THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

George N. Moses, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2020-000093 

ON WRIT OF CERTIORARI 

Appeal from Orangeburg County 

Edgar W. Dickson, Circuit Court Judge 

Opinion No. 6041 

Heard November 16, 2023 – Filed January 3, 2024 

AFFIRMED 

Appellate Defender Jessica M. Saxon, of Columbia, for 

Petitioner. 

Attorney General Alan McCrory Wilson and Senior 

Assistant Attorney General Mark Reynolds Farthing, 

both of Columbia, and Solicitor David Michael Pascoe, 

Jr., of Orangeburg, all for Respondent. 

GEATHERS, J.: Petitioner George N. Moses appeals the December 16, 2019 

denial of his application under the Access to Justice Post-Conviction DNA Testing 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Act (the DNA Testing Act),

1 in which he sought post-conviction DNA testing of 

evidence used to convict him of voluntary manslaughter and armed robbery in 

February 2009. Moses argues the circuit court erred by relying on the incorrect part 

of the statute and misapplying the statutory factors used to review his application. 

We affirm. 

FACTS 

George Moses was convicted of voluntary manslaughter and armed robbery 

and sentenced to life without parole on February 12, 2009, for the killing of Harry 

Livingston (the victim). On September 29, 2006, Moses visited the victim to 

purchase drugs. A fight broke out between the two surrounding the terms of the 

exchange and resulted in Moses stabbing and hitting the victim with a stick until the 

victim passed out. The victim was subsequently found dead, and an autopsy 

attributed his death to a closed-head injury and subarachnoid hemorrhaging. After 

the altercation, Moses went to a friend's house and hid a pair of bloody shorts, which 

police later found. A grand jury indicted Moses for armed robbery and murder. At 

trial, Moses admitted to the altercation with the victim and argued that he acted in 

self-defense. DNA testing of several pieces of evidence, including strips cut from 

the bloody shorts Moses stashed after his fight with the victim, did not reveal Moses' 

DNA. 

Moses filed an application under the DNA Testing Act on January 3, 2017, 

requesting that the State perform a DNA test on two other items: swabs taken from 

the pockets of the pair of shorts he admitted to hiding and fingernail clippings taken 

from the victim. Moses alleged that testing these items would reveal the true identity 

of the person wearing the shorts and the identity of the person who actually killed 

the victim.

2 

1 S.C. Code Ann. §§ 17-28-10 to -120 (2014 & Supp. 2023). 

2 At oral argument, Moses' counsel explained that Moses was likely confused by the 

fact that multiple DNA swabs were taken from the bloody shorts and that Moses 

thought that there were two pairs of shorts somehow involved in the State's case. 

Because Moses admitted at trial that he was wearing the bloody shorts of which he 

now seeks DNA testing, counsel explained that the focal point of Moses' case was 

testing the victim's fingernail clippings, which he asserts could potentially show that 

an interceding actor caused the victim's death. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Moses' application sat pending for over two years, apparently owing to 

confusion over how the application was to be handled. On August 28, 2019, the 

circuit court held an evidentiary hearing in which Moses' counsel began by advising 

the court he had been unable to verify that the items for which testing was sought 

still existed.3 The parties then spent most of the hearing arguing whether identity 

was a critical factor at Moses' trial. On this point, Moses argued that DNA evidence 

from the shorts and the victim's fingernails would reveal that the victim had been in 

another altercation after his fight with Moses. The State argued Moses' testimony at 

trial that he engaged in an altercation with the victim before his death and that he 

stashed the bloody shorts at a friend's house precluded a finding that identity was an 

issue during the trial. 

After taking the parties' arguments under advisement, the circuit court issued 

an order on December 16, 2019, denying Moses' application. Moses concedes on 

appeal that no objections were raised at the hearing nor was the circuit court asked 

to reconsider its order. Indeed, Moses reads the record as making clear "that 

everyone involved, from [Moses'] DNA counsel to the [s]olicitor to the circuit 

court[,] did not properly address [Moses'] DNA application." Moses sought 

certiorari from this court pursuant to Rule 247(a), SCACR,4 and this court granted 

the petition on June 16, 2021. 

ISSUE ON APPEAL 

Did the circuit court err in finding Petitioner failed to meet the requirements 

of section 17-28-40(C) of the South Carolina Code, which enumerates the required 

contents of the DNA testing application, rather than the requirements of section 

17-28-90(B), which specifies the factors to be proved at the hearing on the DNA 

testing application? 

3 Under the DNA Testing Act, applicants have the burden of showing the items for 

which testing is sought still exist. § 17-28-90(B) ("The court shall order DNA testing 

of the applicant's DNA and the [evidence] . . . upon a finding that the applicant has 

established each of the . . . factors by a preponderance of the evidence[.]"). 

4 Rule 247(a), SCACR, provides: "A final order of the circuit or family court denying 

or granting DNA testing under the . . . DNA Testing Act . . . shall be reviewed upon 

petition of either party for a writ of certiorari according to the procedure set forth in 

this rule." 
 

 

 

 

 

 

 

 

 

 

 

STANDARD OF REVIEW 

Section 17-28-90(G) of the South Carolina Code provides that both the State 

and the applicant have a right to appeal a final order granting or denying an 

application under the DNA Testing Act. Our research has revealed no published 

appellate court decision defining the standard of review for such appeals. 

Applications under this statute are in some ways similar to applications seeking 

post-conviction relief (PCR) under the Uniform Post-Conviction Procedure Act (the 

PCR Act).

5 

However, whereas the PCR Act provides that "[a]ll rules and statutes 

applicable in civil proceedings are available to the parties," the DNA Testing Act 

provides that "[a]ll rules and statutes applicable in criminal proceedings are available 

to [the parties]." Compare § 17-27-80 (emphasis added), with § 17-28-90(A) 

(emphasis added). This key difference between the two acts justifies applying the 

standard of review for criminal proceedings to the present case. "In criminal cases, 

the appellate court sits to review errors of law only." State v. Elwell, 403 S.C. 606, 

609, 743 S.E.2d 802, 804 (2013). "Therefore, this [c]ourt is bound by the trial court's 

factual findings unless the appellant can demonstrate that the trial court's conclusions 

either lack evidentiary support or are controlled by an error of law." Id. 

LAW AND ANALYSIS 

The State contends that Moses' arguments are unpreserved while Moses asks 

this court to relax preservation rules to reach the merits of his claims. We agree with 

the State and hold Moses' arguments on appeal are not preserved for appellate 

review. 

South Carolina appellate courts do not follow the "plain error" standard when 

sitting in review of a trial court's decision. State v. Sheppard, 391 S.C. 415, 421, 

706 S.E.2d 16, 19 (2011) ("[T]he plain error rule does not apply in South Carolina 

state courts."). "Instead, a party must have a contemporaneous and specific objection 

to preserve an issue for appellate review." Id. "[I]t is a litigant's duty to bring to the 

court's attention any perceived error, and the failure to do so amounts to a waiver of 

the alleged error." State v. Geer, 391 S.C. 179, 193, 705 S.E.2d 441, 448 (Ct. App. 

2010) (quoting S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 

301, 641 S.E.2d 903, 907 (2007)). However, appellate courts are to be "'mindful of 

5 S.C. Code Ann. §§ 17-27-10 to -160. 
 

 

 

 

 

 

 

 

 

 

 

the need to approach issue preservation rules with a practical eye and not in a rigid, 

hyper-technical manner'" and thus should not apply preservation rules in a manner 

that "elevat[es] form over substance to trap trial lawyers so as to prevent the appeal 

of a legitimate issue." State v. Morales, 439 S.C. 600, 609, 889 S.E.2d 551, 556 

(2023) (quoting Herron v. Century BMW, 395 S.C. 461, 470, 719 S.E.2d 640, 644 

(2011). 

"One primary purpose of our issue preservation rules is to 'give the trial court 

a fair opportunity to rule.'" Id. (quoting Atl. Coast Builders & Contractors, LLC v. 

Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012)). Second, preservation rules 

work to ensure that "both parties are aware of the nature of the objection such that 

they may present their best arguments addressing that objection." Id. Our supreme 

court has assessed requests to set aside preservation in the interest of justice against 

both of these high-level goals. See id. (noting that the court's refusal to ignore issue 

preservation rules "serves each [of the two aforementioned] purposes"). 

Moses asks this court to analyze the merits of his appeal, regardless of whether 

the issues are preserved, in the interest of justice. To support this, Moses cites state 

and federal case law supporting the proposition that at times, "the interests of justice 

require . . . courts to be flexible with procedural requirements before . . . applicants 

suffer procedural default on substantial claims." Mangal v. State, 421 S.C. 85, 99, 

805 S.E.2d 568, 575 (2017). 

In Simmons v. State, our supreme court took the "extraordinary action" of 

remanding a PCR case to the lower court even though it found "the State [was] 

technically correct" that the applicant's issue on appeal was not preserved. 416 S.C. 

584, 592–93, 788 S.E.2d 220, 225 (2016). It noted that "[a] remand under these 

circumstances must . . . be granted sparingly and be reserved for the rarest of cases." 

Id. at 593, 788 S.E.2d at 225 (emphasis added). The applicant in Simmons had been 

sentenced to death for murder and filed a PCR application, asserting ineffective 

assistance of counsel, newly discovered evidence, and a claim that he was deprived 

of due process by the State's presentation of false DNA evidence to the jury and its 

failure to disclose exculpatory evidence. Id. at 589, 788 S.E.2d at 223. The PCR 

court vacated the applicant's death sentence and denied the remaining claims, 

including the challenge to the DNA evidence. Id. at 591, 788 S.E.2d at 224. On 

appeal, the State did not deny that "the strength of the State's DNA evidence against 

[the applicant] was misrepresented to the jury," but our supreme court noted that it 

found "no evidence of conscious wrongdoing in the prosecution of [the] case." Id. 

Instead, it attributed the misrepresentation to faulty evidence the State had received 

"concerning a complex matter." Id. Finding that the PCR court did not make 
 

 

 

 

 

 

 

 

 

 

 

 

specific findings of fact, our supreme court vacated the PCR court's order in part and 

remanded it for further factual findings. Id. at 592–93, 788 S.E.2d at 225.6 

Simmons and similar cases cited by Moses are distinguishable from the instant 

case. Whereas in Simmons, the PCR court failed to make sufficient factual findings 

required of it by the law, Moses makes no allegation here that the circuit court did 

not make the factual findings required of it under the DNA Testing Act. Rather, 

Moses essentially argues the circuit court erred by deriving the factors it applied 

from the wrong part of the DNA Testing Act.7 Only under extraordinary 

circumstances—such as when a PCR court fails to make sufficiently specific 

findings of fact—do the interests of justice permit a court to reach unpreserved 

issues. See Fishburne v. State, 427 S.C. 505, 517, 832 S.E.2d 584, 590 (2019) 

(Hearn, J., concurring) ("Although we have overlooked the lack of a [posttrial] 

motion in the past, . . . those decisions clearly represent extraordinary 

circumstances. Our issue preservation rules are well-settled. [We depart] from 

[these rules] only in exceptional circumstances."). 

Softening preservation rules for Moses' claim would be tantamount to 

employing the plain error rule. Although—as discussed—our jurisprudence 

sometimes permits reaching unpreserved issues to avoid hyper-technical 

applications of preservation rules, the case at hand is not one in which preservation 

6 Simmons is in the same vein as a line of cases stemming from McCray v. State, 305 

S.C. 329, 408 S.E.2d 241 (1991). In McCray, our supreme court took the 

opportunity to remind PCR courts of their obligation to "make specific findings of 

fact, and state expressly [their] conclusions of law, relating to each issue presented." 

305 S.C. at 330, 408 S.E.2d at 241 (quoting S.C. Code Ann. § 17-28-80). Finding 

that "[t]he PCR court's conclusions regarding ineffective assistance are insufficient 

for appellate review and fail to meet the standard set forth in the statute," our 

supreme court remanded the case. Id. A year later, in Pruitt v. State, our supreme 

court expressed "concern with the increasing number of orders in PCR proceedings 

that fail to address the merits of the issues raised by the applicant" and vacated and 

remanded the case to the PCR court for additional findings. 310 S.C. 254, 255–56, 

423 S.E.2d 127, 128 (1992) (per curiam). 

7 Specifically, Moses argues the circuit court relied on section 17-28-40(C), which 

sets out factors for evaluating an application under the DNA Testing Act, instead of 

section 17-28-90(B), which specifies the factors to be applied to a hearing held under 

the DNA Testing Act. 
 

 

 

 

 

 

 

rules must be tortured or even construed strictly in order to function as a bar to 

Moses' claim. Rather, Moses did not object during the DNA testing hearing. In 

short, the issues Moses brings on appeal were neither raised to nor ruled on by the 

circuit court. Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) 

("It is axiomatic that an issue cannot be raised for the first time on appeal, but must 

have been raised to and ruled upon by the trial judge to be preserved for appellate 

review."). The State had no opportunity to address any of the arguments about the 

circuit court's order that Moses makes on appeal because this appeal is the first time 

he has raised them. The same can be said about the circuit court. See Queen's Grant 

II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 

902, 919 (Ct. App. 2006) ("Issue preservation rules are designed to give the trial 

court a fair opportunity to rule on the issues, and thus provide us with a platform for 

meaningful appellate review."). Thus, Moses failed to preserve the errors he assigns 

for appellate review and no extraordinary circumstances warrant this court to set 

aside preservation rules and reach the issues. 

CONCLUSION 

For the foregoing reasons, the circuit court's order is 

AFFIRMED. 

THOMAS and KONDUROS, JJ., concur.