In The Court of Appeals

The State,        Respondent,


Howard B. Johnson,        Appellant.

Appeal From Fairfield County
Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2003-UP-707
Submitted September 17, 2003 – Filed December 9, 2003


Assistant Appellate Defender Eleanor Duffy Cleary, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney Charles H. Richardson, all of Columbia;  and Solicitor John R. Justice, of Chester, for Respondent.

PER CURIAM: Appellant appeals his conviction on an assault and battery with intent to kill charge, arguing that the trial court erred in allowing testimony that marijuana was found on Appellant the night of his arrest. We affirm


Defendant Johnson was involved in an altercation with two or three persons at the Winnsboro Motor Inn where he was staying. During the fight, Johnson used a box cutter and cut the face of one of his opponents. A jury convicted Johnson on a charge of assault and battery with intent to kill. The judge gave him a six-year sentence.

Johnson maintains that the victim and two other persons accosted him in an attempted robbery and that he used the box cutter in self-defense. He maintains that he just happened to be carrying the box cutter because he was returning from work. Johnson also contends that at least one of the would-be robbers was carrying a knife. However, the victim testified that Johnson started the altercation by calling her “bitch.” There was additional testimony that Johnson first argued with the group, then went back to his room, presumably to get the box cutter, and returned to continue the argument. On direct examination, Johnson admitted that he had been in “trouble with the law,” but insisted that nothing had happened in the last twenty years. He also denied being involved with drugs.


Did the trial court err by allowing testimony that a small amount of marijuana was found on Johnson on the night of his arrest where the evidence did not tend to show motive, intent, the absence of mistake or accident, a common scheme or plan, or the identity of the perpetrator, and where the defendant did not open the door?

Pro se Issues:

(1) Did the trial court err by admitting the impeachment evidence against Johnson where Johnson did not receive sufficient advance notice, as required by Rule 609(b), SCRE?
(2) Did the trial court err by allowing the state to impeach Johnson using criminal conviction dating back more than ten years?
(3) Did the trial court err by allowing the evidence concerning the 1997 incident since that evidence was prejudicial toward Johnson?


“Evidence of prior crimes or misconduct is inadmissible to prove the specific crime charged unless the evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the proof of the other; or (5) the identity of the person charged with the present crime.” State v. Tutton, 354 S.C. 316, 325, 580 S.E.2d 186, 189 (Ct. App. 2003) (citing State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923); Rule 404(b)). However, when a defendant testifies on an issue, he opens the door for the admission of contrary evidence on that issue. See State v. Dunlap, 353 S.C. 539, 541, 579 S.E.2d 318, 319 (2003) (finding that where defense ‘opened the door’ by claiming that the defendant had no connection to the sale of drugs, the state was entitled to rebut that claim by delving into the defendant’s drug record).

Here Johnson testified, “mostly people staying in the front was working people. Most of the people staying in the back was drug addicts.” The trial judge ruled that Johnson opened the door by attempting to create the impression that he was not involved with drugs because he lived in the front, unlike his victim who lived in the back. Therefore, the admission of the drug found on Johnson was not error. Counsel’s petition to be relieved is granted.

Pro se Issues.

The three issues that Johnson raises on appeal were not preserved during the trial and therefore the Court cannot address them. See Humbert v. State, 345 S.C. 332, 548 S.E.2d 862 (2001) (ruling that issues not raised and ruled upon in the trial court will not be considered on appeal); State v. Bryam, 326 S.C. 107, 485 S.E.2d 360 (1997) (holding that this principle applies even if the arguments advanced are constitutional); State v. Burton, 326 S.C. 605, 486 S.E.2d 762 (Ct. App. 1997) (explaining that the failure to object at the time the evidence is offered constitutes a waiver of the right to have the issue considered on appeal).


Huff, Stilwell, and Beatty, JJ., concur.