State v. Nash

• Decision Date: 08 February 2012
• Docket Number: 2012-UP-075
• Court: Court of Appeals of South Carolina
• Parties: The State, Respondent, v. James Robert Nash, Appellant.

The State, Respondent, v. James Robert Nash, Appellant.

No. 2012-UP-075

Court of Appeals of South Carolina

February 8, 2012

Unpublished Opinion

Heard December 6, 2011.

Appeal From Pickens County Judge G. Edward Welmaker, Circuit Court Judge

Appellate Defender LaNelle Cantey Durant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia, for Respondent.

PER CURIAM.

James Robert Nash appeals his convictions of criminal sexual conduct (CSC) with a minor, first degree, and lewd act on a minor under sixteen years of age. Nash argues the trial court erred in: (1) denying his request for a continuance in order to reevaluate his competency; (2) qualifying an expert witness; (3) allowing the solicitor to testify in his closing argument regarding evidence not admitted during trial; and (4) admitting evidence of two other bad acts. We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to the continuance: A trial court's decision on a motion for continuance or a request to order a competency evaluation is within the trial court's discretion, and the decision will not be overturned on appeal absent a clear showing of an abuse of that discretion. State v. Locklair, 341 S.C. 352, 364, 535 S.E.2d 420, 426 (2000) (competency); State v. Babb, 299 S.C. 451, 454, 385 S.E.2d 827 829 (1989) (continuance). The test for determining competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceedings against him. State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683 685 (2002); see State v. Colden, 372 S.C. 428, 441-42, 641 S.E.2d 912, 920 (Ct. App. 2007) (finding no abuse of discretion by the trial court in not ordering a competency examination where defendant's voir dire with the court conclusively revealed defendant's ability to answer questions rationally and appropriately, and defendant demonstrated a manifest understanding of the proceedings, the roles of the participants, and the charges he was facing). We find no abuse of discretion in the trial court's denial of a continuance in order to reevaluate Nash's competency.

2. As to the qualification of the expert: The qualification of a witness as an expert is a matter largely within the trial court's discretion. State v. Myers, 301 S.C. 251, 255, 391 S.E.2d 551, 554 (1990). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE. "Generally, defects in the amount and quality of an expert's education or experience go to the weight to be accorded the expert's testimony and not to its admissibility." State v. Morris, 376 S.C. 189, 203, 656 S.E.2d 359, 367 (2008). We find no abuse of discretion in the trial court's qualification of the expert.

3. As to the solicitor's closing argument: The trial court has broad discretion in ruling on the propriety of closing arguments, and ordinarily the ruling will not be disturbed on appeal. State v. Patterson, 324 S.C. 5, 17, 482 S.E.2d 760, 766 (1997). The appellate court will review the argument in the context of the entire record. Id. "The relevant question is whether the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). We affirm the trial court's ruling on the propriety of the solicitor's closing argument.

4. As to the admission of other bad acts: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE. "If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing." State v. Gaines, 380 S.C. 23, 29, 667 S.E.2d 728, 731 (2008). When considering whether there is clear and convincing evidence of other bad acts, the appellate court is bound by the trial court's factual findings...