State v. Cox

• Court: South Carolina Supreme Court
• Writing for the Court: HARWELL; LEWIS
• Citation: State v. Cox, 274 S.C. 624, 266 S.E.2d 784 (S.C. 1980)
• Decision Date: 13 May 1980
• Docket Number: No. 21227,21227
• Parties: The STATE, Respondent, v. Kenneth COX, Appellant.

Page 784

266 S.E.2d 784

274 S.C. 624

The STATE, Respondent, v. Kenneth COX, Appellant.

No. 21227.

Supreme Court of South Carolina.

May 13, 1980.

Chief Atty. John L. Sweeny and Staff Atty. Tara D. Shurling, S.C. Appellate Defense Commission, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Brian P. Gibbes and Russell D. Ghent, Columbia, and Sol. William W. Wilkins, Jr., and Asst. Sol. Jeffrey A. Merriam, Greenville, for respondent.

HARWELL, Justice:

Appellant Kenneth Cox appeals his conviction for criminal sexual conduct in the second degree. See, § 16-3-653, S.C. Code Ann. (1976). We affirm.

Appellant was acquainted with the boyfriend of the State's prosecuting witness. On the night of the incident, appellant negotiated a ride with the prosecuting witness and her boyfriend to a club. When the prosecuting witness later left the club, appellant forced his way into her car and drove off with her. Sometime later he parked and then committed the sexual battery. Appellant then forced her to accompany him on a search for someone who would sell alcoholic beverages to him. During this sequence, appellant and the prosecuting witness were joined by a friend of appellant's. Prosecuting witness was at all times under control of appellant. Later, the three of them were involved in a single car accident. Appellant sent the prosecuting witness to Rayburn Cox's house to get someone to help with the automobile. At this time, the prosecuting witness told Molly Cox she had been raped. Rayburn gave her aid and she was enabled to leave appellant at this time.

Appellant contends first that the trial court judge erred in admitting the testimony of Molly Cox to the effect that the prosecuting witness told her that she had been raped. Appellant contends that this was inadmissible hearsay testimony. We disagree. We find the testimony admissible under either of two grounds as being within the res gestae exception and also as being corroborative of the sexual battery victim's testimony.

To qualify as part of the res gestae, a statement must be substantially contemporaneous with the litigated transaction and be the spontaneous utterance of the mind while under the active immediate influence of the event. The reason for the exception is that special reliability may be given a statement uttered in a state of spontaneous excitement which suspends the declarant's powers of reflection and fabrication. State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978); Marshall v. Thomason, 241 S.C. 84, 127 S.E.2d 177 (1962).

In this case there was a lapse in the evening from the time of the sexual battery itself to the time when the statement was made. To qualify as part of the res gestae the utterance need only be substantially contemporaneous with the transaction. State v. Quillien, 263 S.C. 87, 207 S.E.2d 814 (1974). Though there was a lapse from the time of the sexual battery, it is clear that the statement was made immediately upon the prosecuting witness's freedom from appellant's dominion. There was no substantial lapse from the time the victim was freed from the clutches of her assailant to the time when she first had an opportunity to speak to a third party. The requirements for res gestae are therefore met.

Though the testimony of the victim in prosecutions under Section 16-3-653 need not be corroborated, See Section 16-3-657, corroboration is not barred. In State v. Harrison, 236 S.C. 246, 113 S.E.2d 783 (1960) this court stated:

"It is well settled that the fact that the prosecutrix complained of a rape may be shown in corroboration of her testimony. State v. Sudduth, 52 S.C. 488, 30 S.E. 408; State v. Dawson, 88 S.C. 225, 70 S.E. 721; State v. Black, 204 S.C. 414, 29 S.E.2d 675. If the prosecutrix does not testify, such evidence is inadmissible. State v. Wallace, 122 S.C. 520, 115 S.E. 811. The particulars or details are not admissible but so much of the complaint as identifies 'the time and place with that of the one charged' may be shown. Wigmore on Evidence, 3rd Ed., Section 1136; Lauderdale v. State, 227 Miss. 113, 85 So.2d 822. The testimony in controversy did not go beyond the foregoing limitations and certainly was not prejudicial."

See also State v. Sharpe, 239 S.C. 258, 122 S.E.2d 622 (1961). The testimony here was well within the limitations as stated in State v. Harrison, supra, and was admissible on this ground also.

During the course of the evening when appellant forced the prosecuting witness to accompany him on a search for alcoholic beverages, they came upon the home of witness Theresa Dill. While on the porch, prosecuting witness allegedly said, "Honey, please open the door." Appellant contends this statement is hearsay and the trial judge therefore erred in admitting it. We disagree. The statement was obviously not offered for the truth of the matter asserted and therefore, by definition, is not hearsay.

Appellant next contends that the trial court judge erred by not specifically charging lack of consent. We disagree.

The trial court judge charged the applicable provisions of the criminal sexual conduct statutes. See Sections 16-3-651 to 16-3-654, S.C. Code Ann. (1976). The jury found appellant guilty of criminal sexual conduct in the second degree. Section 16-3-653(1) provides that, "A person is guilty of criminal sexual conduct in the second degree if the actor uses aggravated coercion to accomplish sexual battery." The language "aggravated coercion" is meant to provide that the sexual battery occurred...