State v. Atieh

725 S.E.2d 730, 397 S.C. 641, 2012 WL 1416418, 2012 S.C. App. LEXIS 108
CourtCourt of Appeals of South Carolina
DecidedApril 25, 2012
DocketNo. 4966
StatusPublished
Cited by21 cases

This text of 725 S.E.2d 730 (State v. Atieh) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Atieh, 725 S.E.2d 730, 397 S.C. 641, 2012 WL 1416418, 2012 S.C. App. LEXIS 108 (S.C. Ct. App. 2012).

Opinion

KONDUROS, J.

Mahammed Ahamad Atieh1 appeals his conviction for assault and battery of a high and aggravated nature (ABHAN) and assault with intent to commit third-degree criminal sexual conduct (CSC). We affirm in part and reverse in part.

FACTS/PROCEDURAL HISTORY

Mahammed Ahamad Atieh owned two Subway stores in Easley, South Carolina. One of his employees (Victim) reported to the police that Atieh had touched her inappropriately on several occasions. A Pickens County grand jury indicted Atieh for ABHAN and assault with intent to commit third-degree CSC. During pretrial motions, Atieh moved to suppress the testimonies of four former employees concerning allegations of past inappropriate touching. He argued the testimonies involved prior bad acts and were inadmissible under Rule 404(b), SCRE. Atieh further argued the testimonies would have a prejudicial effect while offering no probative value.

In considering Atieh’s motion to suppress, the court heard in camera testimony from Victim and the former employees. Victim testified Atieh had touched and squeezed her rear end, put his hand down her shirt, pressed against her when she was washing dishes and in the restaurant’s cooler, and that he had put his hand inside the waistband of her pants. The first former employee (Employee 1) testified Atieh pressed against her in the cooler and while she washed dishes and would try to put his hand down her shirt. The second former employee [645]*645(Employee 2) stated Atieh put his hands up her shirt near the cooler area. The third former employee (Employee 3) testified Atieh touched her rear end and placed his hand on her back, and she observed him press against another female employee as the employee washed dishes. The fourth former employee (Employee 4) testified of past inappropriate touching. She indicated Atieh had pressed against her while she washed dishes and in the cooler, put his hand down her shirt, and put his hand inside the waistband of her pants. The trial court found the testimonies relevant under Rule 404(b), SCRE, and noted the similarities in each witness’s testimony as indicative of a common scheme or plan. The trial court also found the probative value of the former employees’ testimonies substantially outweighed the prejudicial effect and ruled the testimonies admissible.

When the trial began, the State called Victim as its first witness. After Victim testified, the State began calling each of the four former employees to testify. Atieh did not make any contemporaneous objections to the testimony of the first three former employees. However, prior to Employee 4 being called, Atieh renewed his objection to her testimony, arguing it went beyond common scheme or plan and beyond what Victim alleged Atieh had done. The trial court ruled Employee 4’s testimony admissible; however, it limited her testimony to events that fell within the common scheme or plan, and the trial court prohibited her from speculating on what Atieh’s intent might have been regarding putting his hand in her pants. After the trial court ruled, Atieh renewed his objection to Employee 4’s entire testimony being admitted.

After the State rested, Atieh moved for a directed verdict on the charge of assault with intent to commit third-degree CSC. He argued no testimony was introduced showing Atieh attempted a sexual battery because, under the statute, that offense requires an attempt to penetrate the victim’s body. Atieh emphasized the fact that Victim testified Atieh’s hand did not come near her vaginal area when he put his hand inside her waistband. The trial court denied the motion, finding the State presented “substantial circumstantial evidence which reasonably could tend to prove guilt, or from which guilt could be fairly and logically deduced ... [and that it was] a jury question as to what the intent was.” Atieh then [646]*646asked the trial court, “Judge, for the record, could I ask for a ruling on what evidence with any weight at all the court is saying there’s some evidence that the jury could find?” The trial court stated, “The evidence for the intent is what is on the record of what’s been testified to by [Victim].” The motion was again denied.

At the close of Atieh’s case, he renewed his motion for a directed verdict on the charge of assault with intent to commit third-degree CSC. The trial court denied the motion. During the charge conference, the trial court indicated it would “charge that evidence of other bad acts is only to be used for ... the sole issue of credibility not any proof of guilt____It’d only be, if they considered it at all, it would be common scheme and plan or intent or absence of mistake.” Atieh did not object. After the trial court gave the jury charge, it inquired whether either attorney had any exceptions to it. Atieh stated, “No objections to the charge, Judge.”

Ultimately, the jury convicted Atieh of ABHAN and assault with intent to commit third-degree CSC. The trial court sentenced Atieh to ten years’ imprisonment suspended to forty-four months’ imprisonment and four years of probation for each charge, to be served concurrently. This appeal followed.

LAW/ANALYSIS

I. Prior Bad Acts

Atieh contends the trial court committed reversible error in allowing testimony from four former employees alleging prior bad acts. He further argues the prejudice of this prior bad act evidence is so pervasive it requires a reversal on both convictions. We disagree.

A ruling in limine is not final; unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review. See State v. Wannamaker, 346 S.C. 495, 499, 552 S.E.2d 284, 286 (2001). An exception to this rule is when the motion in limine is made “immediately prior to the introduction of the evidence in question.” State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001). The South Carolina Supreme Court expanded [647]*647this exception in State v. Wiles, holding that even when the evidence does not immediately follow the motion in limine, if the trial court clearly indicates its ruling is final, rather than preliminary, the issue is preserved for appellate review. 383 S.C. 151, 157, 679 S.E.2d 172, 175 (2009). In Wiles, the trial court had commented to the jury about the evidence that was the subject of the motion in limine before any evidence was admitted. Id.

Any issue regarding the first three former employees’ testimonies is unpreserved. The exception in Forrester regarding motions in limine is not applicable in this case because the former employees were not called as witnesses immediately after the motion in limine. As to the exception in Wiles, nothing in the record indicates the trial court commented to the jury the State would present testimony by former employees. Furthermore, the preliminary nature of the motion in limine allowed the trial court to adjust its ruling in accordance with developments in the trial. Specifically, when Employee 4 was called, the trial court heard Atieh’s objection and limited her testimony, thereby demonstrating the trial court’s flexibility with the earlier ruling. As to the testimony of Employee 4, Atieh made a contemporaneous objection when she was called to testify before the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
725 S.E.2d 730, 397 S.C. 641, 2012 WL 1416418, 2012 S.C. App. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-atieh-scctapp-2012.