The STATE, Respondent, v. Tommy Lee JAMES, Appellant.
No. 3361
Court of Appeals of South Carolina
Decided June 25, 2001
Rehearing Denied Aug. 23, 2001
551 S.E.2d 591
Heard June 5, 2001. Certiorari Granted Nov. 15, 2001.
...
Moreover, the League does not allege injuries traceable to the challenged action of Beaufort Realty. Mere filing of plats in itself does not work any injury on the League‘s members or the public at large. Therefore, the filing of the plats and the alleged harm to League members are not causally connected.
Therefore, we hold the League does not have standing under the three-pronged Lujan test or under
AFFIRMED.
ANDERSON and STILWELL, JJ., concur.
Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, of Columbia, for Appel-
Attorney General Charles M. Condon, Chiеf Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney
ANDERSON, J.:
Tommy Lee James appeals his conviction and life sentence for first degree burglary arguing the trial court erred in (1) permitting the State to introduce evidence of his seven prior burglary convictions and (2) submitting the prior burglary indictments to the jury. We affirm.
FACTS/PROCEDURAL BACKGROUND
On the afternoon of April 5, 1997, Ramona and Richard Granger were performing lawn care at the home of Edyth Richards and Frances Gilbert when they noticed a bicycle leaning against the outside of the fence. They observed James on the front porch of the residence, walking away from the front door. His pockets were bulging. When Mrs. Granger asked James if he needed help, he replied that he was looking for “the rent man.” Mrs. Granger told James no such person lived there. James got on the bicycle and pedaled quickly away.
Mr. Granger asked his wife to check the front door. When she said the door was open, he decided to follow James. Mr. Granger called 911 on his cellular phone as he drove behind James. James was apprehended after he abandoned his bicycle and hid behind a tree. He had a screwdriver sticking out of his pocket.
Upon investigation, police determined someone forсibly gained entry to the home of Richards and Gilbert through the front door. Further, someone had rummaged through both bedrooms. Several items were missing, including thirteen rolls of quarters. Police later returned the missing property.1 After his arrest, James gave an oral statement in which he denied burglarizing the residence.
- In a prosecution for first degree burglary where the aggravating circumstance is the defendant‘s prior convictions for burglary, housebreaking, or both, should the State be limited to introducing two prior convictions?
- Does the trial court improperly allow the introduction of hearsay evidence by submitting the actual indictments of a defendant‘s prior burglary convictions to the jury?
LAW/ANALYSIS
I. Introduction of Prior Convictions
James contends the trial court erred in allowing the State to introduce seven of his prior convictions for burglary where the State could have established the aggravаting circumstance necessary to elevate the instant charge to first degree burglary with the introduction of only two prior convictions. We disagree.
Rulings on the admissibility of evidence are left to the sound discretion of the trial court. State v. Blassingame, 338 S.C. 240, 525 S.E.2d 535 (Ct.App.1999). The trial court‘s evidentiary rulings will therefore bе reversed only upon a showing of an abuse of discretion which results in prejudice. State v. Fulton, 333 S.C. 359, 509 S.E.2d 819 (Ct.App.1998).
James was indicted for first degree burglary in violation of
(A) 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 ...
(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both....
The Hamilton Court analyzed the prejudicial impact of the evidence:
[H]ad the South Carolina General Assembly wished to use the prior convictions as merely a sentence enhancer rather than as an element of the crime, it could have done so.... Certainly, a cogent argument can be made that the statute contravenes the well-established rule that evidence that an accused has committed other crimes is not admissible in the prosecution for the crime charged.
Rule 404(b), SCRE ; State v. Gregory, 191 S.C. 212, 220, 4 S.E.2d 1, 4 (1939); State v. Williams, 31 S.C.L. (2 Rich.) 418, 421-22 (1845). It is not this court‘s province, however, to question the wisdom of a legislative enactment.
Finally, Appellant asserts it was error to allow proof of the prior burglary offenses because the evidence was not admissible under any of the exceptions recognized in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). Appellant‘s argument is misplaced, however, since the State did not offer proof of his prior burglary convictions to establish motive, intent, identity, or common scheme or plan. Here, Appellant‘s prior burglary convictions were presented solely to prove an element of the crime for which he was charged. Evidence which is logically relevant tо a material element of the offense charged should not be excluded merely because it may also show guilt of another crime. See State v.
Our Supreme Court recently discussed this issue in State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000). The Court rejected a claim that
To deter repeat offenders, the General Assembly chosе to include two or more prior burglary and/or housebreaking convictions as an element of first degree burglary. The United States Supreme Court has held this is a valid state purpose which does not violate due process. We agree.
Benton, 338 S.C. at 154, 526 S.E.2d at 230 (emphasis added)(internal citation omitted). The Court noted “evidence of other crimes is admissible to establish a material fact or element of the crime charged.” Id. at 155, 526 S.E.2d at 230 (citing State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987)).
James contends that a Rule 403 analysis negates the admissibility of the additional convictions. Benton states:
[W]e note evidence of other crimes is admissible to establish a material fact or element of the crime charged. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987).... For purposes of an element of first degree burglary under
§ 16-11-311(A)(2) , we conclude the probative value of admitting the defendant‘s prior burglary and/or housebreaking convictions is not outweighed by its prejudicial effect.Rule 403, SCRE .
Further, while generally inadmissible, propensity evidence is not prohibited. Propensity evidence is admissible if offered for some purpose other than to show the accused is a bad person or he acted in conformity with his prior convictions.
Benton, 338 S.C. at 155-56, 526 S.E.2d at 230 (footnote omitted).
We are mindful of the potential for prejudicial effect in the admission of such evidence. However, as is required, the trial court instructed the jury to limit its consideration of James’ prior convictions to the particular purpose for which the convictions were offered. See Benton, 338 S.C. at 156, 526 S.E.2d at 231; Hamilton, 327 S.C. at 447, 486 S.E.2d at 516. See also
II. Admission of Prior Indictments
James maintains the trial court erred in admitting the prior indictments and submitting them to the jury for consid-
James first objected to the introduction of the indictments on this ground after the close of all evidence and the charge of the jury. This objection was untimely. The State introduced the indictments during the presentation of its case. Because James failed to contemporaneously object on the ground he now asserts, this issue is not preserved. See State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001) (contemporaneous objection required at trial to properly preserve error for appellate review); State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000) (issue not preserved if party argues one ground for objection at trial and a different ground on appeal).
CONCLUSION
We hold the trial court did not err in admitting seven of James’ prior convictions for burglary. Further, we find James’ contention that the indictments should have been excluded because they contain inadmissible, prejudicial hearsay is not preserved for our review. Accordingly, James’ first degree burglary conviction is
AFFIRMED.
HUFF, J., concurs.
SHULER, J., concurs in a separate opinion.
SHULER, J., concurring:
I agree with the decision to affirm this case but write separately because I believe the element of first degree burglary found in
Hamilton and Benton do not dispense with the requirement that all evidence be more probative than prejudicial. Instead, these сases merely hold that two prior convictions for burgla-
While I feel constrained by Benton and Hamilton to find the trial court did not err in admitting all seven burglary convictions, see, e.g., Hamilton, 327 S.C. at 445, 486 S.E.2d at 514 (citing the “fundamental рrinciple” that the State “is entitled to prove its case with evidence of its own choosing“), I am mindful that neither case involved the admission of more than two prior convictions into evidence. To me, it is readily apparent that the problem arising from this case, the seemingly unnecessary introduction of extremely prejudicial evidence of numerous prior burglary convictions, stems directly from what appears to be a general prosecutorial policy of refusing to accept a defendant‘s offer to admit the validity of the рredicate prior convictions. In my view, just because the State is entitled to reject a defendant‘s “stipulation” in this regard does not mean that in the interest of fairness it should.