State v. Burroughs

• Decision Date: 09 September 1997
• Docket Number: No. 2726,2726
• Citation: 328 S.C. 489,492 S.E.2d 408
• Parties: The STATE, Respondent, v. Jerome BURROUGHS, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 408

492 S.E.2d 408

328 S.C. 489

The STATE, Respondent, v. Jerome BURROUGHS, Appellant.

No. 2726.

Court of Appeals of South Carolina.

Heard Sept. 9, 1997.

Decided Sept. 29, 1997.

Fred Henderson Moore, Charleston, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney Salley W. Elliott, Assistant Attorney General G. Robert DeLoach III, Columbia; and Solicitor Ralph J. Wilson, Conway, for respondent.

HOWELL, Chief Judge.

Jerome Burroughs appeals from his conviction for third-degree criminal sexual conduct. We reverse and remand for a new trial.

I.

According to the evidence presented by the State, Burroughs met the victim at magistrate's court in Conway, South Carolina, in January 1994. When Burroughs learned that the victim and her children were being evicted, he offered to let her rent a house he owned in Andrews. Because Burroughs had to make repairs on the house, the victim and her children stayed at a hotel in Conway for two weeks and another in Andrews for one week. The victim and her children moved into the rental house in February 1994. Between February and November, Burroughs occasionally came by the house to make repairs and collect rent. ¹

During the period the victim lived in the hotels, she occasionally spoke to Burroughs about the house, but she testified that Burroughs never visited her at the hotel. The victim denied ever having a romantic or sexual relationship with Burroughs. Although the victim's husband did not stay with his family at the hotels, he did at some point move into the rental house. The victim testified that Burroughs always knew she was married.

The victim testified that sometime around 12:30 p.m. on November 10, 1994, Burroughs came by her house to give her a notice from the water company. After briefly speaking about the victim's upholstery business, Burroughs asked the victim if he could hug her. She refused, but he approached her nonetheless. Despite the victim's repeated refusals, Burroughs pushed her onto the sofa and raped her. After the act was completed, Burroughs wiped himself off with a washcloth and left. The victim testified that, although Burroughs did not threaten her, she did not physically resist his advances or attempt to flee because she did not know what Burroughs was capable of and she feared for her life.

At approximately 7:00 p.m. that evening, the victim finally told her husband about the rape. He took her to the police station, where she filed a report. An examination of the victim at the emergency room revealed the presence of non-motile sperm, but no bruises, lacerations, or vaginal trauma. Serological and DNA analysis performed on the samples taken from the victim indicated that Burroughs was the source of the sperm.

In his defense, Burroughs testified that the victim told him she was not married, and that he and the victim began a sexual relationship while she was staying at the hotel in Conway. Burroughs claimed that the sexual relationship continued after she moved into the rental house, but that he became concerned after the victim's husband (who the victim had introduced to Burroughs as her ex-boyfriend) kept "stopping by." Burroughs admitted having sex with the victim on the day in question, but contended the sex was consensual.

The trial court directed a verdict on the charges of first-degree criminal sexual conduct and kidnapping, submitting only the charge of third-degree criminal sexual conduct to the jury. The jury convicted Burroughs of the charge, and the trial court sentenced him to ten years.

II.

On appeal, Burroughs first argues that he was entitled to a directed verdict on the charge of third-degree criminal sexual conduct because "the failure of [the] sexual battery victim to reject or otherwise resist [Burroughs's] foreplay for sexual consummation precludes the crime of sexual battery." We disagree.

When ruling on a motion for a directed verdict, the trial court is concerned with the existence of evidence, not with its weight. If, when viewed in the light most favorable to the State, there is any direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused, refusal by the trial court to direct a verdict is not error. State v. Long, 325 S.C. 59, 480 S.E.2d 62 (1997); State v. Williams, 321 S.C. 327, 468 S.E.2d 626, cert. denied, --- U.S. ----, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996).

In this case, the victim testified that Burroughs had sex with her despite her repeated refusals and that she was in fear for her life. This testimony alone was sufficient to send to the jury the charge of third-degree criminal sexual conduct. See S.C.Code Ann. § 16-3-654(1)(a) (1987) ("A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if ... [t]he actor uses force or coercion to accomplish the sexual battery in the absence of aggravating circumstances."); State v. Hamilton, 276 S.C. 173, 177-78, 276 S.E.2d 784, 786 (1981) (As used in section 16-3-654, "force" and "coercion" mean to " 'force one's will on someone;' " thus, "criminal sexual conduct in any degree means 'that the sexual battery occurred under circumstances where the victim's consent was lacking.' "). That Burroughs disagreed with the victim's story and testified that the encounter was consensual does not entitle Burroughs to a directed verdict, but instead creates a credibility issue to be resolved by the jury. See, e.g., State v. Ham, 268 S.C. 340, 342, 233 S.E.2d 698, 698 (1977) ("Where the determination of guilt is dependent upon the credibility of the witnesses, a motion for a directed verdict is properly refused."), cert. denied, 434 U.S. 1019, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978). Accordingly, the trial court did not err in denying Burroughs's motion for directed verdict. ²

III.

Burroughs was tried in February 1996, more than a year after the incident occurred. Burroughs argues on appeal that the charges against him should be dismissed because the delay in bringing his case to trial violated his constitutional rights to a speedy trial. We disagree.

Burroughs concedes in his brief that he never raised the speedy trial issue below. South Carolina has no "plain error" rule. State v. Hudgins, 319 S.C. 233, 239, 460 S.E.2d 388, 391 (1995), cert. denied, 516 U.S. 1096, 116 S.Ct. 821, 133 L.Ed.2d 764 (1996). Thus, Burroughs's failure to raise the speedy trial issue below precludes us from considering the issue on appeal. See, e.g., Hudgins, 319 S.C. at 239, 460 S.E.2d at 391 (refusing to address constitutional issue that was not raised at trial); State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982) (rule requiring contemporaneous objection extends to constitutional claims).

IV.

Over Burroughs's objections, the trial court allowed the police officer who first took the victim's statement and a nurse who examined the victim in the emergency room to testify about the victim's statements to them describing the assault. Among the details of the assault recounted by the witnesses was that the victim told them that, before he raped her, Burroughs asked the victim if he could have a hug. On appeal, Burroughs contends the testimony was hearsay and amounted to impermissible bolstering of the victim's trial testimony. We agree. ³

In criminal sexual conduct cases, a prior consistent statement made by a testifying victim is not considered to be hearsay if the statement is "limited to the time and place of the incident." Rule 801(d)(1)(D), SCRE; see also Jolly v. State, 314 S.C. 17, 20, 443 S.E.2d 566, 568 (1994) ("[I]n criminal sexual conduct cases, when the victim testifies, evidence from other witnesses that she complained of the sexual assault is admissible in corroboration, limited to the time and place of the assault and excluding details or particulars."). In this case, the testimony of the officer and the nurse clearly went beyond the victim's statements regarding the time and place of the incident. ⁴ Because the challenged testimony does not meet the requirements of Rule 801(d)(1)(D), it must be considered hearsay. See Rule 801(c), SCRE (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Accordingly, the testimony was properly admitted only if it falls within one of the established exceptions to the general rule that hearsay is inadmissible. See Rule 802, SCRE ("Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court of this State or by statute."). We consider below each of the possible exceptions applicable to this case. ⁵

Prior to the adoption of the Rules of Evidence, South Carolina law provided for a res gestae exception to the hearsay rule. Under this exception, a hearsay statement was admissible if the statement was substantially contemporaneous with the litigated transaction and was the spontaneous utterance of the mind while under the active, immediate influence of the event. See, e.g., State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995); State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978); State v. Dennis, 321 S.C. 413, 468 S.E.2d 674 (Ct.App.1996); State v. McFadden, 318 S.C. 404, 458 S.E.2d 61 (Ct.App.1995), cert. denied (March 21, 1996).

However, there is no single res gestae exception included in the South Carolina Rules of Evidence. Instead, the Rules establish a "present sense impression" exception, which makes admissible a hearsay "statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," Rule 803(1), SCRE, and an "excited utterance" exception, which makes admissible a hearsay "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused...