State v. Cross, Appellate Case No. 2016-001939

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JUSTICE JAMES
• Citation: 832 S.E.2d 281,427 S.C. 465
• Parties: The STATE, Respondent, v. James Scott CROSS, Petitioner.
• Decision Date: 24 July 2019
• Docket Number: Opinion No. 27903,Appellate Case No. 2016-001939

427 S.C. 465
832 S.E.2d 281

The STATE, Respondent,
v.
James Scott CROSS, Petitioner.

Appellate Case No. 2016-001939
Opinion No. 27903

Supreme Court of South Carolina.

Heard May 3, 2018
Filed July 24, 2019
Rehearing Denied September 19, 2019

Chief Appellate Defender Robert Michael Dudek, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, both of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

JUSTICE JAMES :

832 S.E.2d 283

427 S.C. 468

James Scott Cross was convicted of first-degree criminal sexual conduct (CSC) with a minor and committing a lewd act on a minor. The trial court sentenced Cross to an aggregate prison term of twenty-five years. Cross appealed, and the court of appeals affirmed. State v. Cross , Op. No. 2016-UP-257, 2016 WL 3200117 (S.C. Ct. App. filed June 8, 2016). We granted Cross's petition for a writ of certiorari. We reverse and remand for a new trial, holding the trial court erred in denying Cross's motion to bifurcate his trial.

I. FACTUAL AND PROCEDURAL HISTORY

A child (Minor) accused James Scott Cross of sexually abusing her when she was thirteen years old. The indicted charges arise from an incident that allegedly occurred during the afternoon of December 29, 2005. Minor claimed Cross and his wife visited Minor's parents in their home and that she and two other children went outside to play hide-and-seek with Cross in a field near her home. Cross was thirty-five years old at the time. Minor testified at trial that as it was getting dark,

427 S.C. 469

Cross followed her behind a tree and started to kiss her and touch her breasts and vagina. She testified Cross forced her to have vaginal intercourse and then threatened to harm her or her family if she told anyone. Minor testified she returned home immediately after the assault, went into her room, took a bath, and wrote about the assault in her diary the same evening. Her father testified that about one month later, he was looking for something in Minor's room while Minor was visiting her grandparents, picked the lock on Minor's diary, and read the incriminating entry. Minor's mother testified she gave the relevant diary pages to a county deputy who responded to the residence when she and Minor's father reported the incident to the Abbeville County Sheriff's Office on January 31, 2006. The diary pages were not accounted for at trial.

Minor was examined by a pediatrician on February 22, 2006. The pediatrician testified at trial that Minor "had basically a normal physical exam for a child." The pediatrician also testified that a sexual assault upon a thirteen-year-old female may or may not result in physical trauma. The pediatrician further testified that any minor trauma could have healed during the two months between the alleged incident and the physical examination.

In April 2006, Cross was indicted for one count of committing or attempting to commit a lewd act on a minor.¹ In 2013, Cross was indicted for first-degree CSC with a minor. The 2013 charge arose from the same allegations recited above. The offense of first-degree CSC with a minor is codified in section 16-3-655(A) of the South Carolina Code (2015); this section provides in pertinent part:

(A) A person is guilty of criminal sexual conduct with a minor in the first degree if:

....

(2) the actor engages in sexual battery with a victim who is less than sixteen years of age and the actor has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for an offense listed in Section 23-3-430(C)

427 S.C. 470

or has been ordered to be included in the sex offender registry pursuant to Section 23-3-430(D).

(emphasis added). Section 23-3-430(C) of the South Carolina Code (Supp. 2018) lists twenty-three qualifying sex-related offenses, including the offense of first-degree CSC with a minor. Cross had a prior conviction for first-degree CSC with a minor, having pled guilty to that offense in 1992. This 1992 conviction allowed the State to obtain an indictment for first-degree CSC with a minor under section 16-3-655(A)(2). Otherwise,

832 S.E.2d 284

Cross would have faced a charge of second-degree CSC with a minor under section 16-3-655(B)(1), which states a person is guilty of second-degree CSC with a minor if "the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age."

Cross was tried in October 2013. During a pretrial hearing, Cross moved for his trial to be bifurcated, arguing he would be unfairly prejudiced if evidence of his 1992 conviction and his sex offender registry status were introduced to prove the prior conviction element of the CSC charge. He requested that the lewd act charge and the sexual battery element of the first-degree CSC with a minor charge be presented to the jury first, and if the jury concluded he committed sexual battery, then evidence of the prior conviction could be presented to the jury during the next stage of the trial. Cross argued:

There are significant credibility issues, and we're up to our eyeballs here in credibility issues. I think that the minute that the jury hears ... that [Cross] has been previously convicted of the exact same crime, given that we're talking about a crime against a child on two occasions, I think [the jury is] going to latch on to that and they're going to feel that it -- that it shows his predilection to this type of offense. It's going to be propensity evidence as received by them.

Cross urged the trial court to perform a Rule 403, SCRE, analysis if it decided to deny his motion to bifurcate. He argued his case is distinguishable from the first-degree burglary line of cases which permit the admission of this type of evidence to prove the prior conviction element of the first-degree burglary statute.² Cross contended the issue was more

427 S.C. 471

akin to the issue in Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Cross also offered to stipulate in camera that he has a prior qualifying conviction under section 23-3-430(C), contending there was no better proof of this element of the crime than his concession. He argued his in camera admission would not hamper the State's presentation of its case.

The trial court inquired whether a Rule 403 analysis would be appropriate. Of course, Cross argued such an analysis was necessary. The State argued a Rule 403 analysis was not necessary. The trial court ruled:

I don't know what could be more probative -- when we're dealing with an element of the crime, nothing could be more probative than the fact that there's an indictment indicating that he was convicted of or pled guilty of a crime. I don't know that you get better evidence of that in terms of proving an element that the legislature has decided to include within the ... CSC with a minor first [statute]. So clearly the probative value for the State is extreme. The prejudicial effect, in my opinion, can be addressed by simply explaining to the jury that they're to draw no inference from the fact that he was previously convicted of this. I have every reason to believe that this is an intelligent jury. ... So that would be my ruling on that. I don't see the need to bifurcate, and I appreciate your position, however, your objection is noted for the record.

Minor's trial testimony on direct examination is summarized above. Minor was cross-examined in detail at trial about a statement she gave to Anderson County law enforcement regarding an incident that Minor claimed occurred between her and Cross's brother at some point close in time to the indicted incident. In that statement, Minor related that Cross's brother had performed oral sex on her while they were watching television. According to the statement, Minor related that on another occasion, the brother performed oral sex on her and then had sexual intercourse with her for fifteen or thirty minutes. Minor testified on cross-examination that

427 S.C. 472

these two accounts were "a lie." However, on re-direct, Minor testified she indeed had sexual intercourse with the brother at the Cross home in Anderson after the indicted incident but before her father

832 S.E.2d 285

discovered her diary. She explained her earlier inconsistency involved only the amount of time the brother's assault lasted.

After Minor's testimony and over Cross's objection, the indictment and sentencing sheet establishing the 1992 conviction were introduced into evidence. The trial court then gave the following limiting instruction to the jury:

In this case, the State has introduced this previous conviction whereby [Cross] was convicted of criminal sexual conduct with a minor. The only reason that this conviction is being admitted ... is that it is an element -- it is one of the elements of the

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