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2011-UP-524 - State v. Harlin

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.

Edward Harlin, Appellant.


Appeal From Lexington County
Deadra L. Jefferson, Circuit Court Judge


Unpublished Opinion No. 2011-UP-524
Heard October 31, 2011 –Filed December 1, 2011  


AFFIRMED


Appellate Defender M. Celia Robinson and Appellate Defender Breen R. Stevens, South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, of Columbia, for Respondent.

PER CURIAM:  Appellant Edward Harlin seeks review of his convictions for committing a lewd act on a minor and two counts of criminal sexual conduct with a minor in the first degree.  Harlin asserts that the trial court erred in: (1) declining to grant a mistrial after the State's expert witness improperly vouched for the victim's veracity; and (2) refusing to instruct the jury that a party's failure to call a witness closely connected to the party can be considered as evidence that the witness's testimony would be unfavorable to the party.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1.   As to the issue of whether the trial court erred in refusing to grant a mistrial:  State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28 (2000) ("The granting or refusing of a motion for a mistrial lies within the sound discretion of the trial court[,] and its ruling will not be disturbed on appeal absent an abuse of discretion amounting to an error of law."); id. at 63, 530 S.E.2d at 628 ("In order to receive a mistrial, the defendant must show error and resulting prejudice."); State v. Baker, 390 S.C. 56, 66-68, 700 S.E.2d 440, 445-46 (Ct. App. 2010) (holding that a police officer's testimony relating her belief, after interviewing two sexual abuse victims, that the older victim should be referred for a medical examination was not impermissible bolstering because the officer did not testify she believed the victims' testimony and she did not vouch for the victims' veracity); State v. Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 130 (Ct. App. 2005) ("A curative instruction to disregard incompetent evidence and not to consider it during deliberation is deemed to have cured any alleged error in its admission.").

2.  As to the issue of whether the trial court erred in refusing to instruct the jury that a party's failure to call a witness closely connected to the party can be considered as evidence that the witness's testimony would be unfavorable to the party:  State v. Hammond, 270 S.C. 347, 356-57, 242 S.E.2d 411, 416 (1978) ("While it is always proper for an attorney in argument to the jury to point out the failure of a party to call a witness, . . . such a charge has no proper place in the judge's statement of the law.  We therefore hold . . . that this Court will not hereafter reverse a case . . . because of the trial judge's failure to charge the presumption.").

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.