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2010-UP-542 - State v. Smith

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.

Kieve Milik Smith, Appellant.


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


Unpublished Opinion No. 2010-UP-542  
Submitted December 1, 2010 – Filed December 16, 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 Donald J. Zelenka, and Assistant Attorney General J. Anthony Mabry, all of Columbia; and Solicitor Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Kieve Milik Smith was tried with Leo Corderrel Gadsden and Anthony Wilder for burglary, kidnapping, murder, and assault and battery with intent to kill (ABWIK) after the home invasion of Patricia Green and subsequent shootings of James Williams and Sterling Spann.  Smith was convicted on all charges.  Smith appeals his convictions, arguing the trial court erred in: (1) denying his directed verdict motion and (2) admitting drug evidence when he was not charged with drug offenses.  We affirm.[1]

1. Smith contends the trial court erred in denying his directed verdict motion because the evidence presented at trial was insufficient to convict him.  However, the State presented sufficient evidence the three perpetrators of the home invasion and subsequent shootings acted in concert pursuant to a common design, sufficient evidence Smith was one of the three perpetrators, and sufficient evidence proving each crime charged.  Under the "hand of one, the hand of all" theory, "one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose."  State v. Langley, 334 S.C. 643, 648, 515 S.E.2d 98, 101 (1999).  When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight.  State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  The State produced sufficient evidence to show the three perpetrators of the home invasion and subsequent shootings acted in concert pursuant to a common design and purpose because the three men communicated and took instructions from each other during the home invasion and shootings: Gadsden got duct tape to bind Green at the direction of Wilder; Gadsden acted as lookout informing the others when people arrived at the house; Smith stopped searching the house when Wilder told him to help take care of people outside; and Smith chased Williams at the direction of Gadsden.  The State also produced sufficient evidence to show Smith was one of the three men involved in the invasion and shootings because a mask found by an officer had Smith's DNA on it, and a neighbor identified Williams's red Nike tennis shoes as the shoes worn by the man who chased and shot at one of the victims.  Lastly, the State established sufficient evidence proving each crime charged.  For the murder charge, sufficient evidence existed to establish Spann was killed with malice aforethought because he was dragged out of his car and fatally shot by one of the defendants.  See S.C. Code Ann. § 16-3-10 (2003) (defining murder as "the killing of any person with malice aforethought, either express or implied").  For the first-degree burglary charge, sufficient evidence exists to establish Smith entered Green's house with the intent to commit a crime therein and Gadsden caused physical injury to Green.  See S.C. Code Ann. § 16-11-311(A)(1) (2003) (defining first-degree burglary as the entering of "a dwelling without consent and with intent to commit a crime in the dwelling" and either he or another participant in the crime "causes physical injury to a person who is not a participant in the crime").  For the kidnapping charge, sufficient evidence exists to establish Green was unlawfully seized and confined by duct tape.  See S.C. Code Ann. § 16-3-910 (2003) (defining kidnapping as when participants "unlawfully seize, confine, inveigle, decoy, kidnap, abduct, or carry away any other person by any means whatsoever without authority of law").  For the ABWIK charge, sufficient evidence exists to establish Gadsden committed an unlawful act of a violent nature with malice aforethought against Williams by shooting him four times in the abdomen and Smith committed an unlawful act of a violent nature with malice aforethought against Williams by chasing after and shooting at Williams.  See State v. Coleman, 342 S.C. 172, 176, 536 S.E.2d 387, 389 (Ct. App. 2000) (defining ABWIK as "an unlawful act of a violent nature to the person of another with malice aforethought, either express or implied"); id. (holding a conviction for ABWIK does not require specific intent to kill, but rather it is sufficient if there is shown some general intent "demonstrated by acts and conduct from which a jury may naturally and reasonably infer intent").  Thus, viewing the evidence in the light most favorable to the State, the evidence supported submitting the case to the jury.

2. Since Smith did not raise an objection when the drug evidence was admitted, this issue is not preserved for our review.  See State v. Turner, 373 S.C. 121, 126 n.1, 644 S.E.2d 693, 696 n.1 (2007) (holding an issue not raised to or ruled upon by the trial court is not preserved on appeal); see Tupper v. Dorchester County, 326 S.C 318, 324, 487 S.E.2d 187, 191 (1997) (holding where appellant's counsel made no objection at trial, an issue cannot be raised on appeal even though appellant's co-defendant or another party objected).           

AFFIRMED.

FEW, C.J., and SHORT and WILLIAMS, JJ., concur.


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