State v. Cutro, 24834.

• Decision Date: 31 August 1998
• Docket Number: No. 24834.,24834.
• Citation: 504 S.E.2d 324,332 S.C. 100
• Parties: The STATE, Respondent, v. Brenda Gail CUTRO, Appellant.
• Court: South Carolina Supreme Court

332 S.C. 100

504 S.E.2d 324

The STATE, Respondent, v. Brenda Gail CUTRO, Appellant.

No. 24834.

Supreme Court of South Carolina.

Heard September 18, 1997.

Decided August 31, 1998.

Rehearing Denied September 25, 1998.

Thomas M. Neal, III, H. Wesley Kirkland, Jr., and S.C. Office of Appellate Defense, Columbia; and L. Lisa McPherson, Lexington, for appellant.

Attorney General Charles Molony Condon, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, Solicitor Warren B. Giese, and Deputy Solicitor Jonathan S. Gasser, Columbia, for respondent.

MOORE, Justice:

Appellant Brenda Gail Cutro was convicted of one count of murder and sentenced to life imprisonment. We reverse.

FACTS

In 1993, appellant and her husband operated a day care center in their home. During that year, two infants died while in their care. A third child was diagnosed with Shaken Baby Syndrome. Appellant was convicted of murder for the September 1993 death of four-month-old Ashlan Daniel. The death of Parker Colson in January 1993 and the June 1993 diagnosis of Asher Maier with Shaken Baby Syndrome were admitted into evidence as prior bad acts at appellant's trial.¹

ISSUE

Did the trial judge err in admitting evidence of Parker's death and Asher's diagnosis of Shaken Baby Syndrome which the state offered to prove common scheme or plan pursuant to State v. Lyle?²

DISCUSSION

Appellant contends the trial judge erred in admitting Lyle evidence.³ We agree. The State offered evidence of two alleged prior bad acts: 1) Parker's death which occurred eight months before Ashlan's death and while he was in appellant's care on January 4, 1993; and 2) the diagnosis of Asher with Shaken Baby Syndrome three months prior to Ashlan's death on June 23, 1993. Prior to trial, the trial judge held a hearing on the admissibility of this evidence. He ruled that he would let the State introduce the evidence and if the State was unable to tie the evidence together he would grant a mistrial. After the State concluded its case, the trial judge found the evidence admissible and held that the State had presented clear and convincing evidence, albeit circumstantial, that appellant had committed these other offenses.

In the case of the common scheme or plan exception under Lyle, a close degree of similarity or connection between the prior bad act and the crime for which the defendant is on trial is necessary. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993). See also State v. Douglas, 302 S.C. 508, 397 S.E.2d 98 (1990). The connection between the prior bad act and the crime must be more than just a general similarity. State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983). A common scheme or plan concerns more than the commission of two similar crimes; some connection between the crimes is necessary. Id.

Evidence of other crimes must be put to a rather severe test before admission. The acid test of admissibility is the logical relevancy of the other crimes. The trial judge must clearly perceive the connection between the other crimes and the crimes charged. Lyle, supra. Further, other crimes which are not the subject of conviction must be proven by clear and convincing evidence. State v. Pierce, 326 S.C. 176, 485 S.E.2d 913 (1997).

In Pierce, we held the trial court erred in admitting prior bad act evidence of child abuse because the State had failed to offer clear and convincing proof that the appellant had inflicted the prior injuries. Similarly, in State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989), we held proof appellant committed a prior murder was not clear and convincing. Likewise, here, the evidence is insufficient to establish that appellant was the actor in Parker's death or Asher's injuries.⁴

Appellant and her husband testified she routinely left all of the children in her husband's care while she ran errands. In fact, on the day Parker died, they testified appellant's husband provided almost all of their care. On that day, appellant left the house for over two hours to go to the bank, grocery store, a crafts store, and Wal-mart. Appellant's husband was holding Parker when she returned and he put Parker down for his nap. Appellant's husband found Parker not breathing an hour later.

The experts seem to agree that Asher's injuries occurred sometime within the seventy-two-hour-period prior to when he was taken to the hospital. Further, because he was not dehydrated, it was ascertained that the injury probably occurred within the prior twenty-four hours.⁵ Asher was taken to the hospital on the morning of Wednesday, June 23rd. Appellant and another parent testified Asher appeared sick when his mother, Catherine Maier, dropped him off at approximately 7:30 a.m. Appellant called Catherine that morning around 10:30 a.m. and asked her to take him to the doctor. Appellant's husband immediately carried Asher, who was already strapped into his car seat, out to the car when Catherine arrived to take him to the doctor at approximately 11:30 a.m. Several persons other than appellant, including Catherine and appellant's husband, had access to Asher within this preceding twenty-four hour period. We think the evidence is insufficient to establish that appellant injured Asher.

The dissent states "[Appellant] had nearly exclusive control over Asher and Parker; the only other person with clear access to Asher and Parker was [appellant's] husband." (emphasis added). This view of the evidence does not support the conclusion that appellant was the sole person who could have inflicted the injuries. The dissent points to appellant's testimony that Parker was her responsibility and it was her job to give him back to his mother that day. This testimony does not somehow exclude appellant's husband from being the perpetrator. The dissent states appellant's credibility was in doubt at trial. Even if we discount appellant's testimony because of her lack of credibility, there is still appellant's husband's testimony that he helped care for the children. More importantly, the State did not present any evidence to the contrary. Thus, the only evidence on this issue is that appellant did not have exclusive control of the children.

The facts of this case are very similar to the facts in State v. Conyers, 268 S.C. 276, 233 S.E.2d 95 (1977). In Conyers, the appellant was convicted of murdering her second husband by poisoning him with arsenic. The State introduced evidence regarding the poisoning of appellant's son-in-law, mother-inlaw, first husband, and a potential business partner. The Court summarily concluded the trial judge properly admitted evidence of poisoning of the son-in-law, mother-in-law, and potential business partner. However, the Court held the trial court had erred in admitting evidence of the poisoning of appellant's ex-husband. Appellant's first husband died six years before her second husband. The first husband's body was exhumed and it was found to contain the highest level of arsenic of any of the other victims. "There was very little evidence, however, to establish that appellant poisoned her first husband other than the fact that she was his wife and he had some life insurance. This evidence alone was insufficient to establish the identity of appellant as the actor in poisoning her first husband." 268 S.C. at 281,233 S.E.2d at 96.⁶ The Court held the admission of this evidence was clearly prejudicial and reversed.

Likewise, here, the evidence is insufficient to establish that appellant was the actor in Parker's death or Asher's injuries and we hold the trial judge erred in admitting this evidence. Accordingly, we reverse.

Appellant's remaining issues are affirmed pursuant to Rule 220(b)(2) and the following authorities: Issue 2: State v. Dinkins, 319 S.C. 415, 462 S.E.2d 59 (1995).⁷ Issue 3: State v. Washington, 315 S.C. 108, 432 S.E.2d 448 (1993) (appellant cannot on appeal complain about the admission of evidence which she elicited). Issue 4: State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991) (in ruling on a motion for a directed verdict, the trial judge is concerned with the existence or nonexistence of evidence, not its weight). Issue 5: State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981) (admission of evidence is within the trial court's discretion and absent an abuse of this discretion will not be reversed by this Court); State v. Schmidt, 288 S.C. 301, 342 S.E.2d 401 (1986) (evidence is relevant if it tends to establish or make more or less probable some matter at issue upon which it directly or indirectly bears); State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981) (appellant cannot complain of prejudice from admission of evidence if he opened the door to its admission).

REVERSED.

FINNEY, C.J., and WALLER, J., concur.

TOAL and BURNETT, JJ., dissenting in separate opinion.

TOAL, Justice:

The majority affirms all issues, except the question of Cutro's prior bad acts. It finds that the trial court erred in admitting, under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), evidence of the death of Parker Colson and the injury of Asher Maier. Because this finding fails procedurally and substantively, I must dissent from this portion of the majority's opinion.

A. PROCEDURAL GROUNDS

The majority opinion holds that evidence of Brenda Cutro's prior bad acts is inadmissible because the State failed to prove her commission of these acts by clear and convincing evidence. This argument is procedurally barred inasmuch as it was neither raised, nor argued, on appeal by Cutro. Before this Court, Cutro contests the trial court's ruling concerning the Lyle evidence on two distinct bases: (1) the State has not established a sufficient connection for the prior bad acts to be admissible because of dissimilarities between the prior bad acts and the current murder; and (2) even if the evidence were admissible, the State has introduced too much evidence, thereby prejudicing Cutro.

Cutro does...