Stat v. Washington, Appellate Case No. 2016-000907

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Decision Date08 January 2020
PartiesThe State, Respondent, v. Shane Alexander Washington, Appellant.
Docket NumberAppellate Case No. 2016-000907,Unpublished Opinion No. 2020-UP-003

The State, Respondent,
Shane Alexander Washington, Appellant.

Appellate Case No. 2016-000907
Unpublished Opinion No. 2020-UP-003


Submitted November 1, 2019
January 8, 2020


Appeal From Abbeville County
R. Lawton McIntosh, Circuit Court Judge


Appellate Defender Lara Mary Caudy, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Senior Assistant Attorney General David A. Spencer, both of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

PER CURIAM: Shane Washington appeals his conviction of first-degree criminal sexual conduct with a minor, for which he was sentenced to thirty years' imprisonment. Washington argues the circuit court erred in 1) admitting evidence

Page 2

of subsequent acts of unindicted sexual misconduct; and 2) refusing to enter a directed verdict when the State failed to present evidence of sexual battery on the date alleged in the indictment. We affirm.


On September 3, 2010, Minor told her father that Washington had been sexually assaulting her since the beginning of July, most recently on September 2, 2010. Minor's father reported the abuse to the police on the same day and, on September 9, 2011, Washington was indicted for first-degree criminal sexual conduct with a minor. On April 6, 2015, Washington's case proceeded to trial, but Washington could not be located. Consequently, Washington was tried in absentia.

During the trial, the State presented Minor's October 14, 2010 forensic interview. In the video, Minor described the first instance of abuse. After this description, Washington moved to exclude the remainder of the video from evidence, arguing the remaining instances of abuse described in the video constituted subsequent, unindicted crimes. Washington argued that because he was indicted for conduct on July 1, 2010, the first instance of abuse described in the video was the crime for which he was indicted. Thus, Washington argued, the subsequent crimes were irrelevant to the indicted offense and overly prejudicial.

The circuit court determined that the remainder of the forensic interview was admissible, reasoning the bad acts evidence was part of the res gestae and demonstrated motive, intent, and lack of mistake. Before the remainder of the video was published, the circuit court instructed the jury that, to the extent any evidence was presented other than the alleged acts on or around July 1, 2010, it should not consider Washington's guilt or innocence in committing these acts, but should only consider the acts for the purpose of determining motive, intent, absence of mistake, or to present a setting of the case and its environment.

During the remainder of the video, Minor described four instances of abuse. First, Minor described the last instance of abuse, indicating that Washington had put his "private" in her butt. Additionally, Minor described another instance of abuse, asserting that Washington had placed his "private" in her butt, and two additional instances in which Washington made Minor perform fellatio.

After the video concluded, Minor testified that Washington began abusing her around July 2010, when she was seven years old, by touching "both spots on the outside," that he put his "private" in her butt multiple times, and that such abuse occurred in her mother's bathroom and in the "tattoo room." Minor also indicated

Page 3

that Washington put his "private" in her butt at least once in July, around the time of the first assault, further indicating that it occurred "in the summertime" when she was not in school.

After Minor's testimony, Washington moved for a directed verdict, arguing there was no evidence of sexual battery occurring on or about July 1, 2010. Washington again argued that because the indictment read "on or about July 1, 2010," it could only be referring to the first instance of abuse. The State argued the date in the indictment was not a material element of the crime and that the indictment was a charging instrument that merely needed to put Washington on notice. Ultimately, the circuit court denied the directed verdict.

After deliberating, the jury found Washington guilty of first-degree criminal sexual conduct with a minor, specifically finding "the defendant committed the acts upon Minor, fellatio, any intrusion however slight into any part of her genital or anal openings or any object being inserted into her genital or anal openings." After the jury returned its verdict, the sentence was sealed. On April 20, 2016, the Honorable Donald B. Hocker1 unsealed Washington's sentence, which was thirty years' imprisonment. This appeal followed.


1. Did the circuit court err in admitting subsequent acts of unindicted sexual misconduct?

2. Did the circuit court err in failing to enter a directed verdict on the ground that the State did not present evidence of sexual battery on the date alleged in the indictment?


"In criminal cases, the appellate court sits to review errors of law only." State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). Therefore, "[an appellate court is] bound by the [circuit] court's factual findings unless they are clearly erroneous." Id. at 6, 545 S.E.2d at 829.

Admissibility of subsequent bad acts

"This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases." Id. "The

Page 4

admission of evidence is within the discretion of the [circuit] court and will not be reversed absent an abuse of discretion. An abuse of discretion occurs when the conclusions of the [circuit] court either lack evidentiary support or are controlled by an error of law." State v. Goodwin, 384 S.C. 588, 601, 683 S.E.2d 500, 507 (Ct. App. 2009) (quoting State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006)). Accordingly, "[an appellate court] does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the [circuit court]'s ruling is supported by any evidence." Wilson, 345 S.C. at 6, 545 S.E.2d at 829. As such, "[i]f there is any evidence to support the admission of [] bad act evidence, the [circuit court]'s ruling will not be disturbed on appeal." Id.

Unfair Prejudice

"A [circuit court]'s decision regarding the comparative probative value and prejudicial effect of relevant evidence should be reversed only in exceptional circumstances." State v. Sweat, 362 S.C. 117, 129, 606 S.E.2d 508, 514 (Ct. App. 2004). "If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a [circuit] court is reviewed by an appellate tribunal." Id. (quoting State v. Hamilton, 344 S.C. 344, 358, 543 S.E.2d 586, 598 (Ct. App. 2001), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005)).

Directed Verdict

"When a motion for a directed verdict of acquittal is made in a criminal case, the [circuit] court is concerned with the existence or non-existence of evidence, not its weight." State v. Brown, 360 S.C. 581, 586, 602 S.E.2d 392, 395 (2004). "On appeal from the denial of a motion for directed verdict, [an appellate c]ourt must view the evidence in a light most favorable to the State." Id. An appellate court must find that a case was properly submitted to the jury when "the State presents any evidence [that] reasonably tends to prove the defendant[']s guilt, or from which the defendant[']s guilt can be fairly and logically deduced . . . ." Id.; State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct. App. 2002) ("If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, th[e appellate c]ourt must find the case was properly submitted to the jury.").


I. Subsequent bad acts

Washington argues the circuit court erred in admitting the remainder of the forensic interview because it constituted evidence of subsequent bad acts. The State

Page 5

argues the circuit court properly admitted the evidence as an exception to Rule 404(b), SCRE, or as part of the res gestae of the case. We agree with the State.

"Generally, South Carolina law precludes evidence of a defendant's prior crimes or other bad acts to prove the defendant's guilt for the crime charged." Sweat, 362 S.C. at 123, 606 S.E.2d at 511; see also State v. Lyle, 125 S.C. 406, 416, 118 S.E. 803, 807 (1923) ("[E]vidence of other distinct crimes committed by the accused may not be adduced merely to raise an inference or to corroborate the prosecution's theory of the defendant's guilt of the particular crime charged."). However, such evidence is admissible

when it tends to establish (1) motive; (2) intent; (3) absence of mistake; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and (5) the identity of the person charged with commission of the present crime.

Sweat, 362 S.C. at 123, 606 S.E.2d at 511; see also Rule 404(b), SCRE ("[Evidence of other bad acts] may . . . be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent."). Additionally, evidence of other bad acts may be admitted under the res gestae theory, which "recognizes [such] evidence . . . may be an integral part of the crime with which the defendant is charged, or may be needed to aid the fact finder in understanding the context in which the crime occurred." State v. King, 334 S.C. 504, 512, 514 S.E.2d 578, 582 (1999).

Before the circuit court may admit bad acts evidence, it must make several determinations: 1) the proffered evidence must be relevant; 2) when a defendant has not been convicted of the bad acts, the evidence of such acts must be clear and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT