State v. Cox

• Court: South Carolina Court of Appeals
• Writing for the Court: PER CURIAM:
• Decision Date: 01 July 2020
• Docket Number: 2020-UP-204
• Citation: State v. Cox, 2020-UP-204 (S.C. App. Jul 01, 2020)
• Parties: The State, Respondent, v. Brandon Cox, Appellant. Appellate Case No. 2017-001476

The State, Respondent, v. Brandon Cox, Appellant.

Appellate Case No. 2017-001476

No. 2020-UP-204

Court of Appeals of South Carolina

July 1, 2020

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard December 2, 2019

Appeal From Pickens County Robert E. Hood, Circuit Court Judge

Chief Appellate Defender Robert Michael Dudek, of Columbia, and Jason Scott Luck, of Garrett Law Offices, of North Charleston, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General William Frederick Schumacher, IV, both of Columbia and Solicitor William Walter Wilkins, III, of Greenville, for Respondent.

PER CURIAM:

Brandon Lee Cox appeals from his convictions for first-degree criminal sexual conduct (CSC) with a minor and third-degree sexual exploitation of a minor asserting the trial court erred in: (1) refusing to charge a lesser-included offense (2) admitting evidence of Cox's jailhouse conversation with his father that was in violation of Rule 5, SCRCrimP (3) failing to allow re-redirect examination of Cox on the jailhouse conversation; and (4) excluding evidence of contact with a witness during the trial by the father of the victim. Cox further argues (5) the cumulative effect of errors in his trial requires reversal. We affirm.

1. As to Cox's argument the trial court wrongfully refused to charge assault and battery in the second degree (AB-2nd) as a lesser-included offense of the CSC with a minor charge, we find this issue is not preserved for our review. At trial Cox sought a jury instruction on assault and battery of a high and aggravated nature (ABHAN) as a lesser-included offense of the CSC charge. He never mentioned AB-2nd as a lesser-included offense. Contrary to Cox's appellate assertion, the trial court did not disallow any lesser-included charge but simply determined that the now-codified ABHAN crime is not a lesser-included offense of first-degree CSC with a minor-the only argument raised to the court. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge. Issues not raised and ruled upon in the trial court will not be considered on appeal."); id. at 142, 587 S.E.2d at 694 ("A party may not argue one ground at trial and an alternate ground on appeal."); Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("Issue preservation rules are designed to give the trial court a fair opportunity to rule on the issues, and thus provide us with a platform for meaningful appellate review." (quoting Queen's Grant II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct. App. 2006))); Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011) ("Imposing such a requirement on the appellant 'is meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.'" (quoting I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000))).

Additionally, this issue is controlled by our supreme court's recent decision in State v. Hernandez, 428 S.C. 257, 259-61, 834 S.E.2d 462, 463-64 (2019), wherein the court held the codification of common law assault and battery and its various degrees changed the status of ABHAN as a lesser-included offense of CSC such that the trial court properly denied Hernandez's request to charge the jury on first and second-degree assault and battery as lesser-included offenses of CSC with a minor.

2. As to his argument concerning the State's failure to comply with Rule 5, SCRCrimP, even assuming the State violated this rule by failing to provide defense counsel a copy of the telephone conversation between Cox and his father, we find no prejudice. It is undisputed that the State made defense counsel aware of the existence and the substance of the phone call prior to trial, and Cox has failed to show how he was prejudiced by a failure to receive a copy of the conversation. See State v. Kennerly, 331 S.C. 442, 453-54, 503 S.E.2d 214, 220 (Ct. App. 1998) ("Once a Rule 5 violation is shown, reversal is required only [when] the defendant suffered prejudice from the violation."); State v. Landon, 370 S.C. 103, 108, 634 S.E.2d 660, 663 (2006) ("A violation of Rule 5[, SCRCrimP] is not reversible unless prejudice is shown.").

Further, even assuming the trial court erred in admitting testimony of the jailhouse phone conversation between Cox and his father, we find any such error harmless given the other overwhelming evidence of Cox's guilt. See State v. Brown, 424 S.C. 479, 493, 818 S.E.2d 735, 743 (2018) ("Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result." (quoting State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d 262, 267 (2006))); id. ("Where 'guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached,' an insubstantial error that does not affect the result of the trial is considered harmless." (quoting State v. Byers, 392 S.C. 438, 447, 710 S.E.2d 55, 60 (2011))); id. ("Where a review of the entire record establishes the error is harmless beyond a reasonable doubt, the conviction should not be reversed." (quoting State v. Price, 368 S.C. 494, 499, 629 S.E.2d 363, 366 (2006))); State v. Chavis, 412 S.C. 101, 110 n.7, 771 S.E.2d 336, 340 n.7 (2015) (recognizing error in admitting certain testimony can be deemed harmless when there is other overwhelming evidence of guilt); State v. Daise, 421 S.C. 442, 461, 807 S.E.2d 710, 719 (Ct. App. 2017) (holding any error in admitting testimony was harmless due to the other overwhelming evidence of the appellant's guilt). The undisputed evidence of record shows Victim was sexually abused in her home between 8:00 and 10:30 a.m. on May 25, 2015 as depicted on video; Cox was living with Victim's family and, besides Victim's father-whose hands were not similar to those in the videos-and her very young siblings, Cox was the only other male in the home at the time of the incident; Cox had access to Victim at the time of the incident, having been left alone with her the night before; and Cox constantly wore a unique bracelet, identical to the one observed in the videos on the hand of the person molesting the child. Additionally, review of the exhibits in this case reveals remarkable similarities between the feet, fingers, bracelet and-in particular-location of an identifying freckle or scab on the hand depicted in the videos of the crime and the photographs of Cox taken at the detention center after his arrest, which occurred the day after the videos were taken.

3. As to the trial court's refusal to allow re-redirect examination of Cox concerning the jailhouse telephone conversation, we note defense counsel failed to proffer Cox's re-redirect testimony on the subject. See State v. Jackson, 384 S.C. 29, 34, 681 S.E.2d 17, 19 (Ct. App. 2009) ("Generally, the failure to make a proffer of excluded evidence will preclude review on appeal."). Further, we are not convinced there is any other questioning on the matter that would have been beneficial to Cox's case. Cox had already denied he obtained the tattoos in an attempt to disguise his hands and testified his reason for getting the tattoos was religious and that he knew law enforcement had pictures of his hands prior to getting the tattoos. He further explained the reason he lied to his father-about having the tattoos before he went to jail and how that was the key to his case-was because he did not want his father to think less of him. See State v. Jenkins, 322 S.C. 360, 367, 474 S.E.2d 812, 816 (Ct. App. 1996) ("The reason for the rule requiring a proffer of excluded evidence is to enable the reviewing court to discern prejudice.").

At any rate, assuming the trial court erred in refusing to allow re-redirect examination of Cox concerning the jailhouse telephone conversation, we find any such error harmless given the other overwhelming evidence of Cox's guilt. Brown, 424 S.C. at 493, 818 S.E.2d at 743 ("Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result." (quoting Pagan, 369 S.C. at 212, 631 S.E.2d at 267)); id. ("Where 'guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached,' an insubstantial error that does not affect the result of the trial is considered harmless." (quoting Byers, 392 S.C. at 447, 710 S.E.2d at 60)); id. ("Where a review of the entire record establishes the error is harmless beyond a reasonable doubt, the conviction should not be reversed." (quoting Price, 368 S.C. at 499, 629 S.E.2d at 366)).

4. As to Cox's assertion the trial court erred in excluding evidence of contact with a witness during the trial by the father of Victim because it was a violation of the Confrontation Clause, we also find this argument is not preserved for our review. Defense counsel argued at trial that the testimony was relevant as to whether the witness's testimony would be influenced by Victim's father. However, defense counsel never raised to the trial court that exclusion of the evidence was a violation of Cox's right to cross-examine a witness under the Confrontation Clause. Defense counsel also never argued below, as he does on appeal, that he should have been allowed to recall Victim's father to cross-examine him on the matter, and the trial court never ruled on such. See Dunbar, 356 S.C. at 142, 587 S.E.2d at 693-94 ("In order for an issue to be preserved for appellate review, it must have been...