injury upon a child.  On appeal, Hudson argues the trial court erred in (1) refusing to charge the jury on assault and battery of a high and aggravated nature (ABHAN) as a lesser included offense of infliction of great bodily injury upon a child, (2) allowing the pediatric ophthalmologist to testify as to what the medical team wanted to believe in determining the cause of the victim's injuries, and (3) failing to follow the requisite procedures pursuant to a Batson challenge.  We affirm.[1]

FACTS

On October 12, 2003, the Greenville County Emergency Medical Services (EMS) responded to an emergency at Hudson’s apartment in Greenville, South Carolina.  The victim, a sixteen-month-old female, was found unresponsive and was transported to Greenville Memorial Hospital in critical condition.  On November 16, 2004, Hudson was indicted for infliction of great bodily injury upon a child pursuant to section 16-3-95 of the South Carolina Code (2007).

At trial, several physicians testified as expert witnesses for the State.  The physicians concluded the victim's injuries were inconsistent with Hudson's account of the events.  In reaching this conclusion, the physicians noted bruising on the victim's forehead, chest, back, thighs, numerous retinal hemorrhages, an acute subdural hemorrhage, and injury to the victim's pancreas.  Dr. Allison Jones, a pediatric emergency room physician at Greenville Memorial Hospital, concluded the victim could not have been injured so seriously based on Hudson's account.  Dr. Robert Seigler (Dr. Seigler), the medical director of the pediatric intensive care unit at Greenville Memorial Hospital, testified the injury to the victim's pancreas resulted from "a pretty firm hit" and the subdural hemorrhage and retinal hemorrhages required massive force.  According to Dr. Seigler, subdural hemorrhages normally result from high speed motor vehicle accidents or a large animal kicking a person in the head.  Dr. Seigler also noted retinal hemorrhages are not usually seen even in severe car accidents. 

Additionally, Dr. Seigler testified that a sixteen-month-old victim could suffer subdural and retinal hemorrhages from shaking alone but acknowledged a medical debate exists on whether shaking alone or shaking in conjunction with throwing causes these injuries.  In sum, Dr. Seigler concluded the subdural and retinal hemorrhages were inconsistent with a bathtub and stairwell fall but acknowledged the possibility that some of the forehead bruising could have resulted from such events. 

Dr. Anthony Johnson (Dr. Johnson), a pediatric ophthalmologist, also concluded the retinal hemorrhages were non-accidental and required a great deal of force.  To support his conclusion, Dr. Johnson cited to an article that examined three-hundred and sixty children who suffered injuries on stairs.  He expressly noted that some significant bruising did occur in the children in the study but none of the children sustained retinal hemorrhages. 

After the State's presentation of evidence, Hudson testified.  In explaining the cause of the victim's injuries, Hudson testified the victim slipped in the bathtub and hit her head on the soap dish while he was washing her.  Hudson testified that after the victim hit her head, she entered the water face down.  Hudson further testified that in the process of contacting EMS from a neighbor's telephone, he slipped on a blanket and tumbled down the stairwell while holding the victim.  After closing arguments, the trial court charged the jury with infliction of great bodily injury upon a child. 

The jury found Hudson guilty of infliction of great bodily injury upon a child, and the trial court sentenced him to fifteen years in prison.  This appeal followed.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Martucci, 380 S.C. 232, 246, 669 S.E.2d 598, 605-06 (Ct. App. 2008).  This court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  This court does not reevaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence.  State v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct. App. 2007).

LAW/ANALYSIS

A.    Jury Charge

Hudson argues the trial court erred in refusing to charge the jury on ABHAN because it is a lesser included offense of infliction of great bodily injury upon a child.  We disagree. 

The question of whether ABHAN is a lesser included offense of infliction of great bodily injury upon a child is a novel question of law.  Under the elements test, "[t]he lesser offense is included in the greater only if each of its elements is always a necessary element of the greater offense."  State v. Easler, 327 S.C. 121, 134, 489 S.E.2d 617, 624 (1997). Therefore, our inquiry is limited to whether the elements of ABHAN are always necessary elements of infliction of great bodily injury upon a child.

South Carolina courts have interpreted ABHAN as "an unlawful act of violent injury accompanied by circumstances of aggravation."  State v. Geiger, 370 S.C. 600, 605, 635 S.E.2d, 669, 672 (Ct. App. 2006). Circumstances of aggravation include: the use of a deadly weapon, intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, difference in gender, taking indecent liberties or familiarities with a female, purposeful infliction of shame and disgrace, and resistance to lawful authority.  Id. at 605-06, 635 S.E.2d at 672.

Section 16-3-95 defines infliction of great bodily injury upon a child as follows:

(A) It is unlawful to inflict great bodily injury upon a child. A person who violates this subsection is guilty of a felony and, upon conviction, must be imprisoned not more than twenty years.

(B) It is unlawful for a child's parent or guardian, person with whom the child's parent or guardian is cohabitating, or any other person responsible for a child's welfare as defined in Section 63-7-20 knowingly to allow another person to inflict great bodily injury upon a child. A person who violates this subsection is guilty of a felony and, upon conviction, must be imprisoned not more than five years.

(C) For purposes of this section, "great bodily injury" means bodily injury which creates a substantial risk of death or which causes serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

(D) This section may not be construed to prohibit corporal punishment or physical discipline which is administered by a parent or person in loco parentis in a manner which does not cause great bodily injury upon a child.

(E) This section does not apply to traffic accidents unless the accident was caused by the driver's reckless disregard for the safety of others.

Hudson argues section 16-3-95[2] implicitly includes circumstances of aggravation such as serious bodily injury, difference in ages, and difference in sizes.

In Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005), our supreme court held that ABHAN is not a lesser included offense of second degree lynching.  In holding ABHAN was not a lesser included offense of second degree lynching, the Knox court stated, "Since there are other circumstances of aggravation to establish ABHAN that are not included in the definition of second degree lynching, ABHAN is not a lesser included offense."  340 S.C. at 85, 610 S.E.2d at 889.  Moreover, in State v. Easler, our supreme court concluded ABHAN is not a lesser included offense of felony DUI for double jeopardy purposes because each circumstance of aggravation for ABHAN is not always a necessary element of felony DUI.  Easler, 327 S.C. at 134, 489 S.E.2d at 624.

Regardless of whether circumstances of aggravation are present in this case, Hudson’s argument is without merit.  Our inquiry is premised on whether the lesser included offense is always a necessary element of the greater offense.  A circumstance of aggravation is a necessary element of ABHAN not included in the greater offense of infliction of great bodily injury upon a child.  Therefore, ABHAN is not a lesser included offense of infliction of great bodily injury upon a child.

B.   Pediatric Ophthalmologist’s Testimony

Hudson contends the trial court erred in allowing Dr. Johnson to testify as to what the medical team would like to find in regard to head injury patients.  We conclude Hudson's argument is not preserved for review.

At trial, Dr. Johnson testified, "Every time a head injury patient is evaluated and cared for the team would like nothing more than to find some other explanation other than a non-accidental injury.  None of the team wants to find that, and therefore, all of the ---."  Hudson's counsel objected and stated, "Your Honor, I object to this doctor speaking for the team---."  The trial court sustained Hudson’s objection.

On appeal, Hudson argues Dr. Johnson's testimony did not qualify as scientific or technical knowledge pursuant to Rule 702, SCRE, and Dr. Johnson lacked the personal knowledge required for a witness pursuant to Rule 602, SCRE.  Furthermore, Hudson contends Dr. Johnson’s testimony was hearsay in violation of Rule 802, SCRE, and was prejudicial in violation of Rule 403, SCRE.

A contemporaneous objection is required to preserve an issue relating to the admissibility of evidence.  State v. Wannamaker, 346 S.C. 495, 499, 552 S.E.2d 284, 286 (2001). The objection should be addressed to the trial court in a sufficiently specific manner that brings attention to the exact error. State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005).  Rule 103(a)(1), SCRE, states that a party must state the specific ground of objection if the specific ground is not apparent from the context.  See State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205 (2007). 

Hudson's contemporaneous objection was limited solely to the issue of Dr. Johnson's role in speaking on behalf of the medical team.  As a result, Hudson's arguments regarding Rule 702, 602, and 403, SCRE, were neither raised to nor ruled upon by the trial court at the time of Hudson's objection.  Accordingly, Hudson's arguments on those grounds are not preserved for appellate review.  Nicholson v. Nicholson, 378 S.C. 523, 537, 663 S.E.2d 74, 81 (Ct. App. 2008) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.") (citation omitted).

Even though we find Hudson's counsel did not specifically object based on Rule 802, SCRE, his hearsay objection was specific enough from the context.  Sweet, 374 S.C. at 6, 647 S.E.2d at 205 (“[A]n objection must be sufficiently specific to inform the trial court of the point being urged by the objector.”)  Nevertheless, we conclude Hudson’s hearsay argument is not preserved for review.

Where an objection is sustained but objecting counsel does not move to strike the evidence, the issue is not preserved for appellate review.  Martucci, 380 S.C. at 259, 669 S.E.2d at 612-13.  Furthermore, if counsel does not request a curative instruction or mistrial after an objection has been sustained, counsel received what he asked for and cannot be heard to complain on appeal.  McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 350, 479 S.E.2d 67, 79 (Ct. App. 1996).  An examination of the record reveals Hudson's counsel neither moved to strike the testimony nor requested a curative instruction or moved for a mistrial after the objection was sustained.  As a result, Hudson's hearsay argument is not preserved.

C.   Batson Challenge

Hudson also contends the trial court erred in not following the procedure for a Batson challenge after defense counsel objected to the exclusion of an African-American lawyer.  We conclude this issue is not preserved for review. 

After the State struck an African-American lawyer, no African-American jurors remained in the jury pool.  The State's proffered reason for striking the African-American lawyer was based on the lawyer's "great deal of criminal defense work."  However, Hudson argues two white lawyers were still seated on the jury, which proves the State struck the other juror solely on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).[3]  

We decline to reach the merits of Hudson's Batson challenge.  Hudson's counsel did not make a contemporaneous objection to the trial court's procedure once the judge inquired into the state's reason for striking the African-American lawyer.  State v. Johnson, 363 S.C. at 58, 609 S.E.2d at 523 (2005) (holding to preserve an issue for review there must be a contemporaneous objection that is ruled upon by the trial court).  It is clear from the record that Hudson’s counsel objected to the selection of the jury after the jury was sworn.  As a result, Hudson’s failure to state a timely objection bars appellate review. See State v. Edwards, 374 S.C. 543, 649 S.E.2d 112 (Ct. App. 2007) overruled on other grounds by State v. Edwards, 384 S.C. 504, 682 S.E.2d 820 (2009).  ("In order to raise and preserve a Batson issue, the opposing party must move for the hearing after the jury is selected but before it is sworn.") 

CONCLUSION

Accordingly, the trial court's decision is

AFFIRMED.

WILLIAMS, PIEPER, and LOCKEMY, JJ., concur.


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

[2] Counsel for Hudson and the State cited to the pre-amended version of section 16-3-95.  See S.C. Code Ann. §16-3-95 (Supp. 2007).  The amended version of this statute currently references section 63-7-20 instead of section 20-7-490(3); however, the amended version preserves the substantive law of section 16-3-95.

[3] In Batson, the United States Supreme Court held the Equal Protection Clause of the United States Constitution prohibits a prosecutor from challenging potential jurors solely on the basis of race.  Batson, 476 U.S. at 89.