THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Adam Rowell, Appellant.

Appellate Case No. 2018-000022

Appeal From Greenwood County Donald B. Hocker, Circuit Court Judge

Opinion No. 5832 Heard September 22, 2020 – Filed July 21, 2021 Previously Withdrawn, Substitut ed and Refiled August 25, 2021 Withdrawn, Substituted, and Refiled March 02, 2022

AFFIRMED

Billy J. Garrett, Jr., of The Garrett Law Firm, PC, Carson McCurry Henderson, of The Henderson Law Firm, PC, Jane Hawthorne Merrill, of Hawthorne Merrill Law, LLC, and Clarence Rauch Wi se, all of Greenwood, all for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jonathan Scott Matthews, both of Columbia, and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

LOCKEMY, A.J.: Adam Rowell appeals his conv ictions for felony driving under the influence (DUI) resulting in death and felony DUI resulting in great bodilyinjury. On appeal, Rowell argues the trial court abused its discretion in admitting blood samples into evidence without the proper chain of custody and because the samples were taken (1) af ter 50% of Rowell's blood vol ume was replaced, and (2) after 150% of Rowell's blood volume was repl aced. Rowell also asserts the trial court erred in failing to conduct an eviden tiary hearing with a juror who failed to disclose his pending criminal charge s during voir dire. We affirm.

FACTS/PROCEDURAL HISTORY

On November 15, 2014, Rowell was in a head-on automobile accident, which seriously injured Matthew Sanders and killed Jeremy Cockre ll. Cockrell was driving a red pickup truck with Sanders in the passenger seat, and Rowell was in a dark blue pickup truck. Following the collision, Rowell was indicted for felony DUI resulting in death and felony DUI resulting in great bodily injury.
During voir dire, the trial c ourt asked, "[Has] any member of the jury panel or any member of your immediate family member s or close personal friends ever been arrested and charged with any criminal o ffense through whatever state, local or federal law enforcement agency?" The tr ial court asked another nine questions before asking the jurors to approach the bench if any of the questions applied to them. Juror 164 did not respond and was seated on the jury.

At trial, Sanders testified he and Co ckrell were driving to Greenwood when Rowell's truck crashed into them. Cockrell died from blunt force trauma at the scene. Officer Kelly Anderson, a memb er of the Multidisciplinary Accident Investigation Team (MAIT), explained the collision occurred because Rowell's truck drifted into Cockrell's lane. Acco rding the MAIT investigation, one second prior to the collision, Rowell was trave ling at sixty-nine miles per hour and Cockrell's truck was traveling at twenty-four miles per hour.
Emergency responders testified they could smell alcohol when they arrived. Open and unopened beers were in Rowell's tr uck, spilled alcohol was on Rowell's floorboard, and multiple beer cans were on the ground n ear the collision. Rowell, who was also seriously injured in the collision, received 2000 milliliters of intravenous (IV) fluid and a 500 milliliter blood transfusion on site, and was airlifted to Greenville Memorial Hospital. The flight records show the helicopter arrived at the hospital at 8:59 p.m.

The trial court held an in camera chain of custody hearing to address whether blood drawn from Rowell when he arrived at the hospital (Sample A) was admissible. Angela Waites, the flight nu rse, stated it took twenty-four minutes toget Rowell to Greenville Memorial Hospita l. She testified she observed Amanda Baker, an emergency room (ER) nurse, dr aw Sample A and believed it was drawn from Rowell's right arm because Baker was standing on Rowell's right-hand side.

Nurse Baker testified she did not recall Ro well as a patient because she cares for and draws blood samples from hundreds of patients. She explained that Rowell's medical documentation indicated Dr. Brad ley Snow took Sample A from a central line and handed it to her. Nurse Baker te stified that after blood is drawn from a central line, a technician take s it to the lab. Bill Evans was the technician listed on the medical records. Rowell's medical records indicated his blood was drawn at 9:08 p.m.; however, the hospital's audit tra il indicated it was drawn at 8:54 p.m.

Robert Smith, the lab technician at Green ville Memorial Hospital, testified that according to the audit trail fo r Sample A, he received it in the lab at 9:24 p.m. Smith did not remember receiving this sa mple specifically because of the large number of specimens he regularly tested. He testified it was hospital policy to hand-deliver ER specimens to the la b and test them right away.
Dr. John Reddic, an expert in clinical chemistry from Greenville Memorial Hospital, testified the hospital's audit tra il showed Nurse Baker drew Sample A and Robert Smith received it for testing. Ac cording to Reddic, Sample A showed a blood alcohol concentration (BAC) betw een .175 and .189. Dr. Reddic noted Sample A was controlled a nd handled within the hospital's normal protocol.
Rowell argued the conflicting time reports in the medical records suggested there were two separate blood draws, one at 8: 54 p.m. and one at 9:08 p.m. However, the State asserted there was only one audit trail for blood and the records did not reflect a second draw. The trial court ru led the State established the chain of custody, the audit trail reflected an 8:54 p.m. blood draw, and a discrepancy in the notation of the time of the blood draw did not render the evidence inadmissible. During trial, the relevant medical witnesse s testified similarly to their in camera testimony.
Dr. Reddic testified that a "clock slop" time discrepancy of several minutes can occur where records have been created based on clocks th at were not synced. He also explained there is a lag time betw een when a doctor orde rs a blood draw, the drawing of the blood, and the subsequent transport of the blood draw to the lab, and "thirty minutes is appropriate."
Dr. Snow, Rowell's surgeon, testified th at during surgery, Rowell received 3,150 milliliters of blood, 360 milliliters of pl asma, 3,000 milliliters of saline, and 3,000milliliters of Plasma-Lyte. He stated 53% of Rowell's blood was replaced and he would have died without the transfusion.
After Rowell's surgery, Officer Smith acqu ired a search warrant for Rowell's blood (Sample B). Rowell objected to the admission of Sample B, arguing that when it was taken, 52% of his blood had been repl aced and a BAC test of that blood would be unreliable. The trial court held another in camera hearing.

Dr. Jimmie Valentine, a de fense expert, testified that when Sample B was drawn from Rowell, he had received fluids that totaled 161.7% of his blood volume. He explained Sample B was not an accurate indication of what Rowell's blood was like during the collision. He stated that "any value that one would find or try to attach to [Sample B] has ve ry little scientific meaning b ecause of th[e] volume that [went] into him." Dr. Valentine explai ned Sample B included 4.9 milligrams per liter of Benadryl, which was a toxic dose, and Rowell's medical records indicated the hospital did not give him Benadryl. Further, he expl ained Sample B had acetones, which was indicative of someone who was diabetic and Rowell's medical records did not indicate he had diabetes . Dr. Valentine testified the methodology and science used in the BAC testing wa s reliable; however, he questioned the validity of the results.
Dr. Valentine stated the BAC from Sample B was consistent with Rowell's blood having been diluted by transfusions. He explained a person with a BAC of .18 would normally have a BAC of .12 after four hours and that the dilution of the blood due to a transfusion could explai n why Sample B's BAC was .09. Dr. Valentine agreed that Sample B would have included a perc entage of Rowell's blood that had remained in his sy stem after the transfusion.

The trial court held that because Dr. Vale ntine did not attack the validity of the methodology of the test, Sample B was ad missible. Specifically, the trial court clarified it did not find the results re liable, only that the methodologies and procedures used in the testing were reliable.

Rowell testified he did not have diabetes, nor did he use Benadryl. He stated he drank twenty-four ounces of beer approx imately four hours before the accident. The jury convicted Rowell of felony DUI resulting in death and felony DUI resulting in great bodily injury. The trial court sentenced him to thirteen years ' imprisonment. After trial, Rowell learned Juror 164 had been arrested and charged with a crime in Greenwood County shortly before his trial. Rowell moved for a new trial, arguing—among other things—that Juror 164 failed to disclose his arrestduring voir dire. However, Rowell did not request that the trial court conduct an evidentiary hearing.
At the hearing on Rowell's motion for a ne w trial, he argued he would not have seated Juror 164 on the jury had he known of his arrest because the juror could have had an incentive to help the State. Rowell stated he did not contact Juror 164 because Juror 164 was represented by couns el, who told them Juror 164 would not be speaking with them. Rowell did not request a separate evidentiary hearing on the juror issue and did not subpoena Juror 164. Following the hearing and before the trial court issued an order, Rowell sent an email to the trial court requesting a hearing with the juror.

The trial court denied Rowell's motion for a ne w trial. The trial court stated that on its face, the question asked during voir di re was comprehensib le to the average juror; however, the court noted that it was th e first of ten questions the juror had to remember and the amount of time betw een question and answer "could be confusing to the average juror." The trial court further opined because an arrest is a public arrest record, the juror did not co nceal his arrest. This appeal followed.

ISSUES ON APPEAL

1. Did the trial court err by admitting Sample A into evidence because the chain of custody was insufficient?

2. Did the trial court err by admitting Sample A into evidence because 50% of Rowell's blood had been replace d when Sample A was taken?

3. Did the trial court err by admitting Sample B into evidence because 150% of Rowell's blood had been replaced when Sample B was taken and the sample contained Benadryl and acetones?

4. Did the trial court err by failing to c onduct an evidentiary hearing regarding a juror who failed to disclose his pending criminal charges?

STANDARD OF REVIEW
"In criminal cases, appellate courts sit to review errors of law only . . . ." State v. Robinson , 410 S.C. 519, 526, 765 S.E.2d 564, 568 (2014). "Because the admission of evidence is within the sound discretion of the trial court, a ppellate courts should not reverse the decision of the trial c ourt absent an abuse of discretion." Id . "Thedenial of a motion for a new trial will not be reversed absent an abuse of discretion." State v. South , 310 S.C. 504, 507, 427 S.E.2d 666, 668 (1993).

LAW/ANALYSIS

I. Chain of Custody for Sample A
Rowell argues the inconsiste ncy between the time that he landed at Greenville Memorial Hospital and the time Sample A was taken established it was factually impossible for Sample A to be Rowell's bl ood. He asserts the chain of custody was not complete because Bill Evans walked Sa mple A from Nurse Bak er to the lab but never testified. Rowell also asserts an unidentified person brought the blood from the ER to the lab and the sample was unaccounted for during a period of thirty minutes. We disagree.
Our supreme court has held, "a party offe ring into evidence fungible items such as drugs or blood samples must establish a complete chain of custody as far as practicable ." State v. Pulley , 423 S.C. 371, 377, 815 S.E.2d 461, 464 (2018) (emphasis added) (quoting State v. Hatcher , 392 S.C. 86, 91, 708 S.E.2d 750, 753 (2011)). "Courts have abandoned inflex ible 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.
Our supreme court has stated it has "never held the chain of custody rule requires every person associated with the procedure be available to testify or identified personally, depending on the facts of the case." Id. at 93, 708 S.E.2d at 754 (quoting S.C. Dep't of Soc. Servs. v. Cochran , 364 S.C. 621, 629, 614 S.E.2d 642, 646 (2005)). "[W]e have consistently held that th e chain of custody need be established only as far as practicable, a nd we reiterate that every person handling the evidence need not be identified in all cases." Id. at 95, 708 S.E.2d at 755.
"Whether the chain of custody has been es tablished as far as practicable clearly depends on the unique factual ci rcumstances of each case." Id. at 94, 708 S.E.2d at 754 (quoting Cochran , 364 S.C. at 629 n.1, 614 S.E.2d at 646 n.1). "The trial [court's] exercise of discretion must be reviewed in the light of the following factors: '. . . the nature of the ar ticle, the circumstances surrounding the preservation and custody of it, and the lik elihood of intermeddlers tampering with it." Id. at 94-95, 708 S.E.2d at 754-55 (omission in original) (quoting United States v. De Larosa , 450 F.2d 1057, 1068 (3d Cir. 1971))."In examining issues regarding the chai n of custody, a mere suggestion that substitution could possibly have occurred is not enough to establish a break in the chain of custody." Id . at 94, 708 S.E.2d at 754.

We hold the trial court did not err in ad mitting Sample A. During the in camera hearing, the State presented evidence th at (1) Sample A was drawn by Dr. Snow via a central line; (2) it was handed to Nu rse Baker; (3) Bill Evans was on duty and walked Sample A to the lab, and (4) Robert Smith, the la b technician, received the blood and facilitated the tes ting. This evidence identified who was in possession of Sample A. Although Evans did not tes tify and most of the witnesses in the chain did not recall these specifics, the State established through testimony and documentation Sample A's chain of cust ody as far as practicable given the circumstances.
Further, the circumstances surrounding th e preservation and custody of Sample A diminished the likelihood it was tampered with. See Hatcher , 392 S.C. at 94-95, 708 S.E.2d at 754-55 ("The trial [court's] ex ercise of discretion must be reviewed in the light of the following factors: . . . the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it." (omission in original) (quoting De Larosa , 450 F.2d at 1068)). Here, Sample A was collected for medical purposes to sa ve Rowell's life and not for any investigative purpo se, which makes it unlikely it was tampered with. Id. at 95, 708 S.E.2d at 755 ("The ultimate goal of chain of custody requirements is simply to ensure that the item is what it is purported to be."); cf. Ex parte Dep't of Health & Envtl. Control , 350 S.C. 243, 250, 565 S.E.2d 293, 297 (2002) ("The trustworthiness of medical records is pres umed, based on the fact that the test is relied on for diagnosis a nd treatment.").
As to the timing of the draw for Sample A, the inconsistency within the medical records and flight records regarding th e landing time and the time of the blood draw did not establish either a break in the chain of custody or that the blood was from someone else. The factual circumstan ces of this case reflect that the exact syncing of times between me dical and flight personnel records was unlikely. A brief time discrepancy betwee n organizations does not a lter the chain of custody analysis because each person who possessed the sample was identified. See Hatcher , 392 S.C. at 94, 708 S.E.2d at 754 ("Whether the chain of custody has been established as far as practicable clearly depends on the unique factual circumstances of each case." (quoting Cochran , 364 S.C. at 629 n.1, 614 S.E.2d at 646 n.1)); State v. Patterson , 425 S.C. 500, 508, 823 S.E.2d 217, 222 (Ct. App. 2019) ("Minor discrepancies in the chain of custody imp licates the credibility of the evidence, but does not rend er the evidence inadmissibl e."). This discrepancy,as well as the discrepancy of thirty minutes between drawing the blood and delivery to the lab, goes to the weight and credibility of the evidence, not its admissibility. See State v. Johnson , 318 S.C. 194, 196, 456 S.E.2d 442, 444 (Ct. App. 1995) (holding a two-da y discrepancy in the chai n of custody regarding the dates an investigator turned in drug ev idence to the evidence custodian did not establish the drugs were inadmissible); id. ("A reconciliation of this [two-day] discrepancy was not necessary to estab lish the chain of custody, but merely reflected upon the credibility of the evid ence rather than its admissibility."). Therefore, the trial court did not abuse its discretion in admitting Sample A into evidence. 1

II. Blood Transfusion and Testing of Sample A
Rowell argues the trial cour t erred in admitting Sample A into evidence because roughly half his blood was replaced with liquids prior to the hospital's blood draw. He asserts the State failed to establish the reliability of the BAC test after he received a transfusion. We find th is issue unpreserved for our review.

Rowell never raised to the trial court th e issue that a blood transfusion caused Sample A's BAC testing results to be unr eliable. At trial, Rowell extensively challenged the chain of custody for Samp le A; however, he never objected to Sample A's admission on the basis that th e test was unreliable because he had previously received 500 milliliters of blood and 2000 milliliters of IV fluids. Thus, this issue was not preserved for appellate review because this argument was not raised to and ruled on by the trial court. See State v. Dunbar , 356 S.C. 138, 142,

1 The State argues the trial court did not err in admitting Sample A into evidence based on our supreme court's opinion in Jamison v. Morris , 385 S.C. 215, 227, 684 S.E.2d 168, 174 (2009) (stating that when a blood sample is drawn at a hospital for medical purposes as part of its medical tr eatment of a patient, the results would have been a part of the pa tient's medical record and pr esumed reliable as a business record regardless of a chain of custody) . Although we acknowledge the State submitted a supplemental citation to Jamison prior to oral argument and raised this argument in its petition for rehearing, the St ate did not raise this argument to trial court or in its appellate brief. Thus, we decline to address this argument on the merits. See I'On, L.L.C. v. Town of Mt. Pleasant , 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) ("Of course, a respondent may abandon an additional sustaining ground . . . by failing to raise it in the appellate brief."); see also Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be cons idered which is not set forth in the statement of the issues on appeal.").587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for appellate review, it must have been ra ised to and ruled upon by the trial [court]. Issues not raised and ruled upon in the trial court w ill not be considered on appeal.").

III. Blood Transfusion and Testing of Sample B
Rowell argues the trial cour t erred in admitting Sample B into evidence because more than 150% of his blood had been re placed by blood and ot her fluids before Sample B was drawn. Even if the admission of Sample B was so unreliable that its admission was error, this error was harmle ss. The jury received clear evidence of Rowell's intoxication from Sample A, the ev idence of open containers in his truck, the alcohol spilled on the floor of his tr uck, and testimony that his breath smelled of alcohol at the accident scene. See State v. Black , 400 S.C. 10, 27, 732 S.E.2d 880, 890 (2012) ("An appellate court ge nerally will decline to set aside a conviction due to insubstantial e rrors not affecting the result."); State v. Howard

, 296 S.C. 481, 485, 374 S.E.2d 284, 286 (1988) ("Where guilt is conclusively proven by competent evidence and no rati onal conclusion can be reached other than that the accused is guilty, a convi ction will not be se t aside because of insubstantial errors not a ffecting the result.").

IV. Juror Concealment
Rowell argues the trial court erred in denying his request for an evidentiary hearing as to Juror 164's failure to disclose his pending criminal charges during voir dire. Rowell asserts the trial court abused its discretion in failing to hold a hearing because without such hearing, the trial co urt could not determine the basis for Juror 164's failure to answer truthfully. We disagree.
When a juror conceals information inquired into during voir dire, a new trial is required only when the court finds the juror intentionally concealed the information, and that the information concealed would have supported a challenge for cause or would have been a material factor in the us e of the party's peremptory challenges.

State v. Woods , 345 S.C. 583, 587, 550 S.E.2d 282, 284 (2001). "Whether a juror's failure to respond is intentional is a fact intensive determination that must be made on a case-by-case basis." State v. Sparkman , 358 S.C. 491, 496, 596 S.E.2d 375, 377 (2004). "The inquiry must focu s on the character of the concealed information, not on the mere fact that a concealment occurred." State v. Kelly

, 331S.C. 132, 147, 502 S.E.2d 99, 106 (1998) (quoting Thompson v. O'Rourke , 288 S.C. 13, 15, 339 S.E.2d 505, 506 (1986)). "If the court finds no intentional concealment occurred, the inquiry ends there." Lynch v. Carolina Self Storage Ctrs., Inc. , 409 S.C. 146, 155, 760 S.E.2d 111, 116 (Ct. App. 2014).

In Woods , our supreme court held,

intentional concealment o ccurs when the question presented to the jury on voir dire is reasonably comprehensible to the averag e juror and the subject of the inquiry is of such signifi cance that the juror's failure to respond is unreasonable. Unintentional concealment, on the other hand, occurs wh ere the question posed is ambiguous or incomprehensible to the average juror, or where the subject of the inquiry is insignificant or so far removed in time that the juror's failure to respond is reasonable under the circumstances.

345 S.C. at 588, 550 S.E.2d at 284.

We find the trial court did not abuse its discretion in failing to conduct an evidentiary hearing with Juror 164. See South , 310 S.C. at 507, 427 S.E.2d at 668 ("The denial of a motion for a new trial wi ll not be reversed absent an abuse of discretion."). Nothing required the trial cour t or a party to hail a juror into court to testify on the issue of juror misconduct un der the circumstances presented here. See State v. Aldret , 333 S.C. 307, 315, 509 S.E. 2d 811, 815 (1999) (holding the trial court may, in its discretion, consider juror affidavits on the issue of premature jury deliberations and if the trial court finds the affidavits credible and indicative of misconduct it should hold an evidentiary hearing to assess whether such deliberations occurred); Lynch , 409 S.C. at 159 n.2, 760 S.E.2d at 119 n.2 (noting "a trial court is not obligated to take juror testimony when th e court determines it can rule" on the misconduct issue without it); id. at 155, 760 S.E.2d at 166 (stating "[i]f the court finds no inte ntional concealment occurred, the inquiry ends there"). In Woods , our supreme court rejected a juror' s testimony as to why her failure to respond to two questions aske d during voir dire was uni ntentional. 345 S.C. at 589-90, 550 S.E.2d at 285. There, the juror failed to disclose that she worked as a volunteer victims' advocate for the pr osecuting solicitor's office and testified during an evidentiary hearing that she ei ther did not hear the questions asked during voir dire or did not realize they applied to her. Id. at 585-87, 550 S.E.2d at 283-84. Despite this testimony, our supr eme court found the juror's failure to respond was intentional because the que stions at issue "were reasonablycomprehensible and should ha ve elicited a positive respons e from [the j]uror." Id. at 589-90, 550 S.E.2d at 285.
Here, after reviewing the voir dire proceedi ngs with the court reporter to ensure it correctly recalled the seque nce of events, the trial court concluded that the question, although straightforward when vi ewed in isolation, was presented in a way that could be confusing to the aver age juror. The trial court therefore concluded Juror 164's failure to disc lose his pending criminal charges was unintentional. Because the trial cour t's conclusion was based upon its own observations of voir dire, the record suppor ts the trial court's conclusion, and Juror 164's testimony was not necessary for the trial court to rule on the issue. Thus, we find the trial court did not err in failing to conduct an evidentiary hearing and did not abuse its discretion in denying Rowell's motion for a new trial based on Juror 164's concealment.

CONCLUSION
Based on the foregoing, we find the trial court did not err in admitting Sample A into evidence and any potential error as to Sample B was harmless. Further, we find the trial court did not abuse its di scretion in denying Rowell's motion for a new trial based on Juror 164's concealment. Accordingly, Rowell's convictions are

AFFIRMED.

KONDUROS and MCDONALD, JJ., concur.