In The Court of Appeals

The State,        Respondent,


Raymond Gene Killian,        Appellant.

Appeal From Lancaster County
Costa M. Pleicones, Circuit Court Judge
Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2003-UP-023
Submitted October 22, 2002 – Filed January 8, 2003


Tara Dawn Shurling, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor John R. Justice, of Chester, for respondent.

PER CURIAM:          Affirmed pursuant to Rule 220(b)(2), SCACR, and the following authorities:  As to Issue I:  State v. Needs, 333 S.C. 134, 157-58, 508 S.E.2d 857, 869 (1998) (stating a motion for a new trial based on after-acquired evidence is addressed to the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion); State v. Spann, 334 S.C. 618, 619-20, 513 S.E.2d 98, 99 (1999) (stating to prevail in a motion for a new trial based on after-acquired evidence, an appellant must show the evidence:  (1) would change the result if the new trial were granted; (2) was discovered following the trial; (3) could not, in the exercise of due diligence, have been discovered prior to trial; (4) is material; and (5) is not merely cumulative or impeaching); State v. Deese, 266 S.C. 534, 538, 225 S.E.2d 175, 176 (1976) (stating when testimony is in conflict and depends on the credibility of the new evidence, it is the duty of the trial judge to assess the evidence); State v. Parker, 249 S.C. 139, 141, 153 S.E.2d 183, 184 (1967) (stating the credibility of the newly-discovered evidence is a matter for the determination of the trial judge and his judgment will not be disturbed absent an error of law or an abuse of discretion).

As to Issue II:  State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001) (“The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion.”); Rule 401, SCRE (stating evidence is relevant if it has “any tendency to make, the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”); Rule 403, SCRE (stating relevant evidence may be excluded if the danger of unfair prejudice to the defendant outweighs the probative value of the State’s case); State v. Ford, 334 S.C. 444, 453, 513 S.E.2d 385, 389 (Ct. App. 1999) (stating unfair prejudice refers to evidence tending to suggest decision on an improper basis, not the damage to a defendant’s case resulting from the legitimate probative force of the evidence); State v. Hamilton, 344 S.C. 344, 357, 543 S.E.2d 586, 594 (Ct. App. 2001) (quoting United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989)) (“A trial court’s decision regarding the comparative probative value versus prejudicial effect of evidence should be reversed only in ‘exceptional circumstances.’”); First Savings Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (stating when an “[a]ppellant fails to provide arguments or supporting authority for his assertion,” the issue is deemed to be abandoned on appeal).



[1] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.