THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Samuel A. Rose,        Appellant.

Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge

Unpublished Opinion No. 2003-UP-221
Submitted January 29, 2003 – Filed March 20, 2003   

AFFIRMED

Assistant Appellate Defender Tara S. Taggart, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Charles H. Richardson; and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; Solicitor Ralph E. Hoisington, of Charleston; for Respondent.

PER CURIAM:  Samuel A. Rose appeals from his conviction and sentence for indecent exposure.  He contends the police conducted an unduly suggestive lineup.  We affirm. [1]

The victim, a dental student at the Medical University of South Carolina in Charleston, was headed for her car in the parking lot during daylight hours when she noticed a man standing in the median.  She crossed the street, and the man began to follow close behind her.  When she reached her car, she got in and locked the doors.  As she prepared to back out of her parking space, she looked over her left shoulder and saw the man at her window, his genitals exposed.  He followed alongside the victim’s car as she drove away. 

The victim immediately reported the incident to the police.  She described the person as a slim African-American male who stood between five feet, five inches and five feet, seven inches tall.  She said he wore square glasses; had no facial hair; had slightly pointed ears; and wore blue pants, a white shirt, and a blue jacket.  She estimated seeing the man for about eight to ten minutes while traveling about two hundred feet and waiting on traffic. 

The following day, in an attempt to identify the man, she viewed an array of six color photographs of subjects with the same physical description: all were African-Americans, all appeared to be about the same age, and all wore glasses.  She identified Rose as the man who had exposed himself to her. 

On cross-examination, defense counsel drew an admission from the victim that the background in Rose’s photograph appeared darker than the rest. 

The trial court found the identification procedure was not unduly suggestive and denied Rose’s motion to suppress the out-of-court and in-court identifications. 

The trial record fully supports the trial court’s finding. [2]   Rose’s odd behavior alerted the victim; she had a continuing opportunity to observe his appearance and his attire, including such details as his lack of facial hair, his distinctive ears, and his eyeglasses.  All the men pictured in the array were of the same race, about the same in age, and wore eyeglasses.

As for the background of Rose’s photograph appearing different from the rest, the victim attached no significance to that fact.  Moreover, another photograph in the array also had a different background color.  What she did find distinctive about Rose’s photograph, however, was his glasses and his ears. 

AFFIRMED.

HEARN, C.J., and GOOLSBY and SHULER, JJ., concur.