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2012-UP-001 - State v. Greene

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.

Antjuan T. Greene, Appellant.


Appeal From Abbeville County
Eugene C. Griffith, Jr., Circuit Court Judge


Unpublished Opinion No. 2012-UP-001
Submitted December 1, 2011 – Filed January 4, 2012


AFFIRMED


Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

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

PER CURIAM:  Antjuan T. Greene appeals his convictions for first-degree burglary, criminal domestic violence of a high and aggravated nature (CDVHAN), and malicious injury to real property.  Greene argues the trial court erred (1) in denying his directed verdict motions on his CDVHAN and first-degree burglary charges and (2) in admitting unduly prejudicial photographs into evidence.  We affirm.[1]

1.  We find the record contains sufficient evidence upon which the trial court could have relied in denying both of Greene's directed verdict motions.  "When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight."  State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  "If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the [appellate] [c]ourt must find the case was properly submitted to the jury."  Id. at 292-93, 625 S.E.2d at 648. 

If a person commits a criminal domestic violence offense and the elements of assault and battery of a high and aggravated nature (ABHAN) are present, that person is guilty of CDVHAN.  State v. Sullivan, 362 S.C. 373, 375, 608 S.E.2d, 422, 424 (2005).  "ABHAN is 'an unlawful act of violent injury' accompanied by a circumstance of aggravation."  Id. at 375-76, 608 S.E.2d at 424 (quoting State v. Primus, 349 S.C. 576, 580, 564 S.E.2d 103, 105 (2002)).  Among the potential circumstances of aggravation is serious bodily injury.  Id. at 376, 608 S.E.2d at 424.  As to the CDVHAN charge, the State presented testimony and photographs showing the victim suffered three separate nose fractures, a cut requiring four stitches, swelling of the eyes to the point the victim could no longer see, and multiple other scrapes and bruises as a result of Greene's attack.  Based on this testimony and photographs submitted at trial, the State presented evidence that reasonably tended to prove the victim suffered serious bodily injury.  Accordingly, the record contains sufficient evidence the trial court could rely on in denying Greene's motion for a directed verdict. 

As to the burglary charge, we initially note Greene's argument concerning the victim consenting to Greene's entry into the home was never raised to or ruled upon by the trial court; therefore, it is not preserved for review.  See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party may not argue one ground at trial and an alternate ground on appeal.").  Concerning the portion of Greene's argument that is preserved, "[a] person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and . . . while in the dwelling or in immediate flight, he . . . causes physical injury to a person who is not a participant in the crime."  S.C. Code Ann. § 16-11-311(A)(1)(b) (2003).  Because intent is generally not susceptible to proof by direct evidence, it ordinarily must be inferred from circumstantial evidence.  State v. Tuckness, 257 S.C. 295, 299, 185 S.E.2d 607, 608 (1971).  Here, the State presented testimony stating Greene repeatedly beat and kicked the victim's door and pushed aside a clothes dryer just to gain entry to the home.  Moreover, the victim testified, upon entering her home, Greene immediately came towards her and began his assault.  Based on this testimony, the State presented evidence reasonably tending to prove Greene intended to commit a crime upon entering the victim's home.  Accordingly, the trial court did not err in denying Greene's directed verdict motion on the first-degree burglary charge. 

2.  We find the trial court did not abuse its discretion in admitting into evidence photographs showing the victim's injuries.  "The relevance, materiality and admissibility of photographs are matters within the sound discretion of the trial court and a ruling will be disturbed only upon a showing of an abuse of discretion."  State v. Rosemond, 335 S.C. 593, 596, 518 S.E.2d 588, 589-90 (1999).  Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."  Rule 403, SCRE.  Photographs entered into evidence will be considered unfairly prejudicial when they create an undue tendency to suggest an improper basis for a decision, usually based on emotion.  State v. Jackson, 364 S.C. 329, 334, 613 S.E.2d 374, 376 (2005).  Such photographs which are "calculated to arouse the sympathy or prejudice of the jury should be excluded if they are irrelevant or not necessary to substantiate material facts or conditions."  Id.  "If [a] photograph serves to corroborate testimony, it is not an abuse of discretion to admit it."  Rosemond, 355 S.C. at 597, 518 S.E.2d at 590.  One of the aggravating circumstances that can lead to a conviction for CDVHAN is serious bodily injury.  See Sullivan, 362 S.C. at 375-76, 608 S.E.2d at 424.  Although the photographs in question depict blood due to the victim's injuries following her assault, the nature of these injuries is very probative as to whether the serious bodily injury circumstance has been fulfilled such that Greene could be convicted of CDVHAN.  Additionally, the photographs serve to corroborate the testimony of several witnesses as to the nature and severity of the victim's injuries.  Accordingly, the trial court did not err in admitting photographs of the victim's injuries. 

AFFIRMED.

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


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