City of Columbia v. Assaad-Faltas, 2005-UP-143

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
PartiesCity of Columbia, Respondent, v. Marie Therese Assaad-Faltas, Appellant.
Docket Number2005-UP-143
Decision Date01 March 2005

City of Columbia, Respondent,

Marie Therese Assaad-Faltas, Appellant.

No. 2005-UP-143

Court of Appeals of South Carolina

March 1, 2005


Submitted February 1, 2005.

Appeal From Richland County James R. Barber, Circuit Court Judge

Marie Therese Assaad-Faltas, of Columbia, pro se, for Appellant.

Dana M. Thye, of Columbia, for Respondent.


Marie Therese Assaad-Faltas appeals from her conviction in municipal court for shoplifting. The circuit court, in its appellate capacity, affirmed. We now affirm.


Faltas was arrested after two Wal-Mart employees witnessed her swap the labels of two less expensive folders for two more expensive binders. The arrest warrant charged her with shoplifting less than $1000 worth of merchandise in violation of section 16-13-110 of the South Carolina Code (2003).

At trial, E.J. Lipscomb, an employee of Wal-Mart, testified he witnessed Faltas exchange the labels on the binders for other labels. He testified that she then attempted to purchase the binders with the different labels. Faltas was subsequently stopped and questioned by Lipscomb and another employee, Frederick Stevens.

Lipscomb identified a Polaroid photograph taken the date of the incident and testified it properly depicted the binders and folders that Faltas attempted to purchase with swapped labels. Finally, he testified the actual binders were returned to the store shelves and the labels, which were removed, were not kept.

Stevens also testified regarding the incident. He observed Faltas removing the labels from binders and from colored folders. Stevens confirmed with the cashier that Faltas purchased binders, not folders. Faltas was stopped and had only the clear binders in her possession.

Faltas fired her counsel midway through trial. After being appropriately warned of the dangers of self-representation by the trial court, Faltas was allowed to proceed at trial pro se. She was allowed to recall several of the City's witnesses to reexamine them.

Faltas testified that she neither shoplifted nor had the intent to shoplift. She explained she switched the labels to correct an initial mislabeling by Wal-Mart. Faltas asserted that she purchased binders at the appropriate price. Finally, Faltas challenged the Polaroid photograph and indicated the binders and folders depicted were not those she attempted to purchase, nor were they the ones on which she tried to correct the labels.

Faltas was convicted of shoplifting and fined $500. The circuit court affirmed her conviction and sentence. The court subsequently denied her Rule 59(e), SCRCP, motion and a motion to perpetuate testimony.” This appeal followed.


In criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews for preserved error raised to it by appropriate exception. In reviewing criminal cases, this court may review errors of law only.” State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct. App. 2001) (internal citations omitted); see also, SC Code Ann. § 14-25-105 (Supp. 2004) (There shall be no trial de novo on any appeal from a municipal court”).


Faltas raises a multitude of issues related to the conduct and outcome of her trial in municipal court. The issues will be considered as they are presented in Faltas's Statement of Issues on Appeal in her brief.

I. Motion to Dismiss

Faltas alleges the municipal court erred in failing to dismiss her case. She claims the warrant failed to state a crime and did not provide her adequate notice; the evidence was not properly maintained and presented at trial; and the City aggravated the unfairness by inexcusably refusing to show the Defense any remaining evidence until the morning of trial.”

A. Warrant

Faltas contends the warrant failed to state a crime and did not give Appellant notice of the charges against her.” We disagree.

First, this issue was not sufficiently raised to the trial court. As such, it is not preserved for review on appeal. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).

However, as the arrest warrant serves the function of an indictment in magistrate and municipal courts, the sufficiency of the indictment may impact the subject matter jurisdiction of the court. Faltas's argument also fails on the merits. All proceedings before magistrates in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue.” S.C. Code Ann. § 22-3-710 (Supp. 2004). This section requires the offense with which a party is charged should be set forth plainly and substantially, ” so as to enable the party accused to understand the nature of the offense charged, in order that the party may be prepared to meet the charge at the proper time. See State v. Randolph, 239 S.C. 79, 84, 121 S.E.2d 349, 351 (1961).

The affidavit as part of the arrest warrant clearly sets forth the location of the crime and the facts underlying the crime. It explains Faltas was observed swapping price tags on merchandise for tags that were less expensive.” The arrest warrant then lists the offense and the applicable section of the South Carolina Code: Shoplifting under $1000 16-13-110.” Accordingly, we find Faltas was properly advised of the nature of the offense for which she has been charged.

B. Preservation of Evidence

Faltas's main contention throughout her brief appears to be the failure of either Wal-Mart or the City to maintain the actual folders and labels she allegedly shoplifted. She asserts that because they failed to present the actual folders at trial, the charges should have been dismissed. We disagree.

In State v. Cheeseboro, 346 S.C. 526, 538-39, 552 S.E.2d 300, 307 (2001), the South Carolina Supreme Court explained:

The State does not have an absolute duty to preserve potentially useful evidence that might exonerate a defendant Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 102 L.Ed.2d 281 (1988); State v. Mabe, 306 S.C. 355 412 S.E.2d 386 (1991); State v. Jackson, 302 S.C. 313, 396 S.E.2d 101 (1990). To establish a due process violation, a defendant must demonstrate (1) that the State destroyed the evidence in bad faith, or (2) that the evidence possessed an exculpatory value apparent before the evidence was destroyed and the defendant cannot obtain other evidence of comparable value by other means. State v. Mabe, supra; State v. Jackson, supra.

In both Cheeseboro and Mabe, evidence was destroyed without bad faith and the appellant in each case was unable to prove the evidence had exculpatory value. In Jackson, however, the evidence was found to be material and the destruction was done even though the State knew the evidence was material. The court concluded: In the case at bar, the videotape was clearly ‘material'. The exculpatory value was apparent before its destruction because one assistant solicitor was willing to drop the charges because of it. In addition, Jackson had no other evidence and could not obtain evidence of comparable value.” Jackson, 302 S.C. at 316, 396 S.E.2d at 102.

In the instant case, testimony indicated the evidence was returned to Wal-Mart after being photographed, pursuant to Wal-Mart's standard procedure. Witnesses testified the photographs accurately represented the evidence. Faltas has been unable to demonstrate the return of the evidence to Wal-Mart for re-labeling and sale was done in bad faith. Nor has Faltas, in the judgment of the circuit court and this court, explained the exculpatory value of the folders. Finally, Faltas was able to bring like folders and binders to the trial for use in cross-examination and demonstrative purposes. She was not prevented from being able to make her defense by the return of the folders and binders to the general merchandise of the store. We further adopt the reasoning and analysis of the circuit court in its well-reasoned opinion. We join the circuit court in finding that the trial court properly denied Faltas's motion to dismiss on this ground.

C. Refusal to Provide Evidence Ahead of Trial

Faltas contends the trial court erred in allowing the trial to proceed when she was not presented the evidence prior to the date of trial. We disagree.

Faltas attempts to use this issue to expand on her discussion of the previous issue regarding whether the trial court improperly refused to dismiss the case because the actual folders and binders were not maintained. At trial, she did not seek to challenge the authenticity of the photograph when it was entered into evidence. Therefore, her current issue is not preserved for review on appeal as it was not specifically raised to or ruled on by the trial court. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733.

II. Admission of the Polaroid Photograph

Faltas contends the trial court erred in admitting the photograph over Defense objection because it was...

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