State v. Berry, 2863.

• Court: Court of Appeals of South Carolina
• Writing for the Court: HOWELL, Chief
• Citation: 503 S.E.2d 770,332 S.C. 214
• Parties: The STATE, Respondent, v. Kevin BERRY, Appellant.
• Docket Number: No. 2863.,2863.
• Decision Date: 29 June 1998

332 S.C. 214
503 S.E.2d 770

The STATE, Respondent,
v.
Kevin BERRY, Appellant

No. 2863.

Court of Appeals of South Carolina.

Heard June 3, 1998.

Decided June 29, 1998.

Rehearing Denied August 20, 1998.

332 S.C. 216

Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, Columbia, for appellant

Attorney General Charles Molony Condon, Deputy Attorney General John W. Mcintosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Charles H. Richardson, Columbia; and Solicitor Walter M. Bailey, Jr., Summerville, for respondent.

HOWELL, Chief Judge:

Kevin Berry appeals from his conviction for second-degree criminal sexual conduct. We reverse and remand for a new trial.

I.

Viewed in the light most favorable to the State, the evidence established the following. At approximately 3:00 a.m. on August 14, 1995, the victim, a 42-year old female, was walking down a sidewalk near "The Hill" in Orangeburg. The victim was returning to her home after unsuccessfully attempting to purchase beer from a nearby bootlegger. When a bottle was thrown in front of her, the victim noticed a man standing nearby. The victim commented, "Goodness, I hope you wasn't throwing to hit me," and continued walking. The man grabbed the victim around the throat and pulled her into some nearby bushes. The victim screamed, but the assailant covered her mouth and told her he would kill her if she screamed again. The assailant removed the victim's shorts and underwear and forcibly engaged in sexual intercourse with her. When he instructed the victim to lie face down in the dirt, she managed to run away, wearing only her unsnapped bodysuit.

The victim ran to the home of Freddie Mack and Mary Green, where she was staying at the time. According to Mack

332 S.C. 217

and Green, the victim was very upset, and she insisted on returning to the scene to try to find her glasses. Mack, Green, and the victim then left the house to call the police and to look for the victim's belongings

When Mack arrived at the scene, he saw Berry standing near the bushes. Mack informed Berry that the victim said she had just been raped, and Berry said he had not seen anyone other than the victim come through the area. Mack testified that he stopped Berry from removing some clothes and shoes that were in the bushes.

The victim saw Berry at the scene, and she told Mack that Berry was her assailant. Her shorts, underwear, glasses, and pocketbook were found at the scene.

A rape protocol examination of the victim revealed the presence of semen and a small abrasion under the victim's chin. No other wounds or injuries were discovered. DNA analysis identified Berry as the source of the semen. A blood test revealed that the victim's blood alcohol level was 0.123 percent.

At trial, Berry testified that he paid the victim $10 to have sex with him that night. According to Berry, the victim wanted the money to purchase crack cocaine.

II.

Over Berry's objection, the trial court allowed the State to present the testimony of Rosa Polite, a 59-year old woman who lived in the same area as Berry and the victim. Polite claimed that Berry tried to sexually assault her on Thanksgiving morning, less than one week before Berry's trial. On appeal, Berry contends the evidence of the Thanksgiving incident was improperly admitted, because it was not sufficiently similar to the attack on the victim. We agree.

A.

At trial, Polite testified that she heard knocking at her door sometime between 6:30 and 7:00 a.m. on Thanksgiving day. When she opened the door, Berry grabbed her by the throat and said, "Be still and let me do what I'm going to do, [or] I'll knock you out." Polite testified that Berry "knocked" her in

332 S.C. 218

the face and arms and kicked her legs, and that he broke her glasses during the struggle. When Berry put his hands in her underwear, Polite told him she had AIDS. She escaped when he allowed her to get up to wash her hands

Polite reported the attack to the police shortly after 7:00 that morning, identifying Berry as her assailant. Approximately an hour later, Berry called the police and told them that he had gone to Polite's house to buy bootleg beer.¹ According to Berry, when he told Polite she owed him more change, she attacked him, scratching his face. He then pushed Polite, which caused her to fall on her side.

B.

As a general rule, evidence of other crimes or bad acts "is not admissible to prove the character of a person in order to show action in conformity therewith." Rule 404(b), SCRE; see generally State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). Evidence of other bad acts, however, is admissible to prove "motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE; accord Hough, 325 S.C. at 94-95, 480 S.E.2d at 80; Lyle, 125 S.C. at 416, 118 S.E. at 807. The evidence of the other crime or bad act must be clear and convincing. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993); State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989).

The only exception to the prohibition against evidence of other bad acts arguably applicable in this case is the common scheme or plan exception. For this exception to apply,

a close degree of similarity or connection between the prior bad act and the crime is necessary. The connection between the prior bad act and the crime must be more than just a general similarity. A common scheme or plan concerns more than the commission of two similar crimes; some connection between the crimes is necessary.

332 S.C. 219

State v. Timmons, 327 S.C. 48, 52, 488 S.E.2d 323, 325 (1997)

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