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2011-UP-010 - State v. Dwyer

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.

Devan Jevon Dwyer, Appellant.


Appeal From Sumter County
R. Ferrell Cothran, Jr., Circuit Court Judge


Unpublished Opinion No.   2011-UP-010
Submitted January 1, 2011 – Filed January 24, 2011


AFFIRMED


Patrick M. Killen, of Sumter, for Appellant.

Attorney General Henry Alan Wilson, 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 C. Kelly Jackson, of Sumter, for Respondent.

PER CURIAM: Devan Jevon Dwyer was convicted of first-degree burglary, armed robbery, two counts of assault and battery with intent to kill (ABWIK), and possession of a firearm during the commission of a violent crime.  On appeal, Dwyer argues the trial court erred in excluding photos of drugs found in the victim's home and violated Dwyer's constitutional right to confront witnesses. We affirm.[1]

1. As to whether the trial court erred in excluding photographs taken by the police on the night in question that depicted illegal drugs in the victim's home: Because Dwyer failed to introduce the evidence during trial after the trial court granted the motion in limine to exclude the photos, we find this issue is not preserved for our review.  State v. Simpson, 325 S.C. 37, 42, 479 S.E.2d 57, 60 (1996) ("A ruling in limine is not a final ruling on the admissibility of evidence. Unless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for review.") (internal citation omitted); S.C. Dep't of Highways & Pub. Transp. v. Galbreath, 315 S.C. 82, 83 n.2, 431 S.E.2d 625, 627 n.2 (Ct. App. 1993) (noting the losing party has the burden to introduce the evidence during trial after the trial court granted the motion in limine and "even where a motion in limine is granted, it is not the final ruling on the admissibility of the evidence." (citing State v. Floyd, 295 S.C. 518, 369 S.E.2d 842 (1988))).

2.  As to whether the trial court erred in allowing the State to prosecute the second ABWIK in violation of Dwyer's constitutional right to confront victim's boyfriend: 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 [court]. Issues not raised and ruled upon in the trial court will not be considered on appeal."). 

AFFIRMED.

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


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