State v. Grace
| Decision Date | 15 April 2002 |
| Docket Number | No. 3476.,3476. |
| Citation | 564 S.E.2d 331,350 S.C. 19 |
| Parties | The STATE of South Carolina, Respondent, v. Terry Lee GRACE, Appellant. |
| Court | South Carolina Court of Appeals |
L. Morgan Martin and George M. Hearn, Jr., Conway, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Attorney General Charles H. Richardson and Senior Assistant Attorney General Harold M. Coombs, Jr., Columbia; and Solicitor J. Gregory Hembree, Conway, for respondent.
Terry Lee Grace ("Grace") was convicted of the offense of lewd act on a minor and three charges of simple assault and battery upon the same minor. Grace appeals his convictions arguing the circuit court erred in consolidating the four indictments for trial, and in limiting the testimony of his brother and the cross-examination of his ex-wife. We affirm.
Grace and Julie Wilkinson Cowens ("Julie") were husband and wife and had custody and care of their fourteen-year-old niece ("the niece") and fifteen-year-old nephew. During the early morning hours of October 17, 1997, Julie went into the niece's bedroom and did not see her. While searching for her, Julie entered the guest bedroom upstairs, where Grace frequently slept, to look for the niece. Julie pulled the bed covers off the bed, and discovered Grace lying naked in the bed with the niece, who was clad only in a tee shirt. Julie became enraged and asked Grace and the niece whether they had sexual intercourse. The niece responded they had, but Grace denied having sex with the niece.
Upon discovering Grace and the niece together in bed, Julie called 911 and told the operator what had occurred. The 911 operator notified the police who dispatched sheriffs deputies to the scene. The deputies arrested Grace. Lieutenant Hunt, the sexual assault investigator for the Georgetown County Sheriffs Department, investigated the allegations. Hunt asked the niece about the events of October 17 and also whether any similar prior events between the niece and Grace had occurred. The niece responded that they had engaged in sexual intercourse on two prior occasions, and that on October 17 Grace digitally penetrated her. Hunt examined the mattress that Grace and the niece were found lying on and noticed what she thought were old blood stains on the mattress. She cut out the stained portion of the mattress and had it tested to see if the stain matched the niece's DNA. The DNA test results were inconclusive. Also Hunt arranged for the niece to be examined by a doctor. The results of this examination were also inconclusive.
Grace was charged and separately indicted on three counts of criminal sexual conduct with a minor under the age of sixteen, and one count of lewd act on a minor. The jury convicted Grace on the lewd act on a minor charge and three counts of simple assault and battery. This appeal followed.
Grace argues the trial judge abused his discretion in not requiring the State to try the criminal sexual conduct charges separate from the lewd act with a minor charge because the joinder made the jury more likely to convict him on the lewd act charge. We disagree. The circuit court has wide discretion when deciding whether to consolidate charges for trial and its decision will only be overturned when an abuse of discretion has occurred. State v. Smith, 322, S.C. 107, 109, 470 S.E.2d 364, 365 (1996). There are several factors to consider when deciding whether the consolidation of charges was proper. "Where the offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place, and character, the trial judge has the power, in his discretion, to order the indictments tried together if the defendant's substantive rights would not be prejudiced." State v. Jones, 325 S.C. 310, 315, 479 S.E.2d 517, 519 (Ct.App. 1996). When offenses are interconnected they are considered to be of the same general nature. Id.
There were four separate indictments issued against Grace. The first was for criminal sexual conduct alleging sexual battery by committing the act of fellatio between the dates of August 18 and September 30, 1997. The second was for criminal sexual conduct alleging sexual battery by intercourse between the dates of August 18 and October 12, 1997. The third was for criminal sexual conduct by committing a sexual battery by digital penetration between August 18 and September 30, 1997. The fourth was for lewd act with a minor on or about October 16, and 17, 1997.
The niece testified that on three occasions during the August 18 to October 17, 1997 time span, Grace propositioned her to engage in a sexual encounter. Each time, the events occurred in the same place and in the same manner. The niece testified that Grace approached her the first time and stated that he wished to have sex with her. Grace then instructed the niece to come up to the guest bedroom, where Grace slept, when she was certain everyone else in the house was asleep. When the niece complied with Grace's instructions and went to the guest bedroom, Grace kissed the niece, performed oral sex on the niece, had the niece perform oral sex on him, digitally penetrated the niece, had intercourse with her and ejaculated on her stomach.
The second encounter occurred in mid-September in the same manner, and the same sequence of sexual events occurred. On both occasions, Grace asked the niece "Did she need attention?" which the niece testified was a code for whether she wanted sex. On the evening of October 16, 1997, Grace once again asked the niece to come to his room in the same manner as before; however, this time only digital penetration occurred.
The indictments in this case involved charges of the same general nature. The crimes alleged were all sexual misconduct crimes and were interconnected. All incidents concerned the same parties, Grace and the niece, and took place in the same location, the guest bedroom, within a relatively short time period. The underlying evidence shows a pattern of sexual abuse and was essentially the same for all charges.1 We reject Grace's argument that the jury could have been improperly influenced by the criminal sexual conduct charges in considering the lewd act charge. The jury had no trouble sorting out the evidence regarding the criminal sexual conduct charges by convicting Grace on simple assault charges only. There is no reason it could not have done the same for the lewd act charge. In addition, there was ample evidence in the record for the jury to convict Grace on the lewd act charge without considering any evidence from the events which led to the criminal sexual conduct charge. Under the facts of this case the circuit court did not abuse its discretion by consolidating the charges for trial. Moreover, judicial economy was fostered by the consolidation. See United States v. Hines, 39 F.3d 74, 79 (4th Cir.1994),
vacated in part on other grounds, Hines v. United States, 516 U.S. 1156, 116 S.Ct. 1038, 134 L.Ed.2d 186 (1996).
Grace claims the circuit court erred in excluding testimony of his witness Mike Grace regarding prior instances of abuse by Julie against the niece. The circuit court excluded Mike Grace's testimony finding Grace was attempting to attack Julie's credibility on the basis of extrinsic evidence, in violation of Rule 608, South Carolina Rules of Evidence, and allowed only testimony regarding Julie's reputation for truthfulness or untruthfulness.
Grace's theory of defense was that the niece was so fearful of Julie's use of physical force to discipline her that the niece concocted the stories of being sexually abused by Grace to escape the household. Grace argues that there was a lack of physical evidence in the case to establish the niece had been sexually assaulted. As a result, the evidence necessary to convict Grace would have to be established through the testimony of the niece and Julie. Therefore, Grace argues, it was essential to his defense that he be allowed to present evidence of Julie's violent nature, and the niece's motive for lying about the sexual assaults. Grace contends the circuit court's ruling limiting his presentation of evidence effectively denied him his right to present his defense.
The Sixth Amendment rights to notice, confrontation, and compulsory process guarantee that a criminal charge may be answered through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence.... The Amendment essentially "constitutionalizes" the right to present a defense in an adversary criminal trial.
State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402 (1986).
As we read Grace's argument at trial for the admission of Mike Grace's testimony, it was based on Rule 608, SCRE. Rule 608(b) provides when specific acts evidence may be used to impeach a witness's testimony.
(b) Specific Instances of Conduct. Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness[.]
Rule 608(a) permits the credibility of a witness to be impeached in the form of opinion or reputation testimony, but only for "truthfulness or untruthfulness." Mike Grace was permitted to state without objection that Julie did not have a reputation "as being a truthful and honest person." As noted above, Rule 608(b) provides, for the purpose of attacking credibility,...
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