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2010-UP-463 - State v. Calvin

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.

Virgil Lee Calvin, Appellant.


Appeal From Clarendon County
 Howard P. King, Circuit Court Judge


Unpublished Opinion No. 2010-UP-463
Submitted October 1, 2010 – Filed October 25, 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 Mary S. Williams, all of Columbia; and Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:   Virgil Lee Calvin was convicted of being a peeping tom and sentenced to two years' imprisonment.  On appeal, Calvin argues the trial court erred in (1) finding the State's peremptory strikes of two African-American males from the jury were proper and (2) admitting Calvin's arrest warrant into evidence as the victim's prior consistent statement.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1.  As to whether the trial court erred in finding the State's peremptory strike of Juror One was proper: State v. Shuler, 344 S.C. 604, 615, 545 S.E.2d 805, 810 (2001) (holding the appellate court applies the deferential clearly erroneous standard of review to the trial court's findings with respect to a Batson[2] challenge of a juror strike); State v. Martinez, 294 S.C. 72, 73, 362 S.E.2d 641, 642 (1987) (finding a possible criminal record is a racially neutral reason for a juror strike); State v. Casey, 325 S.C. 447, 453 n.2, 481 S.E.2d 169, 172 n.2 (Ct. App. 1997) (holding a prior criminal conviction is a racially neutral reason to strike).  We decline to reach the issue of whether the trial court erred in finding the peremptory strike of Juror Two was proper. See State v. Bryant, 372 S.C. 305, 315-16, 642 S.E.2d 582, 588 (2007) (finding when an appellant concedes an issue at trial, it cannot be raised on appeal); see also State v. Gill, 327 S.C. 253, 254, 489 S.E.2d 478, 478 (1997) (finding a Batson issue is not properly preserved for review when it was not raised to or ruled upon by the trial court). 

2.  As to whether the trial court erred in admitting the victim's prior consistent statement:  State v. Fulton, 333 S.C. 359, 363-64, 509 S.E.2d 819, 821 (Ct. App. 1998) ("To warrant reversal, an appellant must show not only an alleged error, but resulting prejudice."); State v. Jarrell, 350 S.C. 90, 100-01, 564 S.E.2d 362, 368 (Ct. App. 2002) (finding the trial court erred in admitting a statement when no allegation of recent fabrication or improper influence or motive was made, but the error was harmless because the testimony was cumulative and substantially identical to other admitted evidence).

AFFIRMED.

WILLIAMS, PIEPER, and KONDUROS, JJ., concur.


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

[2] Batson v. Kentucky, 476 U.S. 79 (1986).