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2011-UP-589 - State v. Liberto

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.

John Anthony Liberto, Appellant.


Appeal From Horry County
 Larry B. Hyman, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-589
Submitted November 1, 2011 – Filed December 21, 2011   


AFFIRMED


Johnny Gardner and Jonathan Hiller, both of Conway, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia; and Solicitor J. Gregory Hembree of Conway, for Respondent.

PER CURIAM:  John Anthony Liberto appeals his simple assault conviction, arguing the circuit court erred in (1) affirming the magistrate court's denial of his motion for a directed verdict and (2) considering the merits of his appeal.  We affirm.[1]

1.  We find the State presented sufficient evidence to deny Liberto's motion for a directed verdict.  In addition to an unlawful attempt to commit a violent injury upon another with the present ability to complete the attempt by a battery, South Carolina recognizes a criminal assault when a person by words and conduct intentionally creates a reasonable apprehension of bodily harm in another.  See State v. Sutton, 340 S.C. 393, 397-98, 532 S.E.2d 283, 285 (2000).  Here, the State presented evidence Liberto threatened and charged towards the victim causing him to retrieve a weapon in self-defense; therefore, the circuit court did not err in denying Liberto's directed verdict motion.  Additionally, despite Liberto's inability to carry out one of the threats against the victim because of the absence of the victim's family, the State presented evidence that Liberto assaulted the victim prior to ever making a threat concerning the victim's family.  Thus, the State presented sufficient evidence to support affirming the magistrate court's denial of Liberto's directed verdict. 

2.  As to Liberto's issue concerning the circuit court improperly considering the jury's finding of guilt, Liberto failed to raise this issue to the circuit court; therefore, it is not preserved for our review.  See City of Columbia v. Ervin, 330 S.C. 516, 519-20, 500 S.E.2d 483, 485 (1998) (noting an issue is not preserved for review where the defendant fails to raise the issue to the circuit court as an intermediate appellate court).

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


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