THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

Quinton Lawrence Tobbie a/k/a Quentin Lawrence Tobbie, Appellant.

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2012-UP-039
Submitted November 1, 2011 – Filed January 25, 2012

AFFIRMED

Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor Kevin S. Brackett, of York, for Respondent.

PER CURIAM: Quinton Lawrence Tobbie appeals his conviction for accessory after the fact, arguing the circuit court erred in (1) admitting two eyewitnesses' in-court identifications resulting from unduly suggestive confrontation procedures and (2) denying his motion for a directed verdict when no evidence was presented he was an accessory after the fact in York County. We affirm.[1]

1. "The admission or exclusion of evidence is left to the sound discretion of the [circuit] court, and the court's decision will not be reversed absent an abuse of discretion." State v. Liverman, 386 S.C. 223, 233, 687 S.E.2d 70, 75 (Ct. App. 2009) (citation omitted). "An abuse of discretion occurs when the decision of the [circuit] court is based upon an error of law or upon factual findings that are without evidentiary support." Id. (citation omitted). "[W]hether an eyewitness identification is sufficiently reliable is a mixed question of law and fact." State v. Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000). "In reviewing mixed questions of law and fact, where the evidence supports but one reasonable inference, the question becomes a matter of law for the court." Id. (citation omitted).

When assessing the admissibility of an eyewitness identification, "the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.'" Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). An unduly or unnecessarily suggestive procedure may deprive a defendant of due process of law. State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693, 696 (2007) (citation omitted). However, "the admission of evidence of [an unnecessarily suggestive procedure] without more does not violate due process." Biggers, 409 U.S. at 198.

Accordingly, a court must apply a two-prong test. Moore, 343 S.C. at 287, 540 S.E.2d at 447. First, it must determine whether the confrontation procedure used by the police was unduly suggestive. Id. Only if the procedure was unduly suggestive must a court focus on the second prong: whether "'under [the totality of] the circumstances the identification was reliable notwithstanding any suggestive procedure.'" Id. at 287, S.E.2d at 447-48 (citation omitted). Factors to consider in "evaluating the likelihood of a misidentification" include the following:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of the witness'[s] prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199-200; see also Turner, 373 S.C. at 127, 644 S.E.2d at 696-97.

Here, the circuit court admitted two in-court eyewitness identifications of Tobbie after finding the confrontation procedures, both one-man show-ups, were unduly suggestive. We find the first identification, made by a convenience store employee, to be sufficiently reliable under the Biggers analysis. Initially, we note Tobbie's statement to law enforcement that he was present during the crime shows an absence of prejudice and unlikelihood of misidentification. Regardless, the employee, first, had the opportunity to observe Tobbie on two occasions: as he entered the store and as he was getting into the backseat of a car. The employee testified she got a good look at Tobbie at the well-lit gas station as she checked the trashcans outside. Specifically, she testified she was suspicious of Tobbie and his codefendant because his codefendant would not make eye contact with her. Second, she claimed she was "99 percent sure" Tobbie was at the gas station with his codefendant when she identified him "a little while" later. Finally, her testimony of the suspect's features observed by her at the gas station were consistent with Tobbie's despite the fact he was wearing a different shirt when he was apprehended.

Furthermore, we find the issue as to the reliability of the second identification, made by the victim's friend, unpreserved because of Tobbie's failure to make a contemporaneous objection. See State v. Burton, 326 S.C. 605, 609, 486 S.E.2d 762, 764 (Ct. App. 1997).

2. An appellate court reviews the denial of a directed verdict by viewing the evidence and all reasonable inferences in the light most favorable to the State. State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). "If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, [an appellate court] must find the case was properly submitted to the jury." Id. at 292-93, 625 S.E.2d at 648. The circuit court may not consider the weight of the evidence. Id. at 292, 625 S.E.2d at 648. Additionally, a motion for a directed verdict must be granted if the State fails to present evidence venue was proper. State v. Evans, 307 S.C. 477, 480, 415 S.E.2d 816, 818 (1992) ("[A] criminal defendant is entitled to a directed verdict when the State fails to present evidence that the offense was committed in the county alleged in the indictment.") (citing State v. McCoy, 98 S.C. 133, 82 S.E. 280 (1914))), overruled in part by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005).

Here, the State presented evidence the principal felonies, attempted armed robbery and assault and battery with intent to kill, were committed in York County. Because an accessory after the fact may be indicted and tried in the county where the principal felony was committed, we find the circuit court did not err in submitting the charge to the jury. S.C. Code Ann. § 17-21-60 (2003).

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.