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.

Anthony Douglas, Appellant.

Appeal From Marlboro County
�Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2007-UP-496
Submitted October 1, 2007 � Filed October 16, 2007

AFFIRMED

Appellate Defender Katherine H. Hudgins, of Columbia and Douglas Jennings, Jr., of Bennettsville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Shawn L. Reeves, all of Columbia; and Solicitor Jay E. Hodge, Jr., of Cheraw, for Respondent.

PER CURIAM: In July 2005, Anthony Douglas was tried and convicted by a Marlboro County jury of distribution of crack cocaine. Douglas timely appeals this conviction contending he was deprived of his right to a fair trial due to a police officer�s testimony regarding prior drug purchases from Douglas, the solicitor�s closing argument remarks on physical evidence not introduced to the jury, and the solicitor�s comment upon the pervasiveness of drugs in Marlboro County during his closing argument.� Douglas argues the trial court erred in denying his motion for mistrial on these three grounds.� We affirm.[1]

FACTS

In March 2004, Robert Candrilli (Candrilli), a confidential informant, planned and executed a drug purchase under the auspices of the Marlboro County Sheriff�s Department. Candrilli met Officers George McLeod (Officer McLeod) and Robert Bryant (Officer Bryant) in a secluded area where the officers searched him for drugs and money before attaching a �wire� or listening device to Candrilli. Candrilli proceeded to the Crossroads Grocery where he used a payphone to call Douglas�s cell-phone and request twenty dollars worth of crack cocaine. Douglas arrived ten minutes later in a burgundy Buick, gave Candrilli a substance later determined to be .15 grams of crack cocaine, collected twenty dollars, and drove away from the pay phone booth.

As Douglas drove away from Candrilli, Douglas passed by Officer McLeod who was parked on a dirt road a few hundred yards from Crossroads Grocery. �While Officer McLeod could not see the actual exchange of drugs for money, he could identify Douglas as the driver of the passing burgundy Buick.

Immediately after the drug transaction, Officer Bryant collected Candrilli from Crossroads Grocery and drove him to a secluded location where they met Officer McLeod. Candrilli surrendered the crack he had purchased from Douglas and was searched again by the officers. �Douglas was arrested several weeks later and indicted for distribution of crack cocaine. �

During pre-trial motions the trial court ruled that all testimony should be limited to the events of March 15, 2004, and witnesses should refrain from discussing Douglas�s prior drug convictions. Upon cross-examination, Officer McLeod testified he was able to identify Douglas as the driver of the burgundy Buick because the Marlboro County Sheriff�s Department had previously purchased drugs from Douglas. The trial court immediately gave curative instructions that the jury was to disregard any testimony regarding any activity of any kind other than the events on March 15. The trial court admonished the jury that should they choose to accept Officer McLeod�s testimony, it was to be used for identification purposes only. �

The jury heard testimony from Candrilli regarding the date of the drug transaction, Douglas�s cell phone number, and the pay phone number at Crossroads Grocery. �Candrilli recited the date and the phone numbers from a slip of paper he possessed on the witness stand. �During cross-examination Candrilli stated he wrote the date and time of the drug transaction on the paper but other people had written down the numbers for Douglas�s cell phone and the pay phone at Crossroads Grocery. Candrilli testified the paper was from his day-timer, however, during closing arguments the solicitor matched the paper to his legal pad. The solicitor further explained that he wrote down the phone numbers so Candrilli could refresh his memory on the witness stand.

In his closing argument the solicitor also commented upon the pervading nature of drugs in Marlboro County schools and areas around Marlboro County. He continued to say that if Douglas were found guilty, the jury would �be doing this community and this society a wonderful, wonderful favor by taking a drug dealer off of the streets.� �After the solicitor finished his closing argument, Douglas�s counsel waited until the jury had been charged before making a motion for mistrial based on the solicitor�s closing.

STANDARD OF REVIEW

The decision to grant or deny a mistrial is within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion amounting to an error of law. State v. Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (Ct. App. 2005).� �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.� The granting of a motion for mistrial is an extreme measure which should be taken only where an incident is so grievous that its prejudicial effect can be removed no other way. Id.� �

LAW/ANALYSIS

Douglas argues the trial court erred in failing to grant his motion for mistrial based on the following three events during his trial: (1) Officer McLeod�s testimony on cross-examination regarding Douglas�s prior involvement in drug transactions other than the March 15, 2004 transaction at issue; (2) the solicitor�s closing argument discussion of a slip of paper the confidential informant used to recall phone numbers and dates while on the witness stand; and (3) the solicitor�s closing argument remarks on the universal problem of drugs and the presence of drugs in Marlboro County. We disagree.

I. Officer�s Testimony

During cross-examination of Officer McLeod, Douglas�s counsel inquired as to how Officer McLeod could look into a vehicle approaching from the direction of the Crossroads Grocery and identify the driver. Officer McLeod warned Douglas�s counsel he may not like the answer and when Douglas�s counsel pressed him, Officer McLeod testified that he could, �identify [the defendant] because that was not the first time the Marlboro County Sherriff�s Office had purchased drugs from [the] defendant.� Douglas argues this testimony should have resulted in a mistrial.� We disagree.

Evidence of a defendant's crimes, wrongs, or acts is generally not admissible. Rule 404(b), SCRE.� Our courts view a defendant's previous distribution of drugs as a past bad act. State v. King, 349 S.C. 142, 152, 561 S.E.2d 640, 645 (Ct. App. 2002).� In State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), and incorporated in Rule 404(b), SCRE, a defendant's prior bad acts may be admitted to show: (1) motive; (2) identity; (3) the existence of a common scheme or plan; (4) the absence of mistake or accident; or (5) intent.

Pursuant to Rule 403, SCRE, any prejudice resulting from the admission of evidence under Rule 404(b), SCRE, must be outweighed by its probative value. �State v. Fletcher, 363 S.C. 221, 242, 609 S.E.2d 572, 583 (Ct. App. 2005). �The determination of prejudice must be based on the entire record and the result will generally turn on the facts of each case.� Id.� Generally, a curative instruction to disregard testimony or evidence is deemed to have cured any alleged error. State v. Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 129-30 (Ct. App. 2005).

In this case, Douglas�s prior drug transactions were introduced to explain how Officer McLeod knew Douglas was the driver of the vehicle.� Douglas�s counsel attempted to discredit the eyewitnesses� testimony by arguing that Douglas drives a white Mitsubishi sedan and a black Honda Accord, not a burgundy Buick. �In response to the challenges regarding the Buick driver�s identity, Officer McLeod testified he was able to identify Douglas due to prior drug transactions involving Douglas. ���

Following Officer McLeod�s statement, Douglas�s counsel alerted the trial judge that he had a motion to raise. The trial judge denied any potential motion by replying, �[w]e�re going forward,� and immediately instructed the jury they were �not to consider that testimony for any purpose than identification.� The trial judge�s comments note that Douglas�s counsel opened the door to this testimony by repeated questions of how Officer McLeod could identify Douglas in the automobile. The trial judge�s curative instructions further emphasized that Douglas was only charged with distribution of crack cocaine resulting from an event on March 15, 2004, and the jury was to �disregard any testimony involving any activity of any kind other than if [they] care to use it for identification only.�

We find that Officer McLeod�s remarks on Douglas�s prior drug sales were allowed into evidence for the purpose of resolving identity, one of the five exceptions of Rule 404(b), SCRE, which allows prior bad acts to be admitted into evidence.� Although the trial court did not conduct a Rule 403, SCRE, �on-the-record� analysis in matters pertaining to the admission of prior bad acts, the curative instructions evince the trial court�s clear balancing of probative value versus prejudicial effect. State v. King, 349 S.C. 142, 155-57, 561 S.E.2d 640, 647 (Ct. App. 2002).�� If Douglas was prejudiced, any such prejudice was cured by the trial judge�s curative instruction.� The instruction was straightforward and refrained from reiterating or emphasizing Officer McLeod�s statement.� State v. Edwards, 373 S.C. 230, 237, 644 S.E.2d 66, 69 (Ct. App. 2007).�

Furthermore, appellate courts will not generally set aside convictions due to insubstantial errors which don�t affect the result. State v. Douglas, 369 S.C. 424, 432, 632 S.E.2d 845, 849 (2006).� In determining if an error is harmless, the appellate court will review the entire record to determine what effect the error had on the verdict. Id.� �An 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.� State v. White, 372 S.C. 364, 386, 642 S.E.2d 607, 618 (Ct. App. 2007). In the instant case, the State presented testimony from a confidential informant who was well acquainted with Douglas, a phone record showing Douglas received a call from the location of the drug exchange minutes before the transaction occurred, evidence the substance exchanged was crack cocaine, and an audio recording of the drug transaction.� ��

In addition, Officer McLeod�s testimony could not have affected the outcome of the trial because Candrilli previously testified that Douglas sold crack before the event in question. �Improperly admitted evidence is harmless where cumulative. State v. Williams, 321 S.C. 455, 463, 469 S.E.2d 49, 54 (1996).� The trial judge interjected a curative instruction ex mero motu that the court was permitting the testimony of how Candrilli knew Douglas �only as an identification issue and for no other purpose.� Douglas did not object. �Accordingly, we can discern no abuse of discretion in the trial judge�s denial of Douglas�s motion for mistrial.

II. Evidence in the Solicitor�s Closing Argument

In his closing argument the solicitor demonstrated that the slip of paper Candrilli used on the witness stand in recalling phone numbers was torn from his legal pad. The solicitor admitted he wrote some of the phone numbers for Candrilli and explained that the slip of paper was only to refresh Candrilli�s recollection of phone numbers associated with an incident that occurred sixteen months prior to trial. Douglas argues the trial court erred in failing to grant a mistrial based on the solicitor�s comments on matters not introduced into evidence at trial.� We disagree.

Initially, we note this issue is not preserved for our review.� Douglas�s counsel did not make a timely objection to the solicitor�s closing but instead delayed until after the jury had been charged before raising any objections.� �It is a fundamental principal that a contemporaneous objection is required at trial to properly preserve an error for appellate review[2].� State v. Black, 319 S.C. 515, 521, 462 S.E.2d 311, 315 (Ct. App. 1995).� The proper course of action when counsel makes an improper statement is for opposing counsel to immediately object, have a record made of the statement, and ask the court for a distinct ruling thereon.� Id. at 521, 462 S.E.2d at 315.� Failure to object when evidence is offered amounts to a waiver of the right to object. Id. at 521-22, 462 S.E.2d at 315.�

Even if this argument were preserved for appellate review, the solicitor�s presentation of the legal pad from which the slip of paper was torn and his comments regarding who wrote the telephone numbers on the paper afford no basis for a mistrial.

A solicitor may not rely on statements not in evidence during closing argument.� State v. Gaines, 271 S.C 65, 66, 244 S.E.2d 539, 540 (1978).� Arguments must be confined to evidence in the record and reasonable inferences therefrom, although failure to do so will not automatically result in reversal.� State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996).� A new trial will not be granted unless the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Coleman, 301 S.C 57, 61, 389 S.E.2d 659, 661 (1990) (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).

Here, the solicitor improperly introduced new evidence to the jury in his closing argument by explaining he wrote some of the phone numbers on the slip and by demonstrating the origin of the slip of paper.� However, the solicitor�s comments do not automatically mandate reversal if they do not result in prejudice to the defendant. Gill v. State, 346 S.C. 209, 221, 552 S.E.2d 26, 33 (2001).�

�No definite rule of law governs finding an error harmless; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case.�� State v. Gillian, 360 S.C. 433, 454-55, 602 S.E.2d 62, 73 (Ct. App. 2004).� �In determining whether an error is harmless, the appellate court must review the entire record to determine what effect the error had on the verdict.� State v. Douglas, 369 S.C. 424, 432, 632 S.E.2d 845, 849 (2006).� Error is harmless where it could not reasonably have affected the result of the trial. In re Harvey, 355 S.C. 53, 63, 584 S.E.2d 893, 897 (2003).� Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. Douglas, 369 S.C. at 432, 632 S.E.2d at 849.

Based on the totality of the record we find the solicitor's comment, although an improper explanation of the slip of paper Candrilli used on the witness stand, was harmless error.� First, the solicitor�s explanation of the source of the slip of paper did not go to the heart of the crime for which Douglas was charged.� Whether the solicitor or Candrilli wrote on the slip of paper has little if any probative value as to the material elements of distribution of crack cocaine.� See State v. Black, 319 S.C. 515, 522, 462 S.E.2d 311, 316 (Ct. App. 1995) (noting whether a trooper was or was not driving an unmarked car has little if any probative value as to the defendant�s crime of speeding).� Second, the solicitor�s explanation uncovered conflicting testimony by the State�s own witness. The weight of the evidence and the credibility of the witnesses are matters within the province of the jury. Fortner v. Carnes, 258 S.C. 455, 461, 189 S.E.2d 24, 27 (1972).� Douglas was not prejudiced by the solicitor�s closing argument which potentially cast speculation upon the truth of Candrilli�s statements from the witness stand.� Finally, we find the evidence of Douglas�s guilt overwhelming based on (1) testimony by Candrilli regarding the drug transaction; (2) the audio recording documenting the transaction; and (3) the phone records showing a call was placed from the pay phone at Crossroads Grocery to Douglas�s cell phone a short time before the transaction occurred.

III. Comments on Drugs in Society During Solicitor�s Closing Argument

At the end of his closing argument, the solicitor acknowledged the jury�s decision involved taking Douglas�s liberty but that the jury�s decision also affected �the liberty of every youth�the liberty of every young person, every person that goes to Marlboro County High School, every person from this entire county.� The solicitor also commented on the omnipresent nature of drugs when he said, �[i]t is not just stopping here in Marlboro County.� It goes to Chesterfield.� It goes to Dillon.� It goes to Darlington.� It goes to North Carolina.� It goes to everywhere because drugs are a universal problem, and drugs are everywhere.� �

The solicitor concluded by stating, �if you today find that the evidence is significant enough to find him guilty, I believe that you will be doing this community and this society a wonderful, wonderful favor by taking a drug dealer off of the streets and placing him where he belongs where he can�t do harm to anyone else� [t]here�s going to be problems but�the less drug dealers there are on the streets, the better off we are.� Douglas argues the trial court erred in failing to grant his motion for mistrial based on the solicitor�s closing argument.� We disagree.

Again we note this issue is not preserved for our review.� Douglas�s counsel did not make a timely objection to the solicitor�s closing but instead delayed until after the jury had been charged before raising any objections[3].� Even if this argument were preserved for appellate review, the solicitor�s discussion of drugs in schools and surrounding counties affords no basis for a mistrial.

The appropriateness of a solicitor's closing argument is a matter left to the trial court's discretion. State v. King, 349 S.C. 142, 160, 561 S.E.2d 640, 649 (Ct. App. 2002). An appellate court will not disturb the trial court's ruling regarding closing argument unless there is an abuse of that discretion. Id.� �An appellant must prove an abuse of discretion and resulting prejudice to warrant reversal.�� State v. Navy, 370 S.C. 398, 412, 635 S.E.2d 549, 556 (Ct. App. 2006).�

A solicitor�s argument must be carefully tailored so as not to appeal to the personal bias of a juror or be calculated to arouse a juror�s passion or prejudice.� King, 349 S.C. at 159, 561 S.E.2d at 649.� When reviewing a solicitor�s closing argument, the court must determine if the solicitor�s comments �so infected the trial with unfairness as to make the resulting conviction a denial of due process.�� Navy, 370 S.C. at 412, 635 S.E.2d at 556.� On appeal, an appellate court will review the alleged impropriety of the solicitor's argument in the context of the entire record, including the adequacy of the trial judge�s curative instructions and the evidence of the defendant�s guilt. State v. Rudd, 355 S.C. 543, 550, 586 S.E.2d 153, 157 (Ct. App. 2003).� In State v. Durden, solicitors� closing arguments are discussed as follows:

�So long as he stays within the record and its reasonable inferences, the prosecuting attorney may legitimately appeal to the jury to do their full duty in enforcing the law, �and may employ any legitimate means of impressing on them their true responsibility in this respect,�[he] may illustrate the effect of their verdict on the community or society generally with respect to obedience to, and enforcement of, the law�

State v. Durden, 264 S.C. 86, 92, 212 S.E.2d 587, 590 (1975) (citing 23A C.J.S. Criminal Law � 1107 (2007)).�

In the instant case the solicitor reviewed the testimony presented to the jury and emphasized the important nature of the jury�s decision in regard to the community.� The solicitor did not implore the jury to speak for any victim or beseech them to abandon their impartiality, but instead stressed that the jury must weigh the evidence to determine if it is �significant enough to find [Douglas] guilty.� See State v. Reese, 370 S.C. 31, 37-38, 633 S.E.2d 898, 901-02 (2006) (holding that a solicitor�s Golden Rule closing argument asking jurors to abandon their impartiality and view the evidence from victim's viewpoint deprived defendant of a fair trial).

We hold Douglas was not prejudiced by the solicitor�s general discussion of drugs� pervading presence in Marlboro County, its schools, or its surrounding counties.� After reviewing the entire record we find there was sufficient evidence to support the jury�s decision.� In this context, the comments on the universal nature of drugs during the solicitor�s closing argument were not so prejudicial as to deny Douglas a fair trial.

AFFIRMED.

ANDERSON and THOMAS, JJ., and GOOLSBY, A.J., concur.

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

[2] In Toyota of Florence v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994), South Carolina recognized a narrow exception to this rule, but for the Toyota exception to apply it must be a case in which a vicious inflammatory argument results in clear prejudice.� Dial v. Niggel Associates, Inc., 333 S.C. 253, 509 S.E.2d 269 (1998).� That is not the case in this instance.� See Toyota of Florence v. Lynch (holding that although counsel did not contemporaneously object to posters depicting Oriental characters and mushroom cloud explosions, in flagrant cases where a vicious inflammatory argument results in clear prejudice, a new trial motion should be granted despite the lack of timely objection).��

[3] �It is a fundamental principal that a contemporaneous objection is required at trial to properly preserve an error for appellate review.� State v. Black, 319 S.C. 515, 521, 462 S.E.2d 311, 315 (Ct. App. 1995).�