State v. Dinkins
| Decision Date | 22 December 2021 |
| Docket Number | Appellate Case No. 2017-002360,Opinion No. 5883 |
| Parties | The STATE, Respondent, v. Michael James DINKINS, Appellant. |
| Court | South Carolina Court of Appeals |
Steven Smith McKenzie, of Coffey & McKenzie, PA, of Manning, for Appellant.
Attorney General Alan McCrory Wilson and Senior Assistant Attorney General David A. Spencer, both of Columbia, and Solicitor Ernest Adolphus Finney, III, of Sumter; all for Respondent.
Michael James Dinkins appeals his convictions for second-degree assault and battery and criminal sexual conduct (CSC) with a minor in the third degree, arguing the circuit court erred in: (1) failing to direct a verdict on one count of third-degree CSC with a minor when the State failed to produce evidence of intent; (2) charging the jury that assault and battery is a lesser included offense of third-degree CSC with a minor due to the circuit court's lack of subject matter jurisdiction; and (3) admitting evidence of prior bad acts. We affirm.
In 2012, the family court awarded custody of Child, who was then eight years old, to her maternal aunt (Aunt) and Aunt's husband, Dinkins.1 Initially, Child lived with her maternal grandmother (Grandmother) during the week because Aunt worked long hours at a hospital; Child visited Aunt's home on the weekends and on Aunt's days off from work.
In 2013, Child, Aunt, Dinkins, and Grandmother took a trip to Topsail Island, North Carolina. According to Child, when she and Dinkins were alone in the living room, Dinkins rubbed her leg and touched her "very close to [her] private area." Child did not immediately disclose this incident to anyone, but eventually told Grandmother. Grandmother responded that they "needed to just watch things all more, very carefully" to see if anything else happened before telling Aunt. Dinkins had been drinking heavily that day, and Grandmother believed alcohol might have contributed to his behavior.
Approximately a year and a half after her mother's death—from December 2013 through February 2014—Child saw counselor Sarah McClam for grief treatment. In August 2014, Child began living full time with Aunt and Dinkins. Child's counseling with McClam resumed in May 2015, after Child wrote a concerning letter to her deceased mother. This treatment period continued until August 2015, when Child improved. Child did not report concerns about Dinkins during the 2013–14 treatment period or when she resumed treatment in 2015.
On December 31, 2015, Child (then eleven years old) and Dinkins stayed up late one night to watch movies, and Child fell asleep on the living room couch. At trial, Child testified Dinkins kissed her on the lips and put his tongue in her mouth. Child pretended to be sleeping because she was scared and went to find Grandmother after Dinkins left the living room. When Aunt came back inside the house later that night, Child told her Dinkins had kissed her on the couch. Child explained she disclosed this incident because "she knew that it was really wrong and [she] didn't need to let it go on anymore."
Aunt and Grandmother did not report the couch incident to law enforcement but contacted McClam to schedule an emergency appointment for Child to talk with her about what happened. When Child and Aunt met with McClam in January 2016, Child disclosed the December 31 incident and reported that Dinkins had been previously inappropriate toward her on October 27, 2015, (Child's eleventh birthday) and December 26, 2015.
Child clarified that on October 27, 2015, Dinkins climbed into bed with her, and "pushed up his pelvic area up and down on top" of her. She further alleged that later that day, she was on the couch when Dinkins grabbed her hand and made her feel something "wet" and "spongy" in the middle of his body "where his private area was." Child claimed she did not immediately report the incident to anyone because she knew her aunt was happy, and she did not want her aunt "to have to get a divorce from my uncle." Child also disclosed that on December 26, 2015, Dinkins made her sit in his lap, and then put his hands under her shirt and touched her breasts over her bra for several minutes. Again, she did not immediately tell anyone because she was afraid Aunt and Dinkins would divorce and she wanted Aunt to be happy. Aunt stated this was the first time she learned of these prior incidents.
After the January 2016 session with Aunt and Child, McClam notified the South Carolina Department of Social Services and the Clarendon County Sheriff's Office (CCSO) of Child's disclosures. CCSO Investigator Kimberly Marlow then spoke with Grandmother, Aunt, and Child's father about the allegations. During Investigator Marlow's interview with Dinkins, Dinkins claimed he kissed Child on the forehead and then kissed his fingers and touched them to Child's mouth. Investigator Marlow testified Dinkins's story changed several times during the interview.
In August 2017, a Clarendon County grand jury indicted Dinkins on four counts of third-degree CSC with a minor: two counts from October 27, 2015, one count from December 26, 2015, and one count from December 31, 2015.
Pretrial, the State filed a written motion seeking to admit the following as evidence of other crimes, wrongs, or acts under Rule 404(b), SCRE:
The State argued evidence of these incidents was admissible to show a common scheme or plan under Rule 404(b) because the incidents all involved Child and occurred within a two-year period. The State further explained it sought to introduce The State noted the incidents were evidence of Dinkins's intent, an element necessary to establish third-degree CSC with a minor.
After taking testimony from Aunt and Child, the circuit court found two of the seven prior incidents—the 2013 spring break incident and the neck kissing incident—were admissible under Rule 404(b), stating, "For purposes of—of the prior bad acts, I've taken into consideration the Wallace factors."2 "[T]he location of the abuse all took place in the home, with the exception of the Topsail incident in the mountains at spring break, and that was obviously within the family confines."
At trial, Child testified that the first time Dinkins inappropriately touched her was on a spring break trip to Topsail Island in 2013. She and Dinkins were alone in the living room and sitting on the couch watching television when he put his hand on her upper thigh. Child reported the incident to Grandmother later that night. Child also recalled Dinkins kissing her on the neck at their home in Manning but could not remember exactly when this happened. Aunt testified she witnessed Dinkins kiss Child on the neck in 2014 in the hallway at their house. Dinkins did not know she could see him, and he walked up behind Child, pulled her hair back, and "tenderly laid his lips on her." Aunt explained,
The jury convicted Dinkins of second-degree assault and battery on count one of the indictment (Child's allegation that Dinkins got into bed with her and climbed on top of her) and count four (Child's allegation that Dinkins reached his hand under her shirt and touched her breasts). The jury acquitted Dinkins on count two (Child's allegation that Dinkins took her hand and forced her to touch his genitals). The jury convicted Dinkins of third-degree CSC with a minor on count three of the indictment (Child's allegation that Dinkins kissed her and put his tongue in her mouth). The circuit court sentenced Dinkins concurrently to six years’ imprisonment suspended upon the service of three years’ imprisonment and three years’ probation for third-degree CSC with a minor, and three years’ imprisonment for assault and battery.
During post-trial motions, Dinkins argued "French kissing" did not fall within the third-degree CSC with a minor statute, the circuit court lacked subject matter jurisdiction to charge second-degree assault and battery as a lesser included offense of third-degree CSC with a minor, and the circuit court erred in admitting evidence of prior bad acts. The circuit court denied the post-trial motions.
"On appeal from the denial of a directed verdict, this Court views...
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