State v. Beekman

• Citation: 746 S.E.2d 483,405 S.C. 225
• Decision Date: 22 August 2013
• Docket Number: No. 5145.,5145.
• Parties: The STATE, Respondent, v. Richard Burton BEEKMAN, Appellant. Appellate Case No. 2011–196688.
• Court: Court of Appeals of South Carolina

405 S.C. 225
746 S.E.2d 483

The STATE, Respondent,
v.
Richard Burton BEEKMAN, Appellant.
Appellate Case No. 2011–196688.

No. 5145.

Court of Appeals of South Carolina.

Heard May 8, 2013.
Decided June 26, 2013.
Rehearing Denied Aug. 22, 2013.

[746 S.E.2d 485]

Appellate Defender Dayne C. Phillips, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Christina J. Catoe, both of Columbia, for Respondent.

HUFF, J.

[405 S.C. 228]Appellant, Richard Burton Beekman, was convicted of criminal sexual conduct (CSC) with a minor in the first degree and lewd act upon a child. On appeal, Beekman contends the trial court erred in: (1) refusing to sever the two charges because they involved two victims, did not arise out of a single chain of circumstances, and were not provable by the same evidence; (2) admitting alleged prior bad act evidence where there was only a general similarity between the prior bad act and the crime and the probative value was outweighed by its prejudicial effect; and (3) failing to grant a new trial where the cumulative effect of trial errors was so prejudicial as to deprive him of a fair trial. We affirm.

FACTUAL/PROCEDURAL HISTORY

Beekman was indicted for sexual crimes against his two stepchildren, Stepdaughter and Stepson. Specifically, Beekman was charged with commission of a lewd act on Stepdaughter and CSC with a minor in the first degree in regard to Stepson. Stepdaughter testified that one night, when she was twelve years old, she awoke to find Beekman touching her private area with his hand on her bare skin. Stepson, who was eight years old during the time, testified to several instances of inappropriate touching involving Beekman, and an instance where Beekman ultimately sexually penetrated him, which was the basis of the CSC charge. Following submission of the case to the jury, Beekman was found guilty of CSC with a minor in the first degree in regard to Stepson and commission of lewd act upon a child with regard to Stepdaughter. He was sentenced to thirty years for the CSC charge and was given a consecutive sentence of fifteen years for the lewd act charge. This appeal follows.

ISSUES

1. Whether the trial court erred in refusing to sever Beekman's charges where the alleged sexual abuse involved two victims, the offenses did not arise out of a single chain of circumstances and were not provable by the same evidence, [405 S.C. 229]and Beekman was prejudiced by its improper influential effect on the jury.

2. Whether the trial court erred in admitting alleged prior bad act evidence where the connection between the prior bad act and the crime was nothing more than a general similarity and the probative value of the evidence was outweighed by its prejudicial effect.

3. Whether the trial court erred in refusing to grant a new trial where the cumulative effect of the errors was so prejudicial as to deprive Beekman of a fair trial.

LAW/ANALYSISI. Motion to Sever

Beekman first argues the trial court erred in denying his motion to sever his charges, asserting they involved two different victims, they did not arise out of a single chain of circumstances, they were not provable by the same evidence, and he was prejudiced by the improper consolidation of the charges. He contends the State would not be able to show a common scheme or plan in a subsequent trial under Rule 404(b), SCRE, because the connection between the prior bad act and the crime requires more than just a general similarity. Additionally, he maintains, even if the evidence of prior bad acts would have been admissible under Rule 404(b), SCRE, its prejudicial effect substantially outweighed any probative value under Rule 403, SCRE, noting in particular the lack of physical evidence. We disagree.

A motion for severance is addressed to the sound discretion of the trial judge, whose ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Caldwell, 378 S.C. 268, 277, 662 S.E.2d 474, 479 (Ct.App.2008). In determining whether the trial court's consolidation of charges was proper, the appellate court considers

[746 S.E.2d 486]

several factors. State v. Rice, 368 S.C. 610, 614, 629 S.E.2d 393, 394 (Ct.App.2006).

Where the offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place and character, the trial judge has the power, in his discretion, to order the indictments tried together if the defendant's substantive rights would [405 S.C. 230]not be prejudiced. Offenses are considered to be of the same general nature where they are interconnected.

Conversely, offenses which are of the same nature, but which do not arise out of a single chain of circumstances and are not provable by the same evidence may not properly be tried together.

Charges can be joined in the same indictment and tried together where they (1) arise out of a single chain of circumstances; (2) are proved by the same evidence; (3) are of the same general nature; and (4) no real right of the defendant has been prejudiced.

Id. at 614–15, 629 S.E.2d at 395 (citations and parentheticals omitted).

Prejudice to a defendant may occur where the defendant is jointly tried on charges resulting in the admission of prior bad act evidence that would have otherwise been inadmissible. State v. Cutro, 365 S.C. 366, 374, 618 S.E.2d 890, 894 (2005). South Carolina Rule of Evidence 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” However, such evidence may be admissible “to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE; see also State v. Lyle, 125 S.C. 406, 416, 118 S.E. 803, 807 (1923) (finding such evidence admissible to show motive, intent, the absence of mistake or accident, the existence of a common scheme or plan, or identity). Additionally, even if prior bad act evidence is found admissible under Rule 404(b), SCRE, the evidence must nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403, SCRE.¹State v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007).

Our courts have considered a single chain of circumstances exists when there is “ ‘in substance a single ... course of conduct’ or ‘connected transactions' ” involved. State v. Tate, 286 S.C. 462, 464, 334 S.E.2d 289, 290 (Ct.App.1985); see [405 S.C. 231]City of Greenville v. Chapman, 210 S.C. 157, 161, 41 S.E.2d 865, 866–67 (1947) (affirming the trial court's determination that, while the various counts could not be deemed as arising out of the same transaction in the narrow sense of that phrase, they did arise out of a series of identical transactions, their respective dates constituting the only difference between them, and noting the phrase “the same transaction” should not be given such a restricted meaning where the warrant was founded upon what was in substance a single criminal course of conduct).

The fact that the indictments involved two different victims did not require severance of the charges. See Cutro, 365 S.C. at 369–75, 618 S.E.2d at 891–95 (affirming the trial court's denial of appellant's motion to sever charges involving three victims, where appellant was charged with two counts of homicide by child abuse and one count of assault and battery involving incidents all occurring at different times with different children); State v. Jones, 325 S.C. 310, 315, 479 S.E.2d 517, 519–20 (Ct.App.1996) (holding consolidation was proper even though the allegations concerned two different victims, noting the offenses charged were of the same general nature involving allegations of a pattern of sexual abuse involving the two minor victims). Here, the evidence established Beekman embarked upon a series of actions aimed at the sexual abuse of his two prepubescent stepchildren over the course of an eight month period. Thus, we find the two charges against Beekman arose from, in substance, a single course of conduct or connected transactions, and decline to give such a restrictive reading of the phrase “a single chain of circumstances” as asserted by Beekman.

[746 S.E.2d 487]

Additionally, as noted by the trial court, there was a great overlap of evidence between the two charges, and the two charges were provable by the same evidence.

We further find Beekman was not prejudiced by the joinder, because evidence regarding his...