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2011-UP-040 - State v. Weatherford

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.

Joshua Shane Weatherford, Appellant.


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


Unpublished Opinion No. 2011-UP-040
Submitted January 4, 2011 – Filed February 1, 2011   


AFFIRMED


Senior Appellate Defender Joseph L. Savitz, III, South Carolina Commission, of Columbia, for Appellant

Assistant Deputy Attorney General Salley W. Elliott, Office of the Attorney General, of Columbia, for Respondent(s).

PER CURIAM: Appellant, Joshua S. Weatherford, was convicted of voluntary manslaughter and sentenced to eight years imprisonment. Weatherford appeals, asserting the trial judge erred in denying his motion for directed verdict arguing there was no direct or substantial circumstantial evidence reasonably tending to prove he killed the victim, Mallory Jordan.  We affirm.[1]

1. In regard to his argument that the trial court erred in denying his motion for directed verdict we note, 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). Further, our standard of review provides, when reviewing a denial of a directed verdict, this court must view the evidence and all reasonable inferences in the light most favorable to the State.  Id.  If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury.  Id. at 292-93, 625 S.E.2d at 648.  The State presented the following substantial circumstantial evidence of guilt:  evidence of the location in which the gun was found and the improbable, to impossible, explanation of Weatherford's mother that the gun flew from Jordan's hand; inconsistencies in information from Weatherford's mother provided to the police regarding Jordan's position when he allegedly shot himself as well as how the gun could be found so far from the victim; evidence of the unnatural location of the wound and direction in which the bullet went through the brain indicating it was most probably a homicide, and the pathologist's determination all the circumstances pointed to the victim not having done it to himself and concluding to a reasonable degree of medical certainty the manner of death was homicide;  evidence that only Weatherford and his mother were present with Jordan when he suffered the fatal injury; and evidence from the expert witness testimony of Agent Simmons that her analysis of the three gunshot residue kits was most consistent with Weatherford having fired a weapon.  This evidence, when viewed collectively, presented a jury question as to Weatherford's guilt.  Both the law governing directed verdicts and our standard of review compel this court to consider only whether the State presented sufficient evidence from which a jury could fairly and logically deduce Weatherford's guilt.  Although Weatherford was able to present evidence in contradiction to, or at least possibly explaining, some of the State's evidence, the trial court was concerned with the existence or non-existence of evidence, not its weight, and the question is not whether there was evidence from which the jury could have concluded Weatherford was not guilty, but whether there was any substantial circumstantial evidence reasonably tending to prove Weatherford's guilt.  Because we find that there was, the case was properly submitted to the jury.

2. As to Weatherford's argument that there is no evidence of the sudden heat of passion necessary for voluntary manslaughter, and it was therefore error for the trial judge to instruct the jury on voluntary manslaughter, we find this argument is not preserved for our review.  First, appellant's statement of issue on appeal states only that "[t]he trial judge erred in denying defense counsel's motion for a directed verdict, as there was no direct evidence or substantial circumstantial evidence reasonably tending to prove that Weatherford had killed Mallory Jordan."  It does not mention any error in the submission of a voluntary manslaughter charge, nor does it propose error based upon lack of evidence of the "heat of passion" element of voluntary manslaughter.  Rule 208, SCACR, governing the content of appellate briefs, provides specifically as to the statement of issues on appeal that the appellant's brief contains "A statement of each of the issues presented for review" and that "[t]he statement shall be concise and direct as to each issue," and "[o]rdinarily, no point will be considered which is not set forth in the statement of the issues on appeal."  Rule 208(b)(1)(B), SCACR.  See also State v. Culbreath, 377 S.C. 326, 332, 659 S.E.2d 268, 271 (Ct. App. 2008) (noting, in order for an issue to be properly presented for appeal, the appellant's brief must set forth the issue in the statement of issues on appeal).    Further, Weatherford never raised the argument to the trial court that there was no evidence of heat of passion such that it was error to charge voluntary manslaughter to the jury.  See Jones v. Lott, 387 S.C 339, 346, 692 S.E.2d 900, 903 (2010) (holding issues and arguments are preserved for appellate review only when they are raised to and ruled on by the lower court).

AFFIRMED.

HUFF and LOCKEMY, JJ., and GOOLSBY, A.J., concur.


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