                       THE STATE OF SOUTH CAROLINA
                           In The Court of Appeals

             The State, Respondent.

             v.

             Rickey Santoine Henley, Appellant.

             Appellate Case No. 2016-000844



                           Appeal From Abbeville County
                      Eugene C. Griffith, Jr., Circuit Court Judge


                                  Opinion No. 5694
                  Heard February 12, 2019 – Filed December 11, 2019


                                     AFFIRMED


             Appellate Defender Susan Barber Hackett, of Columbia,
             for Appellant.

             Attorney General Alan McCrory Wilson, Senior
             Assistant Deputy Attorney General William M. Blitch,
             Jr., and Assistant Attorney General Vann Henry Gunter,
             Jr., of Columbia, and Solicitor David Matthew Stumbo,
             of Greenwood, all for Respondent.


MCDONALD, J.: Rickey Santoine Henley appeals his first degree burglary
conviction, arguing the circuit court erred by (1) finding his prior larceny acquittal
did not bar his retrial for burglary; (2) excluding evidence of the prior larceny
acquittal; (3) limiting the admission of a witness's prior trial testimony; and (4)
admitting evidence of DNA testing conducted on a cigarette butt found at the crime
scene. We affirm.
Facts and Procedural History

On the morning of February 15, 2012, Richard Culbreth drove past the Abbeville
County home of Amanda Moss (Victim) and her husband Jamie Moss (Husband)
while on the way to visit his mother.1 Culbreth saw a gray car backed into Victim's
carport with the back door open and a black male running from the home's front
door to a side door. As Culbreth found this unusual, he turned around and drove
back to Victim's house, where he observed the same man standing in the doorway.

After spotting Culbreth, the alleged intruder got into his car, pulled out of Victim's
driveway, stopped in front of Culbreth's pickup truck—which was pulling a trailer
with a lawn mower—and asked him if he needed any help with lawn care.
Culbreth replied he did not need any help, and the man drove away, merging onto
Highway 28 North toward Anderson County. Culbreth called 911 and described
the car as a dirty, gray, late 1980s or 1990s model Pontiac with the license plate
number "HSN 454." Culbreth described the man as having facial hair and testified,
"I just remember he had a bandana tied tightly around his head. It went down the
back of his neck. Light-skinned from what I could tell. But I do not remember
any, you know, marks, facial scars, or anything."

Deputy Patrick Thompson, a detective in the Abbeville County Sheriff's Office
(ACSO) property crimes division, responded to Victim's home. While processing
the scene, Deputy Thompson noticed a footwear impression on the carpet.
Officers recovered a cigarette butt from the intruder's point of entry, which they
collected and placed into evidence.2 The sole item missing from Victim's home
was a Dell laptop computer, valued at five hundred dollars, which Victim reported
had been on a bench just inside the carport door.3

1
 Culbreth works as the caretaker for Long Cane Cemetery on Beltline Road in
Abbeville. He testified he knew Victim through her former employer, Harris
Funeral Home.
2
 The DNA profile developed from the cigarette butt matched Henley's DNA
profile. Trial testimony established the probability of randomly selecting an
unrelated individual with a DNA profile matching the cigarette butt was 1 in 1.5
billion.
3
    Victim's laptop was never recovered.
At trial, Victim identified photographs of the side carport door, which was partially
broken off its hinge and appeared to have been tampered with; the doorframe was
also damaged. Victim testified a cigarette butt found near her steps did not belong
to her or Husband as neither smoked, and the cigarette was not there when she left
the home that morning. Victim noted she normally locked the door to the house
when she left. Likewise, Husband testified the door was locked and there was no
cigarette butt on the steps when he left the house.

Deputy Thompson used Culbreath's description and tag number to search for the
suspect vehicle on the South Carolina Law Enforcement Division (SLED) vehicle
database. The search revealed a 1997 Pontiac Bonneville owned by Henley and
his then girlfriend, Jolene Gray, bearing the license plate number "HSN 544."
Based on information he received from the Department of Motor Vehicles, Deputy
Thompson went to Henley's Anderson County residence on February 22, 2012.
Parked outside, he saw a Pontiac Bonneville matching the description provided by
Culbreath with the license plate "HSN 544".

Henley was at the residence and spoke with law enforcement. He admitted he had
recently been in Abbeville and acknowledged he had been on Highway 28. Henley
recalled speaking to someone in a pickup truck and admitted he smoked Newport
cigarettes. Deputy Thompson noticed Henley was wearing boots, the soles of
which resembled the impression left on Victim's carpet. Henley was arrested for
first degree burglary and larceny on February 23, 2012.4

According to Gray, five police officers came to her house a second time when
Henley was not there. She stated she saw the officers walking around, and one
officer picked something up off of the ground. Regarding Henley's location on the
day of the burglary, Gray claimed Henley left their Anderson County apartment
between 8:00 a.m. and 9:00 a.m. to go to his mother's house in Beech Island.5
Gray confirmed Henley owned a pair of boots and smoked Newport cigarettes.

Henley's mother, Ella Johnson, stated that on February 15, 2012, Henley arrived at
her home at approximately 10:00 a.m. with leftover shrimp and lobster from his


4
 Henley has two prior burglary convictions from December 7, 2006, and March
15, 2002.
5
    Beech Island is an unincorporated community in Aiken County.
Valentine's Day dinner with Gray. Johnson testified she and Henley went to Moe's
Convenience Store at approximately 2:00 p.m.

Henley's first jury trial began April 8, 2015. Following an Allen charge, the jury
returned a verdict of not guilty on the larceny charge connected with the burglary
at Victim's home. However, the jury hung on the first degree burglary charge, and
the circuit court declared a mistrial on April 9, 2015. After the circuit court's
denial of Henley's motion to preclude retrial under the Double Jeopardy Clause of
the Fifth Amendment, Henley was retried on the burglary charge. The jury found
Henley guilty of first degree burglary, and the circuit court sentenced him to
twenty-four years' imprisonment.

Law and Analysis

I. Double Jeopardy

Henley argues the circuit court erred by denying his motion to quash the burglary
indictment on double jeopardy grounds because (1) it failed to apply the proper test
of Yeager v. United States, 557 U.S. 110 (2009), and (2) his prior acquittal on the
larceny charge relating to the Dell computer necessarily determined he was "not
guilty" of burglary as the sole item missing following the burglary was the Dell
laptop. We disagree.

At Henley's first trial, the jury acquitted Henley of the larceny of Victim's Dell
computer but was unable to reach a unanimous verdict on the first degree burglary
charge. Prior to the start of his second trial, Henley moved to quash the burglary
indictment, arguing any retrial would violate both the federal and state Double
Jeopardy Clauses. Following a pretrial hearing, the circuit court concluded:

            Here's what I think. I understand your argument. I think
            it's a directed verdict to fact [sic] question as to whether
            they conclude and get past directed verdict stage. With
            the intent to commit a crime therein is one of the
            elements of burglary first and second and third. The
            State's got that burden of proving with the intent to
            commit a crime. I don't believe the acquittal of the
            larceny precludes them from presenting facts which the
            jury could prove intent to commit a crime therein. They
            have not had that opportunity yet. So I think your motion
            should be denied right now, but I feel confident you will
             most likely renew it at the directed verdict stage in a
             similar-worded argument if the State's failed to prove
             anything beyond a suggestion of intent to commit a crime
             therein. So I don't believe jeopardy attaches to the
             [burglary] charge since it's not a specific crime. The
             indictment does not get quashed at this point, but the
             Court will be listening.

The Double Jeopardy Clauses of the United States and South Carolina
Constitutions protect citizens from being subjected to repetitive conclusive
prosecutions and multiple punishments for the same offense. U.S. Const. amend.
V ("[N]or shall any person be subject for the same offence to be twice put in
jeopardy of life or limb. . . ."); S.C. Const, art. I, C ("No person shall be subject for
the same offense to be twice put in jeopardy of life or liberty . . . ."). "In
interpreting the Double Jeopardy clause, [our supreme court] has stated that '[t]he
Double Jeopardy Clause protects against a second prosecution for the same offense
after acquittal or conviction, and protects against multiple punishments for the
same offense.'" State v. Brandt, 393 S.C. 526, 538, 713 S.E.2d 591, 597 (2011)
(quoting Stevenson v. State, 335 S.C. 193, 198, 516 S.E.2d 434, 436 (1999)).
However, "[a] defendant may be severally indicted and punished for separate
offenses without being placed in double jeopardy where a single act consists of two
'distinct' offenses." Id. (quoting State v. Moyd, 321 S.C. 256, 258, 468 S.E.2d 7, 9
(Ct. App. 1996)).

The doctrine of issue preclusion is embodied in the Fifth Amendment's Double
Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 445–46 (1970). Issue preclusion
means that "when an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the same parties in any
future lawsuit." Id. at 443. In Ashe, the United States Supreme Court explained
that "'collateral estoppel' is an awkward phrase, but it stands for an extremely
important principle in our adversary system of justice." Id. at 443. In emphasizing
the rule of collateral estoppel in criminal cases should be applied with "realism and
rationality," the Court advised:

             Where a previous judgment of acquittal was based upon a
             general verdict, as is usually the case, this approach
             requires a court to "examine the record of a prior
             proceeding, taking into account the pleadings, evidence,
             charge, and other relevant matter, and conclude whether
             a rational jury could have grounded its verdict upon an
             issue other than that which the defendant seeks to
             foreclose from consideration."

Id. at 444. Ashe is not dispositive here as the issue determined there was "simply
whether, after a jury determined by its verdict that the petitioner was not one of the
robbers, the State could constitutionally hale him before a new jury to litigate that
issue again." Id. at 446.

Yeager v. United States, 557 U.S. 110, 113 (2009), which involved charges of
securities fraud and insider trading, is more helpful to our analysis. There, the
Supreme Court examined an issue preclusion challenge involving an attempted
retrial after the jury acquitted the defendant on the securities fraud counts but could
not reach a verdict on his insider trading charges. Id. at 115. When the
prosecution subsequently sought to retry the defendant on the insider trading
counts, the defendant moved to dismiss, arguing the acquittals on securities fraud
precluded his retrial for insider trading. Id. The district court denied the motion,
concluding the question of whether the defendant possessed insider information
was not necessarily resolved in the first trial. Id. at 116–17. Although Yeager is
distinguishable from Ashe in that Yeager involved an acquittal on some counts and
a hung jury on others, the Supreme Court explained "the reasoning in Ashe is
nevertheless controlling because, for double jeopardy purposes, the jury's inability
to reach a verdict on the insider trading counts was a nonevent and the acquittals
on the fraud counts are entitled to the same effect as Ashe's acquittal." Id. at 120.
The Supreme Court subsequently found, "if the possession of insider information
was a critical issue of ultimate fact in all of the charges against petitioner, a jury
verdict that necessarily decided that issue in his favor protects him from
prosecution for any charge for which that is an essential element." Id. at 123.

Here, Henley's acquittal for larceny—the taking of the Dell computer—is not
dispositive of whether the State could satisfy the elements necessary for a first
degree burglary conviction. In Yeager, there could be no insider trading if, as
found by the jury, there had been no fraud. But an acquittal for larceny does not
foreclose any element necessary for a first degree burglary conviction. See S.C.
Code Ann. § 16-13-30(A) ("Simple larceny of any article of goods, choses in
action, bank bills, bills receivable, chattels, or other article of personalty of which
by law larceny may be committed, or of any fixture, part, or product of the soil
severed from the soil by an unlawful act, or has a value of two thousand dollars or
less, is petit larceny, a misdemeanor, triable in the magistrates court or municipal
court. . . ."); S.C. Code Ann. § 16-11-311(A) ("A person is guilty of burglary in the
first degree if the person enters a dwelling without consent and with intent to
commit a crime in the dwelling, and either: (1) . . . ; or (2) the burglary is
committed by a person with a prior record of two or more convictions for burglary
or housebreaking or a combination of both; or (3) . . . ." ). While larceny is defined
as "the felonious taking and carrying away of the goods of another against the
owner's will or without his consent," State v. Moore, 374 S.C. 468, 477, 649 S.E.2d
84, 88 (Ct. App. 2007), burglary merely requires that "the person enters a dwelling
without consent and with intent to commit a crime in the dwelling." S.C. Code
Ann. § 16-11-311(A) (emphasis added). Each of the offenses requires proof of
different critical elements. See Blockburger v. United States, 284 U.S. 299, 304,
(1932) ("The applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.").

Additionally, we agree with the State that the jury's "not guilty" verdict was not
necessarily a finding that Henley was not the individual who entered Victim's
home without consent and with intent to commit a crime therein; rather, the prior
jury found only that the State failed to prove beyond a reasonable doubt that
Henley took the Dell computer. Henley's acquittal on the larceny charge did not
preclude the State from presenting facts—that Henley's car was backed into
Victim's carport with the back door open, Culbreth witnessed Henley standing in
the doorway of Victim's home, and Victim's door and doorframe were damaged—
as proof of the first degree burglary charge.

In State v. Mitchell, 399 S.C. 410, 422, 731 S.E.2d 889, 896 (Ct. App. 2012), the
defendant sought relief from his conviction for burglary in the first degree,
contending the intent to steal element could not be proven since the jury found
Mitchell not guilty of petit larceny. This court noted Mitchell seemed to be
referencing the "inconsistent verdict theory" and stated:

             Mitchell was charged and convicted of first-degree
             burglary, pursuant to section 16-11-311(A) of the South
             Carolina Code (2003). The pertinent portion of the
             statute states: "A person is guilty of burglary in the first
             degree if the person enters a dwelling without consent
             and with intent to commit a crime in the dwelling . . . ."
             S.C. Code Ann. § 16-11-311(A)(2003) (emphasis added).
             Mitchell was identified from photographs on the deer
             camera in Potts's home. Potts testified that he did not
             recognize the person in the photographs and had not
             given permission for that person to be in his home.
             There was testimony Mitchell held a bag and a flashlight
             in one of the photographs, and the photograph was
             admitted into evidence. A jury could have inferred that
             Mitchell intended to commit a crime while in Potts's
             home, and due to a multitude of scenarios, was unable or
             decided not to carry out the intended crime.

Id. at 422–23. Like the defendant in Mitchell, Henley conflates the intent to
commit a crime with the successful commission of the crime. Although the jury in
Henley's first trial found the State failed to prove the larceny charge, there was no
requirement that the State actually prove he successfully committed a separate
crime within Victim's home to prove the burglary charge. See State v. Peterson,
336 S.C. 6, 7, 518 S.E.2d 277, 278 (Ct. App. 1999) ("The fact that the jury failed to
convict Peterson of the sexual assault charge does not affect the validity of the
burglary charge. Indeed, that fact is immaterial."). Because Henley's acquittal for
larceny did not settle the critical issue of ultimate fact as to whether he entered
Victim's home without consent with the intent to commit a crime, the State was not
precluded from retrying him for first degree burglary. Accordingly, we find the
circuit court properly declined to quash the indictment and properly denied
Henley's motion for a directed verdict.

II. Larceny Acquittal

Henley argues the circuit court erred by excluding evidence of his acquittal on the
larceny charge where the State maintained its theory that the burglar's intention in
entering Victim's home was to steal. We disagree.

At Henley's second trial, he sought to introduce the self-authenticating copy of the
larceny indictment from his first trial, arguing it was exculpatory information.
Conversely, the State argued the evidence was wholly irrelevant and had no
bearing on the jury's determination of Henley's burglary charge. The circuit court
ruled:

             I don't believe this is allowed. I think it would confuse
             the jury. It does mention the same date, the same victim,
             and a piece of [personalty]. To some extent[,] it opens
             the door to a whole slew of issues. But it seems to me
             this would confuse the jury more than help the jury in
             their findings of fact as to his guilt or innocence on this
             charge.

"The admission of evidence is within the discretion of the trial court and will not
be reversed absent an abuse of discretion." See State v. Pagan, 369 S.C. 201, 208,
631 S.E.2d 262, 265 (2006). "An abuse of discretion occurs when the conclusions
of the trial court either lack evidentiary support or are controlled by an error of
law." Id. "To warrant reversal, an error must result in prejudice to the appealing
party." State v. Black, 400 S.C. 10, 16–17, 732 S.E.2d 880, 884 (2012).

"'Relevant evidence' means evidence having 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 401, SCRE. "All
relevant evidence is admissible, except as otherwise provided by the Constitution
of the United States, the Constitution of the State of South Carolina, statutes, these
rules, or by other rules promulgated by the Supreme Court of South Carolina.
Evidence which is not relevant is not admissible." Rule 402, SCRE. "Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Rule 403, SCRE. "The determination of the
prejudicial effect of the evidence must be based on the entire record and the result
will generally turn on the facts of each case." State v. Gillian, 373 S.C. 601, 609,
646 S.E.2d 872, 876 (2007). "'Probative' means '[t]ending to prove or disprove.'"
State v. Gray, 408 S.C. 601, 609–10, 759 S.E.2d 160, 165 (Ct. App. 2014) (quoting
Probative Value, Black's Law Dictionary (9th ed. 2009)). "'Probative value' is the
measure of the importance of that tendency to the outcome of a case. It is the
weight that a piece of relevant evidence will carry in helping the trier of fact decide
the issues. '[T]he more essential the evidence, the greater its probative value.'" Id.
(quoting United States v. Stout, 509 F.3d 796, 804 (6th Cir. 2007)).

Here, Henley's acquittal on the larceny charge was irrelevant; it did not make the
existence of any fact of consequence in the proceeding more or less probable with
respect to the elements of first degree burglary. See Rule 401, SCRE (defining
relevance). While the State was required to prove Henley entered Victim's home
without her consent and with the intent to commit a crime, there was no
requirement that the State prove Henley entered Victim's home without consent
and successfully committed the crime of taking Victim's Dell computer.
Henley further argues the circuit court failed to conduct the necessary Rule 403
balancing analysis; however, our review of the record reveals the circuit court
made an express finding that the evidence "would confuse the jury more than help
the jury in their findings of fact as to his guilt or innocence on this charge." Thus,
we find the circuit court properly applied Rule 403 in excluding evidence of the
larceny acquittal. Even assuming, arguendo, that the evidence was relevant, the
circuit court did not abuse its discretion in determining that any probative value
was substantially outweighed by the danger of unfair prejudice and misleading the
jury. The evidence of Henley's prior acquittal had little to no probative value as it
did not prove or disprove any element necessary to the first degree burglary
charge; yet, admission of the evidence would have likely led to jury confusion
because it would have invited the jury to speculate about what occurred at the first
trial. See Rule 403, SCRE (explaining that relevant evidence "may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . ."). Therefore, we affirm the
circuit court's exclusion of evidence of the larceny indictment and resulting "not
guilty" verdict from Henley's earlier trial.

III. Jolene Gray's Testimony

Henley argues the circuit court erred by limiting the admission of Jolene Gray's
testimony from the first trial where Gray was unavailable to the defense during the
second trial and her testimony provided evidence that the police had an opportunity
to obtain a cigarette smoked by Henley from outside of his own home. We
disagree.

On cross-examination during Henley's first trial, Gray claimed law enforcement
returned to the residence she shared with Henley on a second occasion when he
was not present. On re-direct, Gray testified:

             The second time they came, it was five of them, I think.
             One was at the back, four in the front. My son was living
             with me at the time. [Henley's] car [was] there. My car
             there and my son's car. They was walking around the
             grounds, you know, picking up. What they were picking
             up, I have no idea. But they was walking around. Yes.

In the first trial, Henley referenced Gray's testimony during his closing argument in
support of the defense theory that the State's DNA evidence was not credible
because of poor investigative protocols, noting:
             You also remember Officer Thompson isn't really sure
             what other officers were there. And that's another thing
             that's not good enough. He doesn't know which officers
             were there. An officer he says was there doesn't
             remember being there. But [Gray] said that one of the
             times the officers came to talk to [Henley], there were
             some cars parked out and she saw the officers picking
             stuff up. [Gray] didn't know what they were picking up.
             It may seem crazy, crazy for us to ask you to draw an
             inference they were picking up a cigarette butt. But what
             is equally crazy, is that we've got all this lost evidence in
             this case and we know it's lost. You would think, you
             know, that things like this don't happen, but they really
             do. And the State acknowledges that these things
             happen. So it's really not that far of a stretch to say, well,
             maybe, maybe they picked something up that day.
             Because we don't know where that cigarette butt was
             until March 29th of 2012. And, again, you heard from
             the SLED agent all the care that they take. And that they
             had that cigarette butt from March 29th until sometime in
             August of 2012. They tested it in August. They sent it
             back to the agency in 2012. But yet she doesn't return
             her actual analysis until January 2013.

At the retrial, Henley moved to admit Gray's testimony from the first trial.
Defense Counsel stated:

             Ms. Gray was the client, my client's girlfriend. She had
             some testimony, we have been unable to locate her. I can
             have our investigator come up and we can have her
             testify as to all of the efforts that she made to try to locate
             Ms. Gray. But we would ask under Rule 804(b)(1),
             [SCRE,] which is the hearsay exception where declarant
             is unavailable[,] to introduce Ms. Gray's testimony from
             the previous trial.

The State replied, "Judge, I really don't have an objection to it. If we were in the
same boat, I'd be asking the same thing." The circuit court granted Henley's
motion. Thereafter, the State informed the circuit court, "And, Judge, we are going
to probably try to ask our investigator if he can find Ms. Jolene Gray just to see if
there is a reason why she's not showing, though." The court replied, "Okay. If you
can find her, get her." Defense Counsel indicated she was "fine with that."

After the State rested its case-in-chief, the solicitor stated:

             Judge, it's my understanding that there are two potential
             defense witnesses that are not here . . . . one is Jolene
             Gray; is a former girlfriend of [Henley] . . . . We did,
             after yesterday, it was brought to our attention, we were
             able to contact her through our office, our investigator
             contacted her and she said she's in Anderson. She's never
             received a subpoena. Judge, I understand that [Henley]
             just wants to read in a prior transcript of her testimony.
             Your Honor, my, you know, we're not going to oppose
             that, but in my cross from a prior hearing, I'm only going
             to read a portion of it. And then I put on the record, I
             think, and once I stop at that one portion, that would, the
             reading of redirect from the Defense would be outside the
             scope of our cross.

Henley responded:

             Your Honor, the redirect portion goes to the officers
             coming out a second time, searching the home and not
             finding anything, leaving, searching the premises. The
             witness says that perhaps someone picked up something
             off the ground and we would want all of that testimony to
             come in to show that no items were collected, a doo-rag,
             burglary tools from the home since Mr. Henley did live
             there. It's our position that the entire testimony should
             come in.

The circuit court observed, "Well, now, we don't know whether something was
picked up off the ground or not. That's unknown. She's speculating." Ultimately,
the court ruled:

             All right. I think I'm going to grant [the State's] motion
             to limit [its] cross-examination to where [it] wants to
             stop. But I do not believe that will limit you or . . . ,
             whichever one closes, in saying nothing was taken or
             recovered from the house or you'd have seen it here
             today. I think y'all could say something along those lines
             in your closing argument and you can summarize it, had
             they gone and found something in that search, certainly it
             would be here. It's not here.

Rule 804(b)(1), SCRE, provides for the admission of former testimony where the
declarant is unavailable as a witness. Specifically, it allows the admission of
"[t]estimony given as a witness at another hearing of the same or a different
proceeding . . . , if the party against whom the testimony is now offered . . . , had
an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination." Id. One of the situations in which a declarant is deemed
"unavailable" for purposes of the rule is when the declarant "is absent from the
hearing and the proponent of a statement has been unable to procure the declarant's
attendance . . . by process or other reasonable means." Rule 804(a)(5), SCRE.

Henley represented that his investigator had been unable to locate Gray in order to
serve a subpoena, but that if the State could find Gray and procure her attendance,
he had no objection. Although the State was able to contact Gray at her Anderson
County residence, the relevant inquiry is whether Henley was able to procure
Gray's attendance by process or other reasonable means. The State confirmed
Henley's statement that Gray had not been served with a subpoena. While the State
again represented that it did not oppose the reading of the testimony, the solicitor
argued Henley should only be permitted to read the portion of his redirect
examination responsive to the cross, consequently excluding the redirect testimony
Henley sought to procure. Notably, the State did not argue any evidentiary basis
for excluding Gray's testimony, and it did not object to her testimony on redirect
during Henley's first trial. However, because Rule 804(a)(5) requires the
declarant's unavailability despite "process or other reasonable means," we believe
Gray's testimony was inadmissible hearsay. See Rule 220(c), SCACR ("The
appellate court may affirm any ruling, order, decision, or judgment upon any
ground(s) appearing in the Record on Appeal."). Our review of the record reveals
the circuit court ruled as much without specifically citing Rule 804(a)(5).

Nevertheless, we are concerned that instead of excluding all of Gray's testimony
from the prior trial, the circuit court allowed the State to select the portions of her
former testimony to be read, while excluding the portion Henley sought to present.
However, we do not find this error prejudiced Henley. See e.g., State v. Adams,
354 S.C. 361, 381, 580 S.E.2d 785, 795 (Ct. App. 2003) ("[A]n insubstantial error
not affecting the result of the trial is harmless where 'guilt has been conclusively
proven by competent evidence such that no other rational conclusion can be
reached.'" (quoting State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989), cert.
denied, (2004)). Culbreth testified he witnessed a black male at Victim's home
around 11:30 a.m. on February 15, 2012; he accurately described Henley's Pontiac
sedan, was able to provide law enforcement with a partial plate number matching
Henley's license plate, and recounted an interaction with the intruder. Henley
admitted to law enforcement that he had recently been in Abbeville and
acknowledged he had been on Highway 28. Henley also recalled speaking to
someone, presumably Culbreth, driving a pickup truck in Abbeville. Finally,
Victim testified the door to her home was intact when she left for work that
morning and damaged when she returned home. Thus, to the extent the circuit
court erred in allowing the State to pick and choose portions of Gray's prior
testimony after agreeing to admit it, we find such error was harmless.

IV. DNA Testing

Henley argues the circuit court erred in denying his motion to exclude evidence of
DNA testing conducted on the cigarette butt found at the crime scene because the
State could not present a complete chain of custody and the cigarette butt was not
available for comparison to the crime scene photograph at trial. Henley further
asserts the State's negligence in the destruction of the cigarette butt constituted bad
faith. We disagree.

During his direct examination at Henley's second trial, Deputy Thompson
explained the procedure for preserving evidence of the cigarette butt found at
Victim's residence:

             The cigarette you would document it by photograph and
             place. And then a DNA article, which is what it's been
             collected for, fresh gloves, we put it into a paper bag and
             not seal it in any kind of plastic that would destroy the
             evidence for lack of oxygen. And it would be submitted
             into a clean new bag.

Deputy Thompson testified he picked the cigarette butt up, placed it into the
evidence bag, and sealed it with tape. No other officers handled the cigarette butt
prior to his arrival at the crime scene. Deputy Thompson explained that after
collecting the evidence, the next step is to take the evidence to the law enforcement
center where it is either placed in a secure drop-box or handed directly to Chief
Marion Johnson, who was the evidence custodian at the time.

Chief Johnson was employed as the Chief Deputy of the Abbeville County
Sheriff's Office (ACSO) from 1989 to 2013. He was also the ACSO's evidence
custodian. Chief Johnson testified that after Deputy Thompson collected and
secured the cigarette butt, it was turned over to him. Chief Johnson logged in the
evidence and put it in the evidence locker. On March 29, 2012, Chief Johnson
gave the cigarette butt to Investigator Ryan Abernathy, who transported it to
SLED. Before sending the bag to SLED, Chief Johnson confirmed the bag had not
been tampered with. Investigator Abernathy later transported the cigarette butt
back to ACSO from SLED.

Maryanne Boehm, who is employed in the DNA casework department at SLED,
received the Newport cigarette butt for testing from Investigator Abernathy on
March 29, 2012. Regarding procedure, Boehm testified:

             So the cigarette butt is placed into a heat-sealed SLED
             pouch that is sealed and dated and initialed by the
             submitted investigator. It is then put on a secure shelf in
             the evidence vault. Not many people have access to this.
             Just the forensic technicians in evidence control and
             administration are the only ones who have access to this
             evidence storage location. Then, when I was assigned
             the case, I retrieved the evidence through an evidence
             technician, Amy Stevens. She retrieved the evidence,
             and then handed it to me and I took it into my custody at
             that time.

Boehm subsequently performed a DNA analysis on the cigarette butt in August
2012. Upon being shown the photograph of the cigarette butt collected at Victim's
home, Boehm testified it was consistent with the cigarette butt she tested. She
explained the DNA profile developed from the cigarette butt matched Henley's
DNA profile. After the positive result, Boehm issued a report of her findings in
January 2013, and returned the evidence back to SLED's evidence control unit.

The following colloquy ensued between the State and Boehm:

             Q: Now, Ms. Boehm, I showed you a picture of the
             cigarette butt, but I didn't actually show you the butt that
            you tested in the package today. Does that change the
            fact of your DNA outcome, your results?

            A: No, sir.

            Q: So you seeing that here today does not change your
            interpretation or the results?

            A: No, sir, not at all.

            Q: And you're saying today that on the day it was
            submitted to you[,] you did your testing, that the integrity
            of the bag was intact?

            A: Yes, sir.

            Q: There was no tampering with it at all?

            A: That's correct.

At the time of Chief Johnson's retirement in May 2013, all evidence obtained in
Henley's case was still in the evidence room. Sometime after the evidence was
returned from SLED to ACSO, it was either destroyed or misplaced. Prior to trial,
Henley moved to suppress any testimony or mention of the cigarette butt.
Ultimately, the circuit court ruled:

            I don't think it's suppressed, though. Now, on that, I'm
            going to leave it more or less a motion in limine, because
            the summary by both of y'all as to the facts, because a
            summary of facts is not sworn testimony. If we get in
            trial and I hear something different, I may change my
            mind . . . . It seems more to be a motion in limine and
            that's how I'm ruling on it. Assuming everything comes
            in as y'all outlined it; that will be my findings. It will be
            a careless or negligent losing of the evidence but will be
            admitted; the DNA result will be. Assuming the
            foundation for all the others can be met, but if the
            testimony doesn't support what y'all have outlined, then I
            may change my ruling and you can renew that motion
             and suppress. That make sense? I think that's the best
             way to handle it.

Henley contends the State's negligence in maintaining the evidence constitutes bad
faith. He also asserts the State presented an insufficient chain of custody because
the physical cigarette was not available for comparison to the crime scene
photograph at trial. We disagree. Initially, we note Henley failed to present any
evidence of bad faith on the part of law enforcement in losing the cigarette butt.
Moreover, the State presented a clear and complete chain of custody of the
cigarette butt from the time of collection through the item's testing by SLED and
its subsequent return to ACSO.

As a threshold matter, we question whether this argument is preserved for review
because Henley failed to renew his objection to the admission of this evidence
during Boehm's testimony. In its ruling, the circuit court explained it was making
a ruling in limine, and that its ruling was subject to change. Thus, it was
incumbent upon Henley to contemporaneously object in order to get a final ruling
and preserve the issue for appellate review. See State v. Hoffman, 312 S.C. 386,
393, 440 S.E.2d 869, 873 (1994) ("A contemporaneous objection is required to
properly preserve an error for appellate review.").

Still, even if this argument were properly preserved, we find it to be without merit.
"Under the Due Process Clause of the Fourteenth Amendment, criminal
prosecutions must comport with prevailing notions of fundamental fairness."
California v. Trombetta, 467 U.S. 479, 485 (1984). While the fundamental
fairness standard requires criminal defendants to be given a meaningful
opportunity to present a complete defense, to set forth a due process violation, a
criminal defendant "must demonstrate either that the state destroyed evidence in
bad faith, or that the state destroyed evidence that possessed an exculpatory value
that is apparent before the evidence was destroyed and the defendant cannot obtain
other evidence of comparable value by other means." State v. Mabe, 306 S.C. 355,
358–59, 412 S.E.2d 386, 388 (1991); see also State v. Cheeseboro, 346 S.C. 526,
538–39, 552 S.E.2d 300, 307 (2001) (affirming circuit court's denial of defendant's
motions to suppress and to dismiss indictments where there was no bad faith in
destruction of gun, bullets were still available to the defense, and "there was no
prejudice to the defense because the gun was incriminating rather than
exculpatory"); State v. Reaves, 414 S.C. 118, 129, 777 S.E.2d 213, 218 (2015)
(finding that although multiple pieces of evidence were collected at the crime
scene but missing at the time of trial, the errors made did "not indicate bad faith as
is required to dismiss an indictment under the federal constitutional test").
Here, Henley is unable to make the showing of bad faith required to support
exclusion of the DNA evidence. While the State admittedly lost the cigarette butt
before trial, the only evidence presented was that it was returned from SLED to
ACSO and then was either destroyed or misplaced following Chief Johnson's
retirement. Bad faith cannot be inferred simply because the evidence was lost. See
State v. Breeze, 379 S.C. 538, 546, 665 S.E.2d 247, 251 (Ct. App. 2008) ("The
foregoing demonstrates the State's actions were not in bad faith but rather an
inadvertent mistake.").

Furthermore, while the DNA test result was certainly critical evidence, the
presence of the cigarette butt itself would have done nothing to change the report
generated from SLED's processing of that evidence. The presence of the physical
cigarette for comparison would have contributed nothing of value, as Henley
would have undoubtedly noted the cigarette was a nondescript item without any
significant or distinguishing markings. Finally, as this evidence was inculpatory
rather than exculpatory, the presence of the physical cigarette would have been
more damaging to Henley's defense than its absence.6

As to Henley's argument concerning the chain of custody, the absence of the
cigarette butt at trial did not render the chain of custody incomplete. Although the
whereabouts of the cigarette butt were accounted for from the time of its collection
on February 15, 2012, through the time it was returned to ACSO after the SLED
testing, we acknowledge there was no testimony regarding the date on which the
cigarette was initially logged into the evidence locker at ACSO. But see State v.
Hatcher, 392 S.C. 86, 95, 708 S.E.2d 750, 755 (2011) ("The ultimate goal of chain
of custody requirement's is simply to ensure that the item is what it is purported to
be."). Notably, "[c]ourts have abandoned inflexible rules regarding the chain of
custody and the admissibility of evidence in favor of a rule granting discretion to
the trial courts." Hatcher, 392 S.C. at 94, 708 S.E.2d at 754. We find the chain of
custody of the cigarette butt from the time of collection through testing was
sufficient, and the circuit court properly exercised its discretion in admitting
evidence of the DNA collection and test results.


6
  Instead, the fact that the evidence was lost provided Henley with considerable
ammunition with which to criticize the State's investigation. See Reaves, 414 S.C.
at 128, 777 S.E.2d at 218 ("Further, to the extent Reaves was disadvantaged by the
State's loss of evidence, Reaves' attorney was allowed to forcefully cross-examine
the police officers on the deficiencies in their investigation.").
Conclusion

For the foregoing reasons, Henley's conviction is

AFFIRMED.

LOCKEMY, C.J. and SHORT, J., concur.
