State v. Bowers, 1497

• Decision Date: 21 March 1990
• Docket Number: No. 1497,1497
• Citation: 392 S.E.2d 482,301 S.C. 457
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. James Willie BOWERS, Appellant. . Heard

Page 482

392 S.E.2d 482

301 S.C. 457

The STATE, Respondent, v. James Willie BOWERS, Appellant.

No. 1497.

Court of Appeals of South Carolina.

Heard March 21, 1990.

Decided May 7, 1990.

Chief Attorney David I. Bruck and Asst. Appellant Defender Stephen P. Williams of S.C. Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., and Staff Atty. Miller W. Shealy, Jr., Columbia, and Sol. Robert J. Harte, Aiken, for respondent.

CURETON, Judge.

James Willie Bowers was convicted of possession of crack cocaine with intent to distribute. He appeals his conviction. We affirm.

Law enforcement officials executed a search warrant on a mobile home occupied by Bowers and his mother, Annie Bowers. Several individuals were in the home when the agents entered. One of the officers testified they entered the premises after announcing their presence and hearing movement inside. Bowers was standing near the end of a hallway. His mother was in the living room. When officials searched the home they found a matchbox containing narcotics swirling in the toilet. The bathroom is located off the hallway. A bedroom at the end of the hallway was occupied by an individual who appeared to be asleep or impaired. Considerable effort was required to awaken this person. Drug paraphernalia were found in the bedroom. Annie Bowers was holding her pocketbook which contained almost nine hundred dollars. The drugs recovered from the toilet were analyzed and determined to be crack cocaine.

Bowers argues the trial court erred in failing to grant his motion for severance of his trial from his mother's trial. He asserts he was prejudiced by the introduction of the money found in his mother's pocketbook since the case against him was circumstantial. He further argues that in a separate trial evidence of the money would have been inadmissible against him. Bowers points out the jury inquired about the money during its deliberations proving it was preoccupied with the significance of the money.

The grant or denial of a motion for severance is within the discretion of the trial judge and his ruling will not be disturbed on appeal unless an abuse of discretion is shown. State v. Allen, 269 S.C. 233, 237 S.E.2d 64 (1977). Whether or not evidence of the presence of the money would have been admissible in Bowers separate trial, we find no prejudice. Bowers did not object to the testimony about the money at trial. Bowers could have adequately protected himself from the claimed prejudice by objecting to the testimony and requesting a limiting instruction. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969); 75 Am.Jur.2d Trial Section 22 (1974); 22A C.J.S. Criminal Law Section 570 (1989).

Bowers also asserts the solicitor impermissibly commented upon his post-arrest silence during closing argument. The solicitor argued Bowers was trying to incriminate the individual found in the bedroom who died before trial. The solicitor commented Bowers did not tell anyone the drugs belonged to this person at the time the police arrested Bowers and discovered the drugs.

We find no prejudice in the solicitor's argument. We note evidence of Bowers silence was first divulged during cross- examination of the law enforcement officials by defense counsel. The record also does not contain a contemporaneous objection to the solicitor's argument. There is a motion for a mistrial in the record but no explanation of the basis for the motion. Any alleged error in the solicitor's closing argument was not preserved. State v. Myers, 391 S.E.2d 551 (S.C.1990).

As his third point, Bowers argues the trial court erred in not granting his motion for directed verdict. In ruling on a motion for directed verdict the trial court is concerned with the existence or nonexistence of evidence and not its weight. The trial judge should submit the case to the jury if there is any evidence, either direct or circumstantial, which reasonably tends...