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2010-UP-455 - State v. Lower, Susan

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.

Susan Lower, Appellant.


Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge


Unpublished Opinion No. 2010-UP-455
Submitted October 1, 2010 – Filed October 20, 2010  


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, 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 William M. Blitch, Jr., all of Columbia; and Solicitor J. Strom Thurmond, Jr., of Aiken, for Respondent.

PER CURIAM: Susan Lower appeals her convictions for criminal sexual conduct (CSC) with a minor in the first degree, CSC with a minor in the second degree, disseminating obscene material to a minor twelve years or younger, two counts of unlawful conduct towards a child, and four counts of lewd act upon a child.  Lower argues the trial court erred in (1) refusing to grant her request for a mistrial when the State declined to proceed on seven of the seventeen charges against her and when the trial court made allegedly improper comments to the jury regarding the seven withdrawn indictments, and (2) allowing the State to amend two lewd act indictments such that the amendment changed the nature of the alleged offense.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and based on the reasoning of the following authorities:    

1. As to whether the trial court erred in denying Lower's mistrial motion when the State declined to proceed on seven of the seventeen charges against her, and when the trial court made allegedly improper comments to the jury regarding the seven withdrawn indictments: State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge.  Issues not raised and ruled upon in the trial court will not be considered on appeal."); State v. George, 323 S.C. 496, 510, 476 S.E.2d 903, 912 (1996) ("No issue is preserved for appellate review if the objecting party accepts the judge's ruling and does not contemporaneously make an additional objection to the sufficiency of the curative charge or move for a mistrial."). 

2.  As to whether the trial court erred in allowing the State to amend the dates on two lewd act indictments against Lower such that the amendment changed the nature of the alleged offense: State v. Myers, 313 S.C. 391, 393, 438 S.E.2d 236, 237 (1993) ("Amendments to an indictment are permissible if they do not change the nature of the offense; the charge is a lesser included offense of the crime charged on the indictment; or the defendant waives presentment to the grand jury and pleads guilty."); State v. Quarles, 261 S.C. 413, 417, 200 S.E.2d 384, 386 (1973) ("A motion to amend the date alleged in an indictment is addressed to the sound discretion of the trial judge, and the burden of showing an abuse of discretion and resulting prejudice is upon the party adversely affected by his ruling thereon.").

AFFIRMED.

FEW, C.J., HUFF and GEATHERS, JJ., concur.


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