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2011-UP-265 - State v. Brown

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.

Devon Miles Brown, Appellant.


Appeal From York County
Lee S. Alford, Circuit Court Judge


Unpublished Opinion No. 2011-UP-265 
Submitted May 1, 2011 – Filed June 7, 2011


AFFIRMED


Dale L. Smith, of New York, and Symmes Watkins Culbertson, Sr., of Greenville, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Office of the Attorney General, all of Columbia, for Respondent.

PER CURIAM: Appellant, Devon Miles Brown, was convicted of trafficking marijuana and was sentenced to twenty-five years imprisonment. Brown appeals, asserting the trial judge erred in (1) refusing to suppress the marijuana seized in violation of the Fourth Amendment, when the State failed to present sufficient evidence supporting the police dog's training and reliability in the search warrant affidavit and the suppression hearing, which was essential to finding probable cause, and (2) admitting other crimes evidence of uncharged marijuana possession and erroneously instructing the jury that the uncharged crimes evidence could be used to prove the elements of the charged offense, contrary to Rule 404(b), SCRE.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:  ISSUE I:  See State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001) (noting that, generally, a motion in limine is not a final determination and a contemporaneous objection must be made when the evidence is introduced at trial, unless the ruling on the motion in limine is made immediately prior to the introduction of the evidence in question); Rule 17, SCRCrimP (providing "[i]f an objection has once been made at any stage to the admission of evidence, it shall not be necessary thereafter to reserve rights concerning the objectionable evidence," with the historical notes indicating this language was taken from Rule 43(c)(1), SCRCP) and Parr v. Gaines, 309 S.C. 477, 481-82, 424 S.E.2d 515, 518-19 (Ct. App. 1992) (holding the above exact language in Rule 43(c)(1), SCRCP, merely states that once a contemporaneous objection is made, no further reservation of rights is needed to preserve the objection, but it does not alter the rule requiring a contemporaneous objection); see also State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (finding argument advanced on appeal was not raised and ruled on below and therefore was not preserved for review); State v. Haselden, 353 S.C. 190, 196, 577 S.E.2d 445, 448 (2003) (holding a party may not argue one ground at trial and another on appeal); see also Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal."); 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).  ISSUE II:  (1) Jury Instruction:  See State v. Johnson, 324 S.C. 38, 41, 476 S.E.2d 681, 682 (1996) (holding an issue not raised to and ruled on by the trial court is not preserved for appellate review); State v. Stone, 285 S.C. 386, 387, 330 S.E.2d 286, 287 (1985) (holding, in non-capital cases, defendant's failure to object to charge as given, or to request an additional charge when the opportunity to do so has been afforded, waives the right to complain on appeal); (2) Other Crimes Evidence:  See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent."); Freiburger, 366 S.C. at 134, 620 S.E.2d at 741 (finding argument advanced on appeal was not raised and ruled on below and therefore was not preserved for review); see also Rule 220(c), SCACR (providing the appellate court may affirm any ruling upon any ground appearing in the record); State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d 172, 176 (2009) (holding evidence which is logically relevant to establish a material element of the offense charged is not to be excluded merely because it incidentally reveals the accused's guilt of another crime; and evidence of other crimes which supplies the context of the crime, or is intimately connected with and explanatory of the crime charged, is admissible as res gestae evidence); State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996) (holding one of the accepted bases for the admissibility of evidence of other crimes arises when such evidence furnishes part of the context of the crime or is necessary to a full presentation of the case, or is so intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its environment, that its proof is appropriate in order to complete the story of the crime on trial by proving its immediate context or the "res gestae").[1]

AFFIRMED.

HUFF, WILLIAMS, and THOMAS, JJ., concur.


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