State v. Berry

• Decision Date: 15 July 2015
• Docket Number: No. 5329.,Appellate Case No. 2013–000435.,5329.
• Citation: 775 S.E.2d 51,413 S.C. 118
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Stephen Douglas BERRY, Appellant.

413 S.C. 118

775 S.E.2d 51

The STATE, Respondent,

v.Stephen Douglas BERRY, Appellant.

Appellate Case No. 2013–000435.

No. 5329.

Court of Appeals of South Carolina.

Heard April 14, 2015.

Decided July 15, 2015.

Certiorari Granted Dec. 7, 2016.

League B. Creech, of Peters Murdaugh Parker Eltzroth & Detrick, PA, of Hampton, and Chief Appellate Defender, Robert Michael Dudek, of Columbia, for appellant.

Attorney General, Alan McCrory Wilson and Assistant Attorney General, William M. Blitch, Jr., both of Columbia, for respondent.

LOCKEMY, J.

Stephen Douglas Berry appeals his conviction for second-degree criminal sexual conduct (CSC) with a minor. Berry argues the trial court erred in (1) allowing subsequent bad act testimony and (2) failing to suppress expert testimony regarding the victim's behavior and symptoms of post-traumatic stress disorder. We affirm.

FACTS/PROCEDURAL BACKGROUND

Berry was indicted by the Union County Grand Jury for second-degree CSC with a minor in July 2012. A jury trial was held February 5–8, 2013.

At trial, the victim testified she met Berry at New Life Baptist Church where he served as a youth pastor. In May 2010, Berry and his daughter, a friend of the victim, moved to a home near the then fifteen-year-old victim. The victim testified that after church one Sunday in May 2010, she accepted a ride to her home from Berry. Instead, Berry took her to his previous residence telling her he had to pick up some items. The victim stated that once inside, she went to Berry's daughter's room. According to the victim, Berry then came up behind her, hugged her, and touched her behind. After a brief conversation, the victim testified Berry again approached her, hugged her, and told her she was beautiful. He then began rubbing her legs and unbuttoned and unzipped her pants. The victim stated she pushed Berry away, but he came back and pulled her pants and underwear down and placed his finger inside her vagina. Thereafter, the victim testified that after briefly walking away, Berry began walking toward her again while unbuttoning and unzipping his pants. The victim stated Berry turned her around and attempted to sodomize her. The victim further explained that after she was able to prevent him from doing so several times, Berry went to another part of the room and masturbated.

The victim testified that one week later, Berry invited her to his new home. Once inside, the victim stated Berry placed his finger inside her vagina. She testified she resisted several times and "eventually gave in because there was no use in even trying to stop it."

The victim testified to more incidents of sexual abuse by Berry at his home and at her home. She testified these incidents occurred at least once a week during the 2010–2011 school year. The victim then explained that in the fall of 2010 Berry put his penis inside her vagina while she was watching a movie at his home and told her she "wasn't a virgin anymore." Over defense counsel's objection, the victim testified Berry continued to digitally penetrate her at various times for four months after she turned sixteen. The victim stated the incidents which took place after she turned sixteen occurred without her consent.

The State called Kim Roseborough, a psychotherapist and social worker, as a witness. The trial court found Roseborough qualified to testify as an expert in the field of child sexual abuse assessment and treatment. Roseborough testified she counseled the victim following the victim's disclosure of sexual abuse. According to Roseborough, she "noticed several things about [the victim's] demeanor, including many symptoms related to trauma." Roseborough testified the victim was avoidant, agitated, depressed, angry, and had feelings of guilt and hopelessness. The State asked Roseborough whether, based on her experience and training, the victim's disclosure was consistent with the disclosure of sexual abuse. Citing State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013), Berry's counsel objected, arguing that asking Roseborough to comment in such a manner would require her to comment on whether she believed the victim. Following a discussion with counsel outside the jury's presence, the judge sustained the objection. Later in Roseborough's testimony, Berry's counsel objected to testimony regarding the typical symptoms exhibited by children who have been sexually abused and are suffering from post-traumatic stress disorder (PTSD). The court overruled the objection off the record. Later in the trial, Berry's counsel placed his prior objection on the record, arguing Roseborough was not qualified to diagnose PTSD. Roseborough testified it was her opinion that the victim suffered from PTSD and referred her to a psychiatrist.

The jury found Berry guilty, and he was sentenced to fifteen years' imprisonment. This appeal followed.

STANDARD OF REVIEW

"In criminal cases, an appellate court sits to review only errors of law, and it is bound by the trial court's factual findings unless the findings are clearly erroneous." State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012). "The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion." Id. "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Id.

LAW/ANALYSIS

I. Bad Act Evidence

Berry argues the trial court erred in allowing the victim to testify as to the acts of sexual abuse committed after she turned sixteen. Berry maintains these acts exceeded the scope of the indictment for second-degree CSC with a minor. Berry also contends (1) the victim's testimony regarding the acts was not relevant; (2) the acts were not criminal in nature; (3) the testimony was inadmissible under Rule 404(b) SCRE ; and (4) the testimony's probative value was outweighed by its prejudicial effect.

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. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923) ; see also Rule 404(b), SCRE (evidence of other crimes, wrongs, or acts is not admissible to prove character of person in order to show action in conformity therewith). To admit evidence of prior bad acts, the circuit court must first determine whether the proffered evidence is relevant. State v. Clasby, 385 S.C. 148, 154, 682 S.E.2d 892, 895 (2009). " ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, SCRE. If the trial court finds the evidence is relevant, the court must then determine whether the bad act evidence is admissible under Rule 404(b) of the South Carolina Rules of Evidence. Clasby, 385 S.C. at 154, 682 S.E.2d at 895. Rule 404(b) precludes evidence of a defendant's prior crimes or other bad acts to prove the defendant's guilt for the crime charged, except to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (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; or (5) the identity of the perpetrator. See Rule 404(b), SCRE.

"Once bad act evidence is found admissible under Rule 404(b), the trial court must then conduct the prejudice analysis required by Rule 403, SCRE." State v. Wallace, 384 S.C. 428, 435, 683 S.E.2d 275, 278 (2009). Pursuant to Rule 403, "relevant[ ] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, SCRE. "Unfair prejudice means an undue tendency to suggest [a] decision on an improper basis." State v. Gilchrist, 329 S.C. 621, 627, 496 S.E.2d 424, 427 (Ct.App.1998).

Berry first argues the victim's testimony regarding abuse that occurred after she turned sixteen is not relevant because any acts which occurred after she turned sixteen were not criminal. We disagree. The victim testified Berry digitally penetrated her without her consent after she turned sixteen. As a result, Berry's actions were criminal.

Berry also argues the trial court erred in allowing testimony that the abuse continued beyond the dates set forth in the indictment. Berry notes testimony that exceeds the scope of the indictment is only permitted if it satisfies one of the exceptions found in Rule 404(b), SCRE. Berry asserts that assuming the victim's testimony was relevant; it was inadmissible because it did not relate to an exception set forth in Rule 404(b), SCRE. He contends the trial court erred in finding the victim's testimony was admissible as evidence of a common scheme or plan. The State argues the victim's testimony established the basis for the delay between the victim turning sixteen and the date she reported the abuse. The State also contends the victim's testimony was properly admitted as evidence of a common scheme or plan.

We believe the trial court properly admitted the victim's testimony as evidence of a common scheme or plan. See Clasby, 385 S.C. at 155, 682 S.E.2d at 896 ("Where there is a close degree of similarity between the crime charged and the prior bad act, both this [c]ourt and the [c]ourt of [a]ppeals have held prior bad acts are admissible to demonstrate a common scheme or plan.") (quoting State v. Gaines, 380 S.C. 23, 30, 667 S.E.2d 728, 731 (2008) ). The victim's testimony in this case established the incidents of abuse occurred in the same manner and in the same locations as the conduct that formed the basis of the charge of CSC with a minor brought against Berry. See State v. Whitener, 228 S.C. 244, 265, 89 S.E.2d...