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2010-UP-557 - State v. Hemingway-Cox

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.

Gregory Hemingway-Cox, Appellant.


Appeal From Horry County
Thomas W. Cooper, Jr., Circuit Court Judge


Unpublished Opinion No.  2010-UP-557 
Submitted December 1, 2010 – Filed December 23, 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 Assistant Attorney General Christina J. Catoe, all of Columbia; and Solicitor J. Gregory Hembree, of Conway, for Respondent.

PER CURIAM:  Gregory Hemingway-Cox appeals his convictions for first-degree burglary, kidnapping, assault and battery of a high and aggravated nature, and possession of a weapon during the commission of a violent crime, arguing the circuit court erroneously (1) admitted identification testimony influenced by an unduly suggestive confrontation procedure and (2) relied on the victim's unreliable identification in denying his motions for directed verdicts.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.  As to whether the circuit court erred in finding the identification procedure based on third party information was not unduly suggestive and admitting the identification testimony: State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 447 (2000) (holding a court must first ascertain whether a confrontation procedure was unduly suggestive when determining whether an in-court identification violates due process); State v. Tisdale, 338 S.C. 607, 611-12, 527 S.E.2d 389, 392 (Ct. App. 2000) (holding suggestiveness arising from nongovernmental sources does not violate due process).

2. As to whether the circuit court erred in denying Hemingway-Cox's motion for directed verdicts: State v. Adams, 332 S.C. 139, 144-45, 504 S.E.2d 124, 126-27 (Ct. App. 1998) (holding if a defendant presents evidence after the denial of his motion for a directed verdict at the close of the State’s case, in order to preserve the issue for appeal, he must make another motion for a directed verdict at the close of all evidence).  Alternatively, we affirm on the merits: State v. Parler, 217 S.C. 24, 26, 59 S.E.2d 489, 489 (1950) (noting that a motion for directed verdict should have been made by the appellant at the close of all evidence, but waiving the appellant's failure to do so and considering the issue on its merits because the conviction and sentence involved the liberty of the appellant).

AFFIRMED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


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