State v. Gaines

• Citation: 667 S.E.2d 728,380 S.C. 23
• Decision Date: 06 October 2008
• Docket Number: No. 26549.,26549.
• Parties: The STATE, Respondent, v. William H. GAINES, Jr., Appellant.
• Court: United States State Supreme Court of South Carolina

667 S.E.2d 728

380 S.C. 23

The STATE, Respondent, v. William H. GAINES, Jr., Appellant.

No. 26549.

Supreme Court of South Carolina.

Heard March 18, 2008.

Decided October 6, 2008.

Robert T. Williams, Sr., and Benjamin A. Stitely, of Williams, Hendrix, Steigner & Brink, of Lexington, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R.J. Shupe, of Columbia, for Respondent.

Justice WALLER:

Appellant, William H. Gaines, was convicted of three counts of criminal solicitation of a minor, in violation of a recently enacted statute, S.C.Code Ann. § 16-15-342 (Supp.2006). He appeals contending, a) evidence of prior chat room conversations was improperly admitted; b) he was entitled to an entrapment instruction; and c) he was entitled to a directed verdict. We disagree and affirm the convictions.

FACTS

Gaines, using the computer alias of HMMRTHEGRT8, engaged in internet communications on AOL chat rooms with a person he believed to be a twelve year old girl in Philadelphia, PA. The girl used the screen name "LilAshleyPA." The online chats occurred in an America Online (AOL) chat room between February and June 2004 during which time Gaines encouraged LilAshleyPA to travel to Greenville, South Carolina to see him. Gaines repeatedly made detailed sexual references as to how he wanted to spend time with LilAshleyPA when she arrived in South Carolina and proposed to rent a hotel room where she could stay with him. He also offered to buy LilAshleyPA clothing and lingerie and requested that she send him nude photos of herself. He emphasized that LilAshleyPA needed to keep their plans a secret because "guys my age aren't allowed to date girls your age."

Unbeknownst to Gaines, LilAshleyPA was actually Lisa Carroll, an undercover detective with the Pennsylvania Internet Crimes Against Children Task Force. Detective Carroll obtained a court order to obtain information on Gaines' identification and upon discovering Gaines lived in South Carolina, Detective Carroll referred the matter to South Carolina authorities.

Thereafter, South Carolina Law Enforcement Division (SLED) agents set up an AOL internet account using the screen name "Allyinsc13." In October 2004, Allyinsc13 contacted HMMRTHEGRT8 online by saying "hey." Gaines responded and the two began to chat. After discovering that Allyinsc13 was a thirteen-year-old living in Columbia and disclosing that he was twenty-eight years old, Gaines inquired into the possibility of their meeting up for the purpose of engaging in various forms of sexual intercourse. Allyinsc13 indicated that she was interested in HMMRTHEGRT8's visiting her in Columbia, and in their subsequent chats, Gaines proposed renting a hotel room and theorized the details of their first sexual encounter. He also offered to buy Allyinsc13 jeans and lingerie and requested she send him a photo. Gaines reminded Allyinsc13 that she needed to keep their relationship a secret because "guys my age aren't supposed to date girls under 18."

Based on Gaines' chats with Allyinsc13, which continued until the end of January 2005, SLED agents procured an order to obtain HMMRTHEGRT8's records from AOL. SLED agents confirmed that the online chats originated from the home that Gaines shared with his parents in Traveler's Rest and obtained a search warrant under which they confiscated Gaines' computer. Gaines subsequently provided oral and written statements admitting that he used the screen name HMMRTHEGRT8 and that he communicated with girls on the Internet using that name, but claimed he was "just talking" with them.

Gaines was indicted on three counts of criminal solicitation of a minor in violation of S.C.Code Ann. § 16-15-342 for online chats with Allyinsc13 on October 25, 2004, November 30, 2004, and January 27, 2005. A jury convicted Gaines on all three counts. He was sentenced to concurrent ten-year terms, suspended to four years incarceration with five years probation on each count. This appeal followed.

ISSUES

1. Did the trial court properly admit Gaines' chat room conversations with LilAshleyPA?

2. Did the trial court err in refusing a jury charge on the law of entrapment?

3. Did the trial court err in denying Gaines' motion for a directed verdict?

1. CHATS WITH LILASHLEY PA

Gaines contends the internet chats he had with LilAshleyPA between February and July 2004 were improperly admitted at trial. We disagree.¹ We find the chats were properly admitted.

Initially, Gaines contends that since S.C.Code Ann. § 16-15-342 (Supp.2006) did not become effective until April 26, 2004,² and most of his chats with LilAshleyPA occurred prior to that date, the earlier chats should not have been admitted inasmuch as they were not criminal behavior. We disagree. The fact that the offense of criminal solicitation of a minor did not become a crime in South Carolina until April 24, 2004 is not dispositive. The chats with LilAshleyPA were at all times illegal under Pennsylvania law. See 18 Pa.C.S.A. § 6318 (unlawful contact with a minor if intentional contact with minor for purposes of engaging in sexual activity). Further, Gaines was not indicted for the chats with LilAshleyPA. Accordingly, we find no merit to this contention.

Further, although many of the chats Gaines had with LilAshleyPA occurred prior to April 24, 2004, there were also chats in June 2004, in which he reiterated both his desire to make love to LilAshleyPA before she turned 13, and his desire to fly her to SC to be with her. Accordingly, the earlier chats were cumulative. State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999) (to qualify for reversal on ground of cumulative effect of trial errors, defendant must demonstrate errors adversely affected right to fair trial); State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890(1995) (error in admission of evidence is harmless where it is cumulative to other evidence which was properly admitted).

In any event, evidence of the chats with LilAshleyPA were properly admitted by the trial court pursuant to Rule 404(b), SCACR, because they were relevant to demonstrate a common scheme or plan, intent, and/or the absence of mistake.

Evidence of other crimes, wrongs, or acts is generally not admissible to prove the defendant's guilt for the crime charged. Such evidence is, however, admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. Rule 404(b), SCRE; State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). To be admissible, the bad act must logically relate to the crime with which the defendant has been charged. If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing. Id.; State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000). Even if prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Rules 403, 404(b), SCRE; State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001).

Where there is a close degree of similarity between the crime charged and the prior bad act, both this Court and the Court of Appeals have held prior bad acts are admissible to demonstrate a common scheme or plan. See State v. Hallman, 298 S.C. 172, 175, 379 S.E.2d 115, 117 (1989) (evidence of prior bad acts bears such close similarity to the offense charged in this case that its probative value clearly outweighs its prejudicial effect); State v. McClellan, 283 S.C. 389, 392, 323 S.E.2d 772, 774 (1984) (such evidence is inadmissible unless the close similarity of the charged offense and the previous act enhances the probative value of the evidence so as to overrule the prejudicial effect); State v. Patrick, 318 S.C. 352, 356 457 S.E.2d 632, 635 (Ct.App.1995) (sufficient similarities between the Georgia case and present case to apply the Lyle common scheme or plan exception); State v. Blanton, 316 S.C. 31, 32, 446 S.E.2d 438, 439 (Ct.App.1994) (prior acts were sufficiently similar to the charged offense to be admissible); State v. Wingo, 304 S.C. 173, 176, 403 S.E.2d 322, 324 (Ct.App. 1991) (prior bad acts tended to show common plan or scheme when the experiences of each victim paralleled that of the other victims).

Under the facts presented here, it is clear the prior chats with LilAshleyPA were properly admitted. In both cases, HMMRTHEGRT8 engaged in AOL chat room conversations with young females whom he believed to be twelve and thirteen years old. He told both girls he was twenty-seven or twenty-eight years old and explained that it was illegal for him to date them. He proposed to both the idea of taking them to a motel room and also expressed his desire for each to come and live with him. He sought confirmation from both girls that they had not been intimate with anyone before, requested that each send him photos of themselves, offered to buy them clothing and lingerie, and suggested similar sexual acts for the girls to perform. Accordingly, we find the chats with LilAshleyPA were properly admitted.

2. ENTRAPMENT

Gaines next asserts he was entitled to a jury instruction on the defense of entrapment. We disagree.

The law to be charged to the jury is determined by the evidence presented at trial. State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007) cert. denied ___ U.S. ___, 128 S.Ct. 1872, 170 L.Ed.2d 751, 2008 WL 1699517 (2008); State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001). To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant. State v. Burkhart, 350 S.C. 252, 565 S.E.2d 298 (2002).

"The affirmative defense of entrapment is...