State v. Davis, 2006-UP-274

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
PartiesThe State, Respondent, v. Jerry Davis, Appellant.
Docket Number2006-UP-274
Decision Date08 June 2006

The State, Respondent,
v.

Jerry Davis, Appellant.

No. 2006-UP-274

Court of Appeals of South Carolina

June 8, 2006


THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Heard May 9, 2006

Appeal From Spartanburg County J. Mark Hayes, II, Circuit Court Judge

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, for Respondent.

PER CURIAM

Jerry Davis appeals his conviction for forgery. He contends the circuit court erred in permitting the State to impeach him with remote prior convictions that were similar to the charge for which he was being tried. We affirm.

FACTS

Davis owned and operated a construction business in Spartanburg. Around November 10, 1995, he reported the theft of a forklift to his insurance company. The insurance company investigated the claim and found the theft had been reported to the police. In turn, the insurance company paid the claim and sent Davis a check in the amount of $35, 000 made out to Jerry Davis and the National Bank of South Carolina (NBSC). Davis attempted to have the check endorsed at Nationsbank in Columbia, but Nationsbank refused because it was not the payee of the check. Davis testified he then sent the check to NBSC with a letter in which he asked for an endorsement. Davis claimed the letter was returned with an endorsement. Subsequently, he instructed his secretary, Teresa Smith, to open an account and deposit the check at Carolina First in Taylors, South Carolina.

On May 6, 1996, during the course of the investigation of the theft, the police suspected that Davis was driving a truck with a forklift on the back of it on Interstate 26 from Columbia towards Spartanburg. Bobby Shealy, employed with the State Law Enforcement Division, parked in the median of the interstate to watch for Davis. Shealy observed a truck with a forklift on it that matched the description of Davis's stolen forklift. Shealy followed the truck and radioed for backup. Once backup arrived, Shealy stopped the truck. The driver of the truck informed Shealy he had rented the forklift from Davis and paid him $2, 000 by check. Later, the police found in Davis's possession the check with rental” written on the subject line.

A Spartanburg County grand jury indicted Davis for making a false statement to an insurer, presenting a false claim for payment of loss, and forgery. At trial, the State elected to proceed with the charges of forgery and presenting a false claim for payment of loss.

During trial, Smith testified that when Davis initially showed her the check, it did not contain any endorsements. When Smith saw the check again, one or two days later, it contained the signatures of both Davis and Kaye Gaddis, an employee of NBSC. Smith testified Davis instructed her to purchase a ‘for deposit only' stamp and stamp it over [Gaddis's] name so that the lady... at Carolina First bank couldn't see whose name was signed.” Smith followed Davis's instructions and deposited the check at Carolina First.

Additionally, Gaddis testified Davis presented the check to her for endorsement. Gaddis checked the bank's records, but found NBSC had never conducted business with Davis. According to Gaddis, Davis tried to persuade her to endorse the check by explaining the check was made out to the wrong bank. Gaddis refused to endorse the check and testified the signature on the check (Kaye Gaddis”) was not hers.

As the trial proceeded, the State informed the court that it intended to introduce Davis's prior convictions which were beyond the ten-year limitation outlined in Rule 609, SCRE. Davis objected to the introduction of any convictions prior to 1977. The trial court ruled the probative value of the convictions outweighed any prejudicial effect. The court then permitted the State to inquire about the following convictions: 1976, 1977, and 1985 convictions for grand larceny; 1974, 1975, and 1976 convictions for receiving stolen goods; a 1984 federal conviction for receiving, stealing and selling motor vehicles; and a 1988 conviction for interstate transfer of a stolen vehicle. The court, however, refused to permit the solicitor from inquiring about a 1987 conviction for escape, a 1985 conviction for failure to stop, a 1975 conviction for possession of firearms, and convictions for assault.

Ultimately, the jury found Davis guilty of forgery but deadlocked on the charge of presenting a false claim.

Davis appealed his conviction for forgery, arguing the trial court erred in admitting into evidence his prior convictions that were more than ten years old. State v. Davis, Op. No. 2000-UP-748 (S.C. Ct. App. filed Dec. 6, 2000). On appeal, this court concluded the trial court did not articulate the specific facts and circumstances necessary to overcome the presumption against admissibility provided by Rule 609(b), SCRE. Additionally, we were unable to determine if the trial court properly placed the burden of establishing the admissibility of the convictions on the State. As a result, we remanded the case for the trial court to conduct a hearing on the admissibility of the prior convictions with instructions to apply the proper burden of establishing admissibility. We also instructed the court to carefully weigh the probative value for impeachment with the prior convictions against the prejudice to Davis.

On remand, the trial court found the probative value of the remote convictions outweighed their prejudicial value. In reaching this conclusion, the court reasoned: (1) the State met its burden of proof to allow the introduction of the remote convictions and met the factors set forth by State v. Colf, 337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000); (2) the impeachment value of the past convictions was high; (3) Davis's criminal record was significant in the interest of justice because of Davis's virtually unbroken string of convictions from 1971”; (4) the convictions admitted were similar to the forgery charge; (5) Davis's testimony was highly important given he was one of two defense witnesses to testify; and (6) Davis's credibility was a central issue given his testimony was in direct contradiction to that of the State's witnesses. The court also determined that due to the overwhelming evidence in the record, the admission of the prior convictions had little to no prejudicial effect on the outcome of the case. Based on the foregoing analysis, the court affirmed Davis's conviction. This appeal followed.

STANDARD OF REVIEW

The admission of prior convictions to impeach the credibility of a defendant is a matter within the sound discretion of the trial judge, and thus, his decision will not be reversed on appeal absent an abuse of discretion. Green v. State, 338 S.C. 428, 433, 527 S.E.2d 98, 101 (2000); see State v. Mansfield, 343 S.C. 66, 77, 538 S.E.2d 257, 263 (Ct. App. 2000)(The admissibility of evidence is within the sound discretion of the trial judge. Accordingly, evidentiary rulings of the trial court will not be reversed on appeal absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant.”)(citation omitted). An abuse of discretion occurs when the trial judge's ruling is based on an error of law or a factual conclusion that is without evidentiary support. State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000); State v. Walker, 366 S.C. 643, 654, 623 S.E.2d 122, 127 (Ct. App. 2005). The scope of cross-examination is within the discretion of the trial judge, whose decision will not be reversed on appeal absent a showing of prejudice. State v....

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