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2010-UP-352 - State v. McKown

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

State of South Carolina, Respondent,

v.

Douglas McKown, Appellant.


Appeal from York County
Paul M. Burch, Circuit Court Judge


Unpublished Opinion No. 2010-UP-352
Heard April 15, 2010 - Filed July 7, 2010


AFFIRMED


Jack B. Swerling, of Columbia, and Katherine Carruth Goode, of Winnsboro, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Assistant Attorney General Mark R. Farthing and all of Columbia, for Respondent.

PER CURIAM:  Douglas McKown appeals his conviction and sentence for unlawful possession of a prescription drug, arguing the trial court erred in denying his motion to suppress and admitting certain evidence at the suppression hearing.  McKown also challenges the admission of expert testimony concerning the nature of the prescription drug and the trial court's denial of a directed verdict on the prescription drug charge.  We affirm.

FACTS/PROCEDURAL HISTORY

The circumstances surrounding this case stem from evidence seized from McKown's home pursuant to the execution of a search warrant.  In furtherance of the search warrant, police submitted an affidavit outlining various reports of drug activity involving McKown and his former girlfriend, Erin Jenkins.  The warrant affidavit also included details of a controlled buy of illegal drugs set up by police with Jenkins approximately seventy-two hours before the issuance of the warrant. 

Based on the information in the affidavit, the magistrate issued the search warrant for McKown's home on May 6, 2006.  When the warrant was executed on May 12, 2006, Jenkins answered the door.  During the search, police found cocaine in several locations within the home, including a bedroom containing both men's and women's clothing.  Police also seized one-half of a pill alleged to be Viagra.  McKown was not inside the home when the warrant was executed. 

On July 20, 2006, McKown was indicted on charges of conspiracy, unlawful possession of a controlled substance, distribution of a controlled substance, and unlawful possession of a prescription drug.  Prior to trial, defense counsel moved to suppress the evidence seized in the search, arguing the warrant was not supported by probable cause.  Defense counsel also maintained the affidavit contained false and misleading information concerning where Jenkins was living at the time of the controlled buy.  Specifically, counsel alleged that Jenkins had moved out of McKown's residence and that the affiant knowingly failed to disclose this information to the magistrate.  

Following argument on the motion, the State sought to call Jenkins as an additional witness to address McKown's claim of misrepresentation in the affidavit.  Defense counsel objected, arguing the State could not call another witness after the parties rested their evidence and the witness could not supplement the information contained in the affidavit.  The trial judge allowed Jenkins to testify over defense counsel's objection.  Her testimony revealed that at the time of the controlled buy, she had signed a lease on another residence and had moved out of McKown's home; however, she testified she still came back to McKown's home and stayed with him three or four nights per week.  Specifically, when asked to estimate the amount of time she had spent between McKown's residence and the other residence, Jenkins stated "I would say fifty/fifty."  Following closing arguments, the trial judge denied the motion to suppress and allowed the State to introduce the evidence seized in the search.  

At trial, the State elicited testimony from Officer Marvin Brown, the affiant and supervisor on the night of the controlled buy.  Officer Brown testified that cocaine and one-half of a Viagra pill was found in McKown's home.  Cynthia Mitchum, a chemist in the drug analysis department of the York County Sheriff's Department, testified she analyzed the substances seized in the search that were alleged to be cocaine.  She did not, however, conduct a chemical analysis of the pill alleged to be Viagra.  Her identification of the substance alleged to be Viagra was based on a comparison of the pill to a tablet in a controlled substance book referred to as the PDR, or the Physicians' Desk Reference.[1]  Defense witnesses Kevin Bolin, William Bolin, Neal Mitchell, and Michael Howe each testified that McKown purchased Viagra during a recent trip to Costa Rica.

Defense counsel moved for a directed verdict on the unlawful possession of a prescription drug charge on the basis that no foundation had been laid and no chemical analysis had been conducted.  The trial judge denied the motion, and the jury returned a guilty verdict on the charge.  McKown was acquitted on the remaining charges and sentenced to one year in prison, suspended upon the service of one year of probation.  This appeal followed.

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).  This Court is bound by the trial court's factual findings unless the findings are clearly erroneous.  Id.  A trial court's ruling on the admission or exclusion of evidence will not be disturbed on appeal absent an abuse of discretion.  State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006).  Searches based on warrants will be given judicial deference to the extent that an otherwise marginal search may be justified if it meets a realistic standard of probable cause.  State v. Bennett, 256 S.C. 234, 241, 182 S.E.2d 291, 294 (1971). 

ANALYSIS

On appeal, McKown maintains the trial court committed reversible error in: (1) denying his motion to suppress the evidence seized from his residence; (2) admitting additional evidence at the suppression hearing; (3) admitting expert testimony concerning the nature of the prescription drug; and (4) denying his motion for a directed verdict on the prescription drug charge.  We affirm.

1. As to whether the trial court erred in denying the motion to suppress:  We conclude the search warrant affidavit provided the magistrate with a sufficient basis for finding probable cause to issue the search warrant.  Specifically, the details in the affidavit pertaining to the events taking place seventy-two hours prior to the issuance of the warrant, namely the circumstances of the controlled buy, presented a fair probability that drugs and other contraband would be found at the residence.  See State v. Dupree, 354 S.C. 676, 691, 583 S.E.2d 437, 445 (Ct. App. 2003) (noting that a controlled buy, if properly conducted, can alone provide facts sufficient to establish probable cause for a search warrant); United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) ("[A] sufficient nexus can exist between a defendant's criminal conduct and his residence even when the affidavit supporting the warrant contains no factual assertions directly linking the items sought to the defendant's residence.") (internal quotations omitted); United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) ("[T]he nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.").  Furthermore, the information in the affidavit concerning various reports of drug activity involving McKown and Jenkins formed the basis of an ongoing police investigation which, when coupled with the information pertaining to the last seventy-two hours of that investigation, established a probable continuing course of drug activity.  See State v. Thompson, 363 S.C. 192, 207, 609 S.E.2d 556, 564 (Ct. App. 2005) (noting that in cases involving alleged drug conspiracies, courts have relaxed the requirements of staleness due to the continuous nature of such activity); Dupree, 354 S.C. at 690, 583 S.E.2d at 444 ("Where the affidavit is based in part on information provided by an informant of unknown reliability, police corroboration of details provided in the tip may establish probable cause.").  Accordingly, the trial court did not err in denying the motion to suppress, and the evidence seized as a result of the search was properly admitted at trial.[2]  See State v. Dunbar, 361 S.C. 240, 246, 603 S.E.2d 615, 618-19 (Ct. App. 2004) ("A reviewing court should give substantial deference to a magistrate's determination of probable cause.").

2. As to whether the trial court erred in admitting additional evidence at the suppression hearing:  At the in camera hearing on the motion to suppress, the State was permitted, over defense counsel's objection, to reopen the matter and call Jenkins as a witness to testify as to whether she was living at McKown's residence at the time the warrant was issued.  We find no abuse of discretion in the trial judge's decision to allow the State to present the testimony as a means of refuting defense counsel's argument concerning the falsity of the affiant's statement.  Such evidence is pertinent to a Franks review.  See State v. Humphery, 276 S.C. 42, 43, 274 S.E.2d 918, 918 (1981) (stating a motion to reopen the evidentiary record and to allow additional evidence is addressed to the sound discretion of the trial judge). 

3. As to whether the trial court erred in admitting expert testimony concerning the nature of the pill:  We find no prejudice.  While we question whether counsel should have objected at the moment the expert testified the pill was Viagra, rather than when the State moved to actually introduce the pill into evidence, we proceed to analyze this issue in an abundance of caution as the sequence of events occurred so closely together.[3]  Assuming, arguendo, that the admission of the expert's testimony was error, we find no prejudice given prior testimony in the record identifying the pill as Viagra.  Specifically, during direct examination of the State's first witness, Officer Brown testified without objection that he found one-half of a Viagra pill in the residence.  Because there was no contemporaneous objection to this testimony identifying the pill as Viagra, any alleged error in the admission of the expert's testimony concerning the identity of the pill was harmless.  See State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d 859, 863 (1993) (finding any error in admission of evidence cumulative to other unobjected-to evidence is harmless); State v. Blackburn, 271 S.C. 324, 329, 247 S.E.2d 334, 337 (1978) (recognizing admission of improper evidence is harmless where the evidence is merely cumulative to other evidence).  Moreover, while not dispositive of our resolution of this issue, we find our harmless error analysis bolstered by counsel's statement at oral argument that, as part of his trial strategy, he suggested to the jury in closing argument that if it were inclined to find the defendant guilty, then it should find him guilty of possession of Viagra.[4] 

4. Finally, as to whether the trial court erred in denying McKown's request for a directed verdict on the unlawful possession of a prescription drug charge:  There is no indication in the record that the motion was renewed at the close of all evidence; thus, this issue is not preserved for appellate review.  See State v. Bailey, 368 S.C. 39, 43 n.4, 626 S.E.2d 898, 900 n.4 (Ct. App. 2006) ("If a defendant presents evidence after the denial of his directed verdict motion at the close of the State's case, he must make another directed verdict motion at the close of all evidence in order to appeal the sufficiency of the evidence.").  Counsel acknowledged at oral argument that the record does not reveal he renewed the directed verdict motion.  While we note counsel's assertion of his longstanding practice to renew a directed verdict motion at the appropriate time, our review of the matter is nonetheless confined to the record on appeal which offers no indication the motion was renewed at the close of all evidence.  Notwithstanding, as indicated, Officer Brown's testimony, without objection, identified the pill as Viagra.  Moreover, four defense witnesses indicated McKown purchased Viagra on a recent trip.  Consequently, the issue was properly submitted to the jury.  See State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000) ("If the State presents any evidence which reasonably tends to prove the defendant's guilt, or from which the defendant's guilt could be fairly and logically deduced, the case must go to the jury."); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) (“[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the [identity] of the substance involved in an alleged narcotics transaction.”); see also United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992) (noting that federal courts do not require scientific certainty in determining the chemical composition of an alleged controlled substance).

AFFIRMED.

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


[1] Defense counsel stipulated that McKown did not have a prescription for Viagra.

[2] McKown also maintains that the affiant knew Jenkins had moved out of McKown's home at the time the warrant was issued and that the affiant knowingly provided false and misleading information concerning where she was living.  Consequently, McKown requests that the alleged misleading information be disregarded in considering the sufficiency of the affidavit to establish probable cause.  See Franks v. Delaware, 438 U.S. 154, 171-72 (1978) (stating a warrant may be rendered void where omissions are both material to the probable cause determination and evidence is presented that the affiant deliberately misled the magistrate).  We do not find a Franks violation here.  See Grossman, 400 F.3d at 218 (noting the mere fact the defendant splits his time among several different homes does not invalidate the search); United States v. Williams, 974 F.2d 480, 482 (4th Cir. 1992) (finding sufficient nexus to search motel room despite the short duration of defendant's stay).  Had the affidavit included the fact Jenkins had signed a lease on another apartment and only lived at McKown's home four days per week, the basis for probable cause would not be diluted.  See State v. Missouri, 337 S.C. 548, 554, 524 S.E.2d 394, 397 (1999) ("There will be no Franks violation if the affidavit . . . still contains sufficient information to establish probable cause.").

[3] In his brief on appeal, McKown only challenges the admission of the testimony and not the admission of the pill itself; thus, any argument concerning the admission of the pill is arguably abandoned on appeal.  See Rule 208(b)(1)(D), SCACR (an issue not argued in the brief is deemed abandoned on appeal); State v. Woods, 382 S.C. 153, 161, 676 S.E.2d 128, 132 (2009) (holding appellant's failure to challenge the trial judge's finding renders that ruling the law of the case).  Nonetheless, we find a separate basis exists for admission of the pill due to Officer Brown's prior testimony, without objection, that he found one-half of a Viagra pill in McKown's home.

[4] After the verdict was rendered, the record reflects counsel moved for a new trial, and noted "basically we conceded guilt on the charge."  While we note this statement made after the jury's verdict might not be appropriately considered as to the validity of the verdict, we do note it corroborates the message counsel conveyed to the jury in closing argument as part of his trial strategy.