State v. Durant
| Decision Date | 06 May 2020 |
| Docket Number | Appellate Case No. 2016-001264,Opinion No. 27964 |
| Citation | 430 S.C. 98,844 S.E.2d 49 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Larry DURANT, Appellant. |
E. Charles Grose, Jr., of Grose Law Firm, of Greenwood, for Appellant.
Attorney General Alan Wilson and Assistant Attorney General William F. Schumacher, IV, both of Columbia, and Solicitor Ernest A. Finney, III, of Sumter, for Respondent.
Appellant Larry Durant was convicted of second-degree criminal sexual conduct (CSC) for sexually abusing a teenage girl in his church office where he served as the pastor. Durant contends the trial court improperly permitted the State to introduce evidence of prior sexual abuse allegations as evidence of a common scheme or plan under Rule 404(b), SCRE, and that the State committed a Brady1 violation by failing to accurately disclose the criminal history of its witness. Applying the framework announced today in State v. Perry , 430 S.C. 24, 842 S.E.2d 654 (2020), we affirm the admissibility of the girls' testimony. Additionally, while the State failed to disclose the criminal background information of its witness, we find this information was not material. Accordingly, we affirm Durant's conviction.
Durant was the founder and lead pastor at Word International Ministries, a church in Sumter. He is a double amputee below his knees and is legally blind. In 2013, four teenage girls who belonged to the church accused Durant of sexually assaulting them. Two of the girls were cousins, another was a God-sister, and the fourth was a close friend. The State indicted Durant on one count of second-degree criminal sexual conduct with a minor, stemming from an alleged sexual battery against one of the girls, and three counts of third-degree criminal sexual conduct pertaining to conduct with the other three. However, the State only proceeded to trial on one count.
During jury selection, the trial court mistakenly advised the jury pool that Durant faced all of the indicted criminal sexual conduct charges and a forgery charge. Defense counsel immediately indicated he had "something to bring up at a later time," and the court held a sidebar. Afterwards, the court explained it erroneously listed the charges Durant faced and instructed the jury not to consider them. Following the jury's dismissal, counsel stated he appreciated the court's curative instruction, but was concerned the jury panel had been tainted. Counsel explained he was "definitely not [asking for] a mistrial," but he was requesting a continuance or a new jury panel. The State responded the court had given a curative instruction almost immediately and clearly stated the charges did not exist. The circuit court acknowledged the mistake was unfortunate but believed the curative instruction "took care of it," and accordingly, denied the motion for a continuance or mistrial.
Because the State sought to call the three other girls who alleged Durant had sexually abused them in a similar fashion, the court held a Lyle2 hearing. According to one, Durant began abusing her when she was 13. She noted that Durant would call her to his office in the back of the church, lock the door, and pray to change her sexual orientation and to protect her against contracting any diseases. She stated that Durant began with oral sex and progressed to vaginal intercourse.
Finally, she testified that Durant had pink pigmentation on his penis.
A second girl testified that Durant began to abuse her when she was 18, and that he would pray for her to make sure she did not contract any diseases and to prevent any harm to her body. She contended Durant digitally penetrated her vagina, which evolved into vaginal intercourse after he said, "God was taking him to a new level." She also testified that Durant would stand behind her during intercourse. She noted that Durant told her that she likely would not be admitted to the college of her choice if she did not have sex with him.
A third girl testified that Durant began abusing her when she was about 14 or 15 years old, and that he would also pray that she would not contract any sexual diseases. Finally, a fourth girl testified that Durant began abusing her when she was 13. She also noted that Durant would pray with her before the abuse, and that his genitalia had pink discoloration. On one occasion when she was pregnant, she stated that Durant told her that he would "bump the seed out." After comparing the similarities and dissimilarities pursuant to State v. Wallace , 384 S.C. 428, 683 S.E.2d 275 (2009), the trial court ruled the girls could testify, as the court remarked, "[f]rankly, it's one of the more compelling 404(b) cases I've ever come across."
At trial, the girls testified, as well as another witness, Ulanda McRae, who is one of the girls' mother. McRae is also the daughter of Lizzy Johnson, a woman Durant previously dated. Durant contended that Johnson, who lived in a property purportedly owned by Durant around the time the allegations surfaced, forged a deed conveying that property to Johnson sometime earlier. When the allegations arose, a deed was recorded conveying the property back to Durant. The defense believed these fraudulent transfers served as a motive to fabricate the girls' allegations of sexual abuse. Defense counsel also stressed the lack of DNA, the fact that Durant was a double amputee and legally blind, suffered from erectile dysfunction
, and had a chronic sexually transmitted disease that none of the alleged victims contracted.
Initially, the jury indicated they were at an impasse and that one juror refused to vote.
The court gave an Allen charge and added that refusing to vote was not an option. Shortly thereafter, the jury found Durant guilty, and the court sentenced him to 20 years' imprisonment.
A few hours after sentencing, defense counsel received a call from McRae's ex-husband inquiring why he did not question McRae about her prior criminal convictions. Defense counsel did not believe McRae had a criminal background because the State previously had disclosed a report from the National Crime Information Center (NCIC) stating she did not have a criminal record. Counsel conducted a SLED CATCH search3 using her name, date of birth, and social security number, which revealed numerous prior convictions under nine aliases for offenses such as shoplifting, fraudulent checks, and forgery spanning from 1991-2005.
Thereafter, Durant moved for a new trial, arguing the State's case was based entirely on credibility and the State's failure to disclose McRae's record prevented him from impeaching a critical witness or further developing his defense that Johnson stole the residence owned by Durant, thereby creating the need to fabricate the charges against him. The State responded it had run McRae's criminal history using the NCIC under the name "McCrae" rather than the correct spelling.4 The State argued its failure to disclose McRae's criminal history did not amount to a Brady violation because it was unaware she had one and, in any event, it was immaterial to Durant's guilt. Durant disagreed, asserting the State was in possession of the criminal history for Brady purposes because it could have run a proper search but failed to do so.
The circuit court found the State was not in possession of the evidence and that it would not have affected the outcome of the trial. While some of McRae's convictions were likely inadmissible, the court noted it may have allowed one or more into evidence that would have been favorable to the defense, but regardless, the case boiled down to whether the jury believed the testimony of the victim and the three other witnesses regarding assaults. Thereafter, Durant appealed to the court of appeals, which transferred the appeal to this Court pursuant to Rule 204(b), SCACR.
I. Did the trial court err by admitting testimony of other sexual assaults pursuant to the common scheme or plan exception under Rule 404(b), SCRE ?
II. Did the circuit court err in denying Durant's motion for a new trial based on a Brady violation?
We begin by noting this Court's opinion in State v. Perry , which overruled Wallace and clarified the proper analysis in determining whether prior acts are admissible pursuant to the common scheme or plan exception. State v. Perry , 430 S.C. 24, 842 S.E.2d 654 (2020). The Court emphasized Lyle's "logical connection" test, whereby "[t]he State must show a logical connection between the other crime and the crime charged such that the evidence of other crimes ‘reasonably tends to prove a material fact in issue.’ " Id. at 30 (quoting Lyle , 125 S.C. at 417, 118 S.E. at 807 ). To prove a sufficient connection, the State must demonstrate that there is "something in the defendant's criminal process that logically connects the ‘other crimes’ to the crime charged." Id. at 27. This requirement filters permissible evidence of prior acts against veiled attempts to introduce propensity evidence. When the State seeks to present this evidence, its burden is a high one, as trial courts must employ "rigid scrutiny." Id. at 30. However, while the proper framework no longer reduces a Rule 404(b) analysis to mathematical exercise where the number of similarities and dissimilarities are counted, the common scheme or plan exception remains viable.
Accordingly, the question then becomes whether the admission of the other three girls' testimony can nonetheless be upheld under Perry . While the trial was conducted under Wallace —the parties argued for and against admissibility using that test and the trial court based its decision on it—we now determine whether the evidence would have been admissible under the framework in Perry . In answering this question, case law guides our analysis.
In State v. McClellan , 283 S.C. 389, 323 S.E.2d 772 (1984), this Court determined the trial court...
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State v. Perry
...law.We provide two other examples of the proper use of the common scheme or plan exception with our opinions today in State v. Durant , 430 S.C. 98, 844 S.E.2d 49 (2020), and State v. Cotton , 430 S.C. 112, 844 S.E.2d 56 (2020).In Durant , the defendant was charged with CSC in the second de......
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...opinion and employed its clarified analytical framework to affirm in both instances. Perry discusses these two cases— State v. Durant , 430 S.C. 98, 844 S.E.2d 49 (2020), and State v. Cotton , 430 S.C. 112, 844 S.E.2d 56 (2020) —as examples of how courts should apply the "logical connection......
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... ... error doctrine should apply to warrant reversal, we find no ... errors. Assuming, arguendo, errors exist, such ... errors would not be so numerous as to invoke the cumulative ... error doctrine. State v. Durant, 430 S.C. 98, 111 ... n.6, 844 S.E.2d 49, 55 n.6 (2020) (noting the trial court did ... not commit any errors and thus, the cumulative error doctrine ... was not applicable, and moreover, the appellant did not ... properly preserve the argument because he did not argue that ... ...
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