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2011-UP-215 - State v. Mack

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.

Joy Mack, Appellant.


Appeal From Charleston County
J. C. "Buddy" Nicholson, Jr., Circuit Court Judge


Unpublished Opinion No.  2011-UP-215 
Submitted May 1, 2011 – Filed May 17, 2011


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM:  Joy Mack appeals his convictions for kidnapping, assault and battery with intent to kill, and armed robbery, arguing the trial court erred in the following: (1) allowing the victim to make an in-court identification of Mack when the initial identification was unreliable and (2) denying Mack's motion for a directed verdict when the evidence presented at trial was insufficient to convict Mack.  We affirm.[1] 

1. A review of the Record indicates Mack did not make a contemporaneous objection at trial and did not raise the issue of the victim's in-court identification at any point during trial.  Accordingly, the issue is not preserved for appellate review. See State v. Johnson, 324 S.C. 38, 41, 476 S.E.2d 681, 682 (1996) (holding there must be a contemporaneous objection that is ruled upon by the trial [court] in order to properly preserve an issue for appellate review). 

2. Viewing the evidence in the light most favorable to the State, the evidence supports the trial court's decision to deny Mack's motion for a directed verdict and submit the case to the jury.  Through an in-court identification, the victim identified Mack as the assailant who first entered the store holding a gun.  Because the trial court is concerned "with the existence or nonexistence of evidence, not its weight" when ruling on a directed verdict motion, we hold the trial court properly denied the motion for a directed verdict.  See State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) ("When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight.").

AFFIRMED.

SHORT, KONDUROS, and GEATHERS, JJ., concur. 


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