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2010-UP-265 - State v. Alexander

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.

John Douglas Alexander, Appellant.


Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge


Unpublished Opinion No. 2010-UP-265
Submitted March 1, 2010 – Filed April 29, 2010


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, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:  John Douglas Alexander appeals his convictions for assault and battery with intent to kill and possession of a firearm during the commission of a violent crime.  He argues the trial court erred by failing to charge self-defense and by allowing implied malice to be charged.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities. 

1. As to whether the trial court erred in failing to instruct the jury on self-defense: State v. Brannon, 347 S.C. 85, 89, 552 S.E.2d 773, 774-75 (Ct. App. 2001) (holding an issue is not preserved for review on appeal if it was not raised to and ruled upon by the trial court); Id. at 89, 552 S.E.2d at 775 (finding an issue conceded at trial cannot be argued on appeal). 

2. As to whether the trial court erred in charging the implied malice jury instruction: State v. Carlson, 363 S.C. 586, 595-96, 611 S.E.2d 283, 288 (Ct. App. 2005) (affirming that constitutional arguments are not an exception to the error preservation rule and "if not raised to the trial court are deemed waived on appeal"); Brannon, 347 S.C. at 89, 552 S.E.2d at 774-75 (holding an issue is not preserved for review on appeal if it was not raised to and ruled upon by the trial court).[2]

AFFIRMED.      

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


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

[2]  Because the issue is unpreserved, we decline to analyze this case in light of  State v. Belcher, 385 S.C. 597, 612-13, 685 S.E.2d 802, 810 (2009) (stating its holding that "where evidence is presented that would reduce, mitigate, excuse, or justify a homicide (or assault and battery with intent to kill) caused by the use of a deadly weapon, juries shall not be charged that malice may be inferred from the use of a deadly weapon" applies to "all cases which are pending on direct review or not yet final where the issue is preserved".