November 10, 2015
Withdrawn, Substituted and Refiled May 25, 2016
From Williamsburg County John C. Hayes, III, Circuit Court
Judge Opinion No. 5381
Raina Johnson Keefer, of Keefer & Keefer, LLC, Joshua
Preston Stokes, of McCoy & Stokes, LLC, and Adam Owensby,
of Carolina Firm, LLC, all of Charleston, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Deputy
Attorney General David A. Spencer, both of Columbia, and
Ernest Adolphus Finney, III, of Sumter, for Respondent.
McBride appeals his conviction for first-degree criminal
sexual conduct with a minor, arguing the following: (1) the
trial court lacked subject matter jurisdiction over McBride
because he was a juvenile; (2) numerous evidentiary and jury
charge issues; (3) the evidence presented was insufficient to
prove the required elements of the crime; and (4) the trial
court erred in excluding only a portion of McBride's
statement. We affirm.
victim testified that on June 21, 2010, she was
attending summer school. When she arrived home on the school
bus, her mother was not there. The victim went to her
aunt's house next door. The victim testified her cousin,
McBride, was home alone and let her in. The victim sat on the
couch while McBride went into the kitchen. When McBride
returned, the victim asked him to turn the television off.
The victim testified McBride turned the television off, then
"took out his manhood. And then he told [me] to jerk it.
And he grabbed my hand, and put my hand on his manhood. And I
jerk it away from him. And then that's when he is going
to grab my head, and pull it down to make me put my mouth on
it." The victim next testified she pushed McBride away
from her, "[a]nd that's when the white stuff and
clear stuff came out of his manhood. It was in my mouth and
on my shirt. And I ran in the bathroom." The victim spit
into the sink, wiped her shirt with tissue, and threw the
tissue away. The victim testified she was wearing a black
shirt and her "birthday pants that [her] grandmother
gave [her]." According to the victim, when she returned
to the living room, McBride was spraying the room with
"man's perfume." The victim testified she ran
to the front door, was blocked by McBride, ran to the back
door, and went home.
victim's mother was home by then and opened the door when
the victim knocked. The victim originally denied anything was
wrong. The mother smelled the "man's perfume"
on the victim and saw a deodorant stain on the victim's
shirt. According to the victim, she had deodorant on the back
of her shirt from where McBride had his arm around her neck
when he forced her to touch him. The victim testified she
spoke to Detective Wilma Trena Hamlet of the Kingstree Police
Department and two other officers within ten to fifteen
minutes of returning home.
testified minor inconsistencies between the victim's
first and second statements included which door she ran out
of when exiting McBride's house. Hamlet also admitted
that no deodorant was collected from McBride.
victim's mother testified that on the day in question,
when she arrived home, the victim was not there, but she
arrived shortly thereafter. As the victim passed her in the
entryway, the mother smelled men's cologne and saw the
stain on the victim's shirt. After questioning the
victim, the mother went next door and questioned McBride. She
returned home and called her husband, her sister (the
sister), and McBride's mother. The sister eventually
called the police.
sister testified she arrived at the victim's house after
receiving the telephone call and confronted McBride after the
victim told her what happened. According to the sister,
McBride said he did not mean to do it, and "tr[ied] to
compromise with [her]." The sister described it as
close of the evidence, McBride moved for a directed verdict,
arguing there was no testimony of penetration of the
victim's mouth. The court reporter replayed the testimony
of the victim's cross-examination, and the trial court
denied the motion, finding direct and circumstantial
evidence. The jury convicted McBride of first degree criminal
sexual conduct. This appeal follows.
criminal cases, this court reviews errors of law only and is
bound by the trial court's factual findings unless they
are clearly erroneous. State v. Edwards, 384 S.C.
504, 508, 682 S.E.2d 820, 822 (2009). Thus, on review, the
court is limited to determining whether the trial court
abused its discretion. Id. An abuse of discretion
occurs when the court's decision is unsupported by the
evidence or controlled by an error of law. State v.
Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012).
"This [c]ourt does not re-evaluate the facts based on
its own view of the preponderance of the evidence but simply
determines whether the trial court's ruling is supported
by any evidence." Edwards, 384 S.C. at 508, 682
S.E.2d at 822.
Subject Matter Jurisdiction
argues the circuit court lacked subject matter jurisdiction
to hear the case because he was sixteen at the time of the
alleged crime and the case was not properly transferred to
the court of general sessions. We disagree.
State argues this issue is not preserved for our review and
is a matter of personal jurisdiction, not subject matter
jurisdiction. We agree. This issue was not raised to the
trial court; thus, unless it involves subject matter
jurisdiction, it must have been raised to and ruled upon by
the trial court to be preserved for appellate review. See
State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693
(2003) (stating an issue must be both raised to and ruled
upon by the trial court in order to be preserved for
appellate review); Ex parte Cannon, 385 S.C. 643,
654, 685 S.E.2d 814, 820 (Ct. App. 2009) ("Lack of
subject matter jurisdiction can be raised at any time, even
for the first time on appeal, by a party or by the
court."). Because the circuit court has the power to
hear criminal cases, we find the issue was not one of subject
matter jurisdiction. See State v. Gentry, 363 S.C.
93, 100, 610 S.E.2d 494, 498 (2005) (explaining issues
relating to subject matter jurisdiction may be raised at any
time and clarifying a court's subject matter jurisdiction
is that court's power "to hear and determine cases
of the general class to which the proceedings in question
belong"). Thus, McBride has not preserved the issue for
Evidentiary Rulings and Jury Charges
argues numerous evidentiary and jury charge errors relating
to the loss of the victim's clothing by the investigating
police department, the admission of photographs, and the
limitation of his cross-examination regarding the
Department's investigation of the victim. We find no
The Victim's Shirt
argues the trial court erred in limiting his ability to
cross-examine witnesses regarding the victim's shirt,
which law enforcement lost. Further, McBride maintains his
due process rights were violated by the loss of the
victim's shirt. McBride also argues the trial court erred