State v. White, 4196.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Anderson
• Citation: 642 S.E.2d 607
• Parties: The STATE, Respondent, v. Gary A. WHITE, Appellant.
• Docket Number: No. 4196.,4196.
• Decision Date: 16 January 2007

642 S.E.2d 607 The STATE, Respondent,
v.
Gary A. WHITE, Appellant. No. 4196. Court of Appeals of South Carolina. Submitted January 1, 2007. Decided January 16, 2007. Rehearing Denied March 22, 2007.

[642 S.E.2d 609]

Assistant Appellant Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., and Solicitor Warren B. Giese, of Columbia, for Respondent.

ANDERSON, J.:

Gary A. White appeals his convictions for kidnapping and two counts of armed robbery on the grounds: (1) the trial court erred in admitting the testimony of State's expert witness, a dog handler, without establishing the underlying scientific reliability of dog tracking; and (2) newly discovered evidence entitles White to a new trial. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

In the early morning hours of April 19, 2004, two men entered the Circle K Convenience Store on the corner of Garners Ferry Road and Old Woodlands Road in Columbia, South Carolina, where the store manager, Gwen Anthony (Anthony), was working the night shift. One of the men, Gary White (White), wore a mask and carried a gun. White approached Anthony, grasped her around her neck with his arm, and held the gun to her head. The other man removed items from Anthony's purse, emptied cash out of the register, and took lottery tickets along with an eighteen (18)-count case of

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beer. White held Anthony with the gun to her head the entire time the other man moved through the store taking items. However, at one point, Anthony suspected White had passed out for a few seconds, because his head fell onto her shoulder and the gun dropped. She smelled alcohol on his breath. While White dozed, Anthony had an opportunity to observe his clothes and to see the gun. The other man shouted at him and White awoke. As they exited the store, White forced Anthony outside, still holding her in his grip with the gun to her head.

White released Anthony and fled toward the east side of the store, following the other perpetrator in the direction of Old Woodlands Road. At the same time, Officer Rouppasong drove into the Circle K parking lot, and Anthony alerted him to the fleeing robbers. Officer Rouppasong saw one suspect running from the parking lot, pursued him, and called for back up. Following the suspect around the corner of the store, Rouppasong observed a parked vehicle with the headlights on. The suspect he had seen running from the parking lot exited the car from the passenger side and ran into the neighborhood; the driver remained in the vehicle. When his backup arrived Rouppasong approached the vehicle, apprehended the driver, and secured the car. Items that were stolen from Anthony and the Circle K were found in the vehicle.

Back-up officers, including Officer Gunter of the K9 unit, arrived within several minutes. Gunter began tracking with his dog approximately thirty minutes after the officers set up the perimeter. The tracking started from the location where the suspect ran from the passenger side of the vehicle and ended with the discovery of the suspect lying on the ground under some bushes. The suspect was holding a gun but appeared to be asleep.

The State moved to have Gunter qualified as an expert in K9 tracking. Gunter testified he was a Senior Master K9 Handler, which is the highest level of K9 handling that can be acquired. Aurie, Gunter's dog, is a German shepherd descended from a working bloodline of known police and military dogs. Gunter stated he trained with Aurie weekly, and they had probably run a total of 750 tracks throughout the dog's career. Yearly, they met the standards to qualify with the American Association of K9 Trainers. Gunter had been with the K9 unit for approximately fourteen years, and Aurie had been with Gunter for eight years, since he was a six-month-old puppy. The dog's training was primarily for tracking lost or missing people, rather than for sniffing for drugs or other contraband.

Gunter confirmed he had been qualified previously as an expert witness in Richland County. He professed that Aurie was very reliable. The trial court found Gunter qualified as an expert in the field of K9 tracking and handling and instructed the jury that Gunter could offer opinions in his areas of expertise. White objected to admission of dog tracking evidence on the ground it did not meet standards set forth in State v. Jones concerning scientific evidence, and it was not reliable, relevant, and helpful to the jury.

The jury found White guilty of the kidnapping and two armed robbery charges. White then moved for a new trial on the ground the dog tracking testimony did not meet the reliability standard required. The court denied the motion, finding Gunter's testimony admissible. White was sentenced to concurrent terms of life imprisonment without parole.

During the pendency of this appeal, witness Anthony Morris issued a written statement retracting his trial testimony. Subsequently, White moved for a new trial or, alternatively, for remand to the trial court for a hearing on newly discovered evidence. This court denied White's motion.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006); State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Wood, 362 S.C. 520, 608 S.E.2d 435 (Ct.App.2004). We are bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000); State v.

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Patterson, 367 S.C. 219, 625 S.E.2d 239 (Ct. App.2006); State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct.App.2004). This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence. Wilson, 345 S.C. at 1, 545 S.E.2d at 827; State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003).

On appeal, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Douglas, 367 S.C. 498, 626 S.E.2d 59 (Ct.App.2006) cert. pending; State v. Walker, 366 S.C. 643, 623 S.E.2d 122 (Ct.App.2005). An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion that is without evidentiary support. Fields v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 609 S.E.2d 506 (2005); Renney v. Dobbs House, Inc., 275 S.C. 562, 274 S.E.2d 290 (1981); see also Simon v. Flowers, 231 S.C. 545, 550, 99 S.E.2d 391, 393-94 (1957) ("`[E]rror at law' exists: (1) when the circuit judge, in issuing [the order], was controlled by some error of law . . . or (2) where the order, based upon factual, as distinguished from legal, considerations, is without adequate evidentiary support."); McSween v. Windham, 77 S.C. 223, 226, 57 S.E. 847, 848 (1907) ("[T]he determination of the court will not be interfered with, unless there is an abuse of discretion, or unless the exercise of discretion was controlled by some error of law."). A trial court's ruling on the admissibility of an expert's testimony constitutes an abuse of discretion when the ruling is manifestly arbitrary, unreasonable, or unfair. Fields, 363 S.C. at 26, 609 S.E.2d at 509; Means v. Gates, 348 S.C. 161, 558 S.E.2d 921 (Ct.App.2001).

LAW/ANALYSIS I. Admission of Expert Testimony

White contends the trial court erred in admitting the State's expert witness testimony about dog tracking without requiring the State to establish the underlying reliability of dog tracking as a scientific or technical field. We disagree.

A. Qualification of Expert Witness

The qualification of an expert witness and the admissibility of the expert's testimony are matters within the trial court's sound discretion. Fields v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 609 S.E.2d 506 (2005); State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990); State v. Douglas, 367 S.C. 498, 626 S.E.2d 59 (Ct.App.2006) cert. pending; State v. Harris, 318 S.C. 178, 456 S.E.2d 433 (Ct.App.1995); see also Prince v. Associated Petroleum Carriers, 262 S.C. 358, 365, 204 S.E.2d 575, 579 (1974) ("Whether a witness has qualified as an expert, and whether his opinion is admissible on a fact in issue, are matters resting largely in the discretion of the trial judge."). The trial court's decision to admit expert testimony will not be reversed on appeal absent an abuse of discretion. State v. Myers, 359 S.C. 40, 596 S.E.2d 488 (2004); Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct.App.2003); State v. Henry, 329 S.C. 266, 495 S.E.2d 463 (Ct. App.1997); see also Jenkins v. E.L. Long Motor Lines, Inc., 233 S.C. 87, 94, 103 S.E.2d 523, 527 (1958) ("It was for the trial [c]ourt to say whether the inquiry was one upon which expert testimony was proper, and its ruling thereon will not be disturbed unless its [sic] appears that there has been an abuse of discretion.").

To warrant reversal based on the admission or exclusion of evidence, the complaining party must prove both the error of the ruling and the resulting prejudice. Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005); Fields, 363 S.C. at 26, 609 S.E.2d at 509; Hanahan v. Simpson, 326 S.C. 140, 485 S.E.2d 903 (1997); Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). To show prejudice, there must be a reasonable probability that the jury's verdict was influenced by the challenged evidence or the lack thereof. Fields, 363 S.C. at 26, 609 S.E.2d at 509.

State v. Council inculcates the Bench and Bar as to the law extant in regard to admission of scientific evidence and expert testimony.

642 S.E.2d 612

335 S.C. 1, 515 S.E.2d 508 (1999). In 1993, the United States Supreme...