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2011-UP-013 - Wyatt v. State

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

Bennie Lee Wyatt, Petitioner,

v.

State of South Carolina, Respondent.


Appeal From Spartanburg County
Kenneth G. Goode, Circuit Court Judge


Unpublished Opinion No. 2011-UP-013.
Submitted January 4, 2011 – Filed January 24, 2011 


AFFIRMED


Appellate Defender M. Celia Robinson, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Michelle Parsons Kelley, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR). 

Because there is sufficient evidence to support the PCR judge's finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 290, 342 S.E.2d 60, 60 (1986). 

Petitioner appeals his convictions for second-degree criminal sexual conduct (CSC) and lewd act on a child, arguing the trial court erred in: (1) precluding the defense from questioning witnesses about the victim's similar accusations against another man and (2) denying his directed verdict motion.  We affirm.[1] 

First, Petitioner did not present any evidence at trial relating to the victim's allegations against another man, and the trial court never ruled on the issue.   Accordingly, this issue was not preserved for review by this court.  See State v. Govan, 372 S.C. 552, 557, 643 S.E.2d 92, 94 (Ct. App. 2007) ("[A] motion in limine to exclude evidence made at the beginning of trial does not preserve the issue for appellate review because a motion in limine is not a final determination."); State v. Rice, 375 S.C. 302, 322-23, 652 S.E.2d 409, 419 (Ct. App. 2007) ("Unless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for review.") (citation omitted).    

Second, Petitioner contends the trial court erred in denying his directed verdict motion, arguing the State relied on the victim's testimony and the victim recanted her allegations against Petitioner.  Viewing the evidence in the light most favorable to the State, the evidence supports submitting the case to the jury.  The State relied on evidence other than the victim's own testimony in meeting the elements of second-degree CSC.  Specifically, Investigator Diane Lestage testified at trial regarding the contents of two written statements Petitioner gave to police, stating Petitioner admitted in the written statements he touched his daughter's breasts and vaginal area and his daughter "pulled his shorts down and pulled out his penis."  State v. Weston, 367 S.C. 279, 292-93, 625 S.E.2d 641, 648 (2006) ("If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the [appellate court] must find the case was properly submitted to the jury.").  Accordingly, because evidence exists to support the trial court's decision to submit the case to the jury, the trial court did not err in denying Petitioner's directed verdict motion.

AFFIRMED.

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


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