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2011-UP-347 - State v. Dial

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.

Jerry Dial, Appellant.


Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge


Unpublished Opinion No.  2011-UP-347
Submitted June 1, 2011 – Filed June 29, 2011


AFFIRMED


David K. Allen and Robert T. Williams, Sr., both of Lexington, for Appellant.

J. Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM: Jerry Dial appeals the circuit court's order revoking his probation.  We affirm.[1]   

Dial first argues the circuit court erred because the State did not provide sufficient evidence to show a violation of probation.  We disagree.

The State provided evidence that Dial had actual or constructive possession of pornographic materials, a violation of the Standard Sex Offender Conditions signed by Dial upon his release.  Specifically, a probation agent testified that she observed Dial leaving the room where the materials were later discovered.  Dial also admitted he knew the materials were in the room.  We hold the State provided sufficient evidence for the circuit court to revoke probation.  See State v. Williamson, 356 S.C. 507, 510, 589 S.E.2d 787, 788 (Ct. App. 2003) ("[T]he authority of the [circuit] court to revoke [probation] may not be capriciously or arbitrarily exercised, but should always be predicated upon an evidentiary showing of fact tending to establish violation of the conditions."); State v. Hamilton, 333 S.C. 642, 647, 511 S.E.2d 94, 96 (Ct. App. 1999) (holding an appellate "court's authority to review such a decision is confined to correcting errors of law unless the lack of legal or evidentiary basis indicates the circuit judge's decision was arbitrary and capricious."). 

Dial's argument that his Fifth Amendment rights were violated is not preserved for our review.  See State v. Bryant, 383 S.C. 410, 418, 680 S.E.2d 11, 15 (Ct. App. 2009) (holding that an issue not raised to the circuit court revoking probation was not preserved for review). 

AFFIRMED.

FEW, C.J., HUFF, J., and GOOLSBY, A.J., concur.


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