THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Melvin McNeil,        Appellant.

Appeal From Richland County
James C. Williams, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-426
Submitted June 8, 2004 � Filed June 30, 2004

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

PER CURIAM:� A Richland County jury convicted Melvin McNeil of assault and battery with intent to kill.� He appeals, asserting the trial court erred by (1) improperly admitting evidence of a prior bad act allegedly committed by McNeil, and (2) refusing to grant a mistrial following the solicitor�s inappropriate reference to the prior bad act evidence during closing arguments.� We affirm. [1]

FACTUAL/PROCEDURAL HISTORY

On the evening of January 2, 2001, Levette Goodwin, Tyrone Rivers, and Mary Wooden were walking together along Flamingo Road in the Bluff Estates neighborhood of Columbia.� As they continued down the road, a vehicle drove slowly past the group and stopped a short distance in front of them.� McNeil emerged from the driver�s side of the car holding a handgun.� Seeing this, Goodwin began running away.� McNeil fired the handgun a couple of times, hitting Goodwin in his leg with one bullet.�

McNeil was subsequently arrested and charged with assault and battery with intent to kill (ABIK).� At trial, the solicitor introduced evidence that McNeil shot Goodwin in another incident that occurred on November 12, 2000, some 50 days before the January 2, 2001 shooting.� Over defense counsel�s objection, the trial court admitted the evidence as proof of McNeil�s intent when he shot Goodwin on January 2, 2001.�

LAW/ANALYSIS

I.������ Admission of Prior Bad Act Evidence

McNeil first claims the trial court erred by admitting testimony that he allegedly shot the victim several weeks prior to the incident charged.� We disagree.

Goodwin testified that he had known McNeil all his life, but that hostilities developed between them sometime in late 2000 after they had been �slap boxing� at the home of Goodwin�s cousin:

I was messing around and grabbed [McNeil] by his leg and fell on top of him, and we was just playing, kidding around.� Ever since that day [McNeil] just took it serious and he had like a vendetta against me. . . . Every time he saw me it was like I�m going to get you, and he was like pulling out guns and wanting to fight, you know.

Goodwin further testified that subsequent to the wrestling incident, on November 12, 2000, McNeil shot him while he was walking through the Bluff Estates neighborhood:

I was going to my cousin�s house earlier that morning, and I was coming through the cut and Mr. McNeil was sitting in the chair on the side of the house and he had a shotgun in his hand.

. . . .

I turned around and I jumped the gate. Then he ran behind me with the shotgun and started shooting, right. I was running. I was behind the lady that stays next to my cousin.� I hid behind her car.� When I tried to jump the gate, that�s when he got to shooting some more and that�s when the buck shots hit the gate and one hit me right here in my arm.

McNeil argues the admission of this testimony regarding the prior shooting was unfairly prejudicial to his defense, only serving to foster in the jurors� minds a presumption of guilt for the crime charged.

While evidence of prior crimes or misconduct is inadmissible to prove the specific crime charged, it may be admitted if it 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 others; or (5) the identity of the person charged with the present crime.� Rule 404(b), SCRE; State v. Lyle, 125 S.C. 406, 416, 118 S.E. 803, 807 (1923).� If not the subject of a conviction, a prior bad act must first be established by clear and convincing evidence.� State v. Beck, 342 S.C. 129, 135, 536 S.E.2d 679, 683 (2000).� The decision on whether to admit evidence of other bad acts is entrusted to the sound discretion of the trial judge, and that decision will not be disturbed by the appellate court if there is any evidence to support the admission.� State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001).

In the present case, the trial court admitted the evidence concerning McNeil�s prior assault on Goodwin as probative of McNeil�s intent when he committed the shooting for which he was charged.� However, evidence of other crimes, even if logically relevant to prove intent, is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant.� Rule 403, SCRE; State v. Brooks, 341 S.C. 57, 62-63, 533 S.E.2d 325, 328 (2000).� The determination of prejudice must be based on the entire record and the result will generally turn on the facts of each case.� Id.� at 62, 533 S.E.2d at 328.� Evidence is unfairly prejudicial if it has an undue tendency to suggest a decision on an improper basis.� State v. Owens, 346 S.C. 637, 666, 552 S.E.2d 745, 760 (2001).

Based on our review of the record before us, we conclude the evidence of McNeil�s prior shooting of Goodwin bears sufficient logical relevance to the ABIK charge in this case.� Both incidents occurred close in time and under similar circumstances involving the same victim.� Evidence of the November 12, 2000 shooting was, therefore, significantly probative of McNeil�s intent when he shot Goodwin on January 2, 2001.

II.����� Mistrial

McNeil next argues the trial court erred by denying his motion for mistrial following the solicitor�s reference to the November 12, 2000 shooting in his closing statement.� We disagree.

The portion of the solicitor�s closing argument at issue was transcribed as follows:

SOLICITOR: One thing in [defense counsel�s] opening statement that he seemed to harp on a lot was the fact that it was just a leg wound.� [Goodwin] was just shot in the lower leg.� I submit to you, ladies and gentlemen, ask yourselves, how many times does that young man have to be shot, and �

DEFENSE COUNSEL:� Your Honor, I object to that argument.

TRIAL JUDGE:� I think so.

DEFENSE COUNSEL:� And I have a matter of law to take up whenever the court wishes.

TRIAL JUDGE:� All right, sir.� Just move on please, sir.

SOLICITOR:� Yes, sir.

Shot two times, is that not enough to find malice? Is that not enough for there to be malice, ladies and gentlemen?

DEFENSE COUNSEL: I continue the objection, sir.

The trial judge then convened a bench conference with counsel out of the hearing of the jury.�

At the conclusion of closing arguments, defense counsel moved the trial court for a declaration of mistrial on the grounds that the portion of the solicitor�s closing argument quoted above made reference to the evidence of McNeil�s prior bad act in a manner beyond the scope of the limited purpose for which it was admitted.� Defense counsel argued that, instead of being used to show McNeil�s intent at the time he committed the act for which he was charged, the solicitor was attempting to appeal to the passion and prejudice of the jury.�

The decision to grant or deny a mistrial is within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion amounting to an error of law.� State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28 (2000).� �A mistrial should only be granted when absolutely necessary,� and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial.� Id. at 63, 530 S.E.2d at 628; see also State v. Beckham, 334 S.C. 302, 310, 513 S.E.2d 606, 610 (1999) (�The granting of a motion for a mistrial is an extreme measure which should be taken only where an incident is so grievous that prejudicial effect can be removed in no other way.�).

In this case, we do not discern any error or prejudice resulting from the content of the solicitor�s closing statement.� The reference to the two shootings and the question, �how many times does that young man have to be shot,� while no doubt intended to capture the jurors� attention, did not necessarily suggest that the evidence of McNeil�s alleged prior bad act be considered for any purpose other than to determine McNeil�s intent when he committed the crime charged.� Indeed, one of the avenues pursued by McNeil�s attorney in his defense was to suggest, even if McNeil did shoot Goodwin, he did not have the necessary intent for the jury to find him guilty of ABIK.� The solicitor�s statement can be reasonably interpreted as merely emphasizing the fact that the prior alleged shooting tends to prove the intent with which McNeil acted when he shot Goodwin on January 2, 2001.� That the jury would draw this conclusion from the solicitor�s argument is all the more likely when considering the manner in which the solicitor qualified his statement after defense counsel�s initial objection, adding: �Shot two times, is that not enough to find malice? Is that not enough for there to be malice, ladies and gentlemen?�� The solicitor therefore made clear that he was focusing the jury�s attention on McNeil�s intent when he shot Goodwin on January 2, 2001.

CONCLUSION

For the reasons above, we find the trial court did not abuse its discretion in admitting evidence of McNeil�s prior bad act, nor did the trial court abuse its discretion in denying McNeil�s motion for a mistrial based on the solicitor�s closing argument.� Finding no error, the rulings of the trial court are therefore

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.