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State v. Kinard

Court of Appeals of South Carolina

June 19, 2019

The State, Appellant,
v.
Tony Latrell Kinard, Respondent. Appellate Case No. 2016-001639

          Heard March 12, 2019

          Appeal From Newberry County Donald B. Hocker, Circuit Court Judge

          Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch, Jr., both of Columbia, and Solicitor David Matthew Stumbo, of Greenwood, for Appellant.

          Michael Vincent Laubshire and Richard James Dolce, both of the Laubshire Law Firm, LLC, of Columbia, for Respondent.

          LOCKEMY, C.J.

         The State appeals the dismissal of a driving under the influence (DUI) charge arguing the trial court misinterpreted sections 56-5-2953(A) and (B) of the South Carolina Code (2018). We reverse the dismissal of the DUI charge against Tony Latrell Kinard and remand the case for trial.

         FACTS

         On November 3, 2015, at approximately 6:30 in the evening, Tony Latrell Kinard was involved in a two-car accident in Newberry County. Newberry County Deputy Jesse Snelgrove, whose vehicle was not equipped with a video camera, responded to the scene after the arrival of fire and EMS personnel. Deputy Snelgrove testified that when he arrived at the scene, he observed Kinard yelling at the EMS personnel and at a female he later found out was Kinard's girlfriend. Deputy Snelgrove testified he attempted to calm Kinard. Kinard responded by yelling and cursing at him and staring at him with his fist balled up. Deputy Snelgrove, citing concern about being assaulted, handcuffed Kinard, placed him under arrest for disorderly conduct, and put Kinard in his car. Shortly afterward, Trooper Mickey Barnett with the Highway Patrol arrived at the scene. Prior to his arrival, Trooper Barnett activated his in-car video camera. He parked his patrol car directly behind Deputy Snelgrove's car, which had its blue lights on. Deputy Snelgrove informed Trooper Barnett that Kinard's girlfriend removed bottles of alcohol from Kinard's car. Trooper Barnett testified he observed Kinard in the backseat of Deputy Snelgrove's car staring straight ahead and Kinard refused to speak to him. Trooper Barnett placed Kinard under arrest for driving under the influence, citing his demeanor and the fact he "smelled of alcohol." Trooper Barnett's video camera recorded the scene. From the video, Trooper Barnett can be heard Mirandizing Kinard, but because Kinard is inside of Deputy Snelgrove's car and he does not verbally respond to Trooper Barnett, Kinard is neither seen nor heard on the video.

         Kinard's trial was set to begin on June 8, 2016, in Newberry County. Just prior to trial, Kinard made a motion to dismiss the DUI charge arguing the video failed to meet the requirements of section 56-5-2953 of the South Carolina Code (2018). The trial court heard the testimony of Deputy Snelgrove and Trooper Barnett, viewed the video of Kinard's arrest, and heard arguments from both Kinard and the State. The trial court granted Kinard's motion on the record and prepared a written order to that effect dated July 25, 2016. The State filed a motion to reconsider on June 9, 2016. The trial court held a hearing on the State's motion to reconsider on July 25, 2016, and in an order issued the same day, the trial court denied the State's motion. This appeal followed.

         STANDARD OF REVIEW

         "In criminal cases, the appellate court sits to review errors of law only and is bound by the trial court's factual findings unless they are clearly erroneous. Thus, on review, the appellate court is limited to determining whether the trial judge abused his discretion." State v. Garris, 394 S.C. 336, 344, 714 S.E.2d 888, 893 (Ct. App. 2011) (citations omitted). "An abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law." Id. (citations omitted).

         LAW/ANALYSIS

         A. Section 56-5-2953(A)

         The State first argues the trial court erred in dismissing the DUI charge due to its misinterpretation of section 56-5-2953(A) of the South ...


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