State v. Johnson

• Decision Date: 08 February 1999
• Docket Number: No. 24897.,24897.
• Citation: 334 S.C. 78,512 S.E.2d 795
• Court: South Carolina Supreme Court
• Parties: The STATE, Petitioner, v. Iver Norman JOHNSON, Respondent.

334 S.C. 78

512 S.E.2d 795

The STATE, Petitioner, v. Iver Norman JOHNSON, Respondent.

No. 24897.

Supreme Court of South Carolina.

Heard November 5, 1998.

Decided February 8, 1999.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for petitioner.

Senior Assistant Appellate Defender Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

BURNETT, Justice:

Respondent was convicted of three counts of first degree criminal sexual conduct (CSC) with a minor and five counts of committing a lewd act on a child under the age of fourteen. He was sentenced to imprisonment for thirty years on each CSC and fifteen years on each lewd act, the sentences to run consecutively. The Court of Appeals reversed respondent's convictions and sentences. State v. Johnson, Op. No. 97-U653 (S.C.Ct.App. filed Dec. 11, 1997). This Court granted the State's petition for certiorari to review the Court of Appeals' opinion. We affirm in part and reverse in part.

FACTS

Respondent engaged in inappropriate sexual activity with his six year old daughter, Betty, and her friends, April, Nina, Megan and Maryann, ages 8, 9, 4, and 7 respectively. Respondent babysat the victims while their parents worked. The State alleged respondent took advantage of his position of control and the victims' vulnerability, and sexually abused the girls to satisfy his own sexual desires.

According to the victims, respondent rubbed the genital areas of their bodies, both on top of and underneath their clothing, touched their buttocks, and inserted his finger into the vagina of at least one child. Most of this touching occurred in the living room when the girls were sitting on respondent's lap while watching television. However, according to both Betty and April, respondent also touched them in Betty's bedroom. These acts occurred from April 1994 to August 1994.

The girls saw respondent as he touched the others and discussed the abuse among themselves. Eventually, they told Betty's mother, Brenda Johnson, about respondent's conduct. Mrs. Johnson informed the other parents of the accusations and reported the allegations to the police.

Based on the victims' complaints, respondent was arrested and the police searched his apartment. According to the arresting officer, respondent claimed that "[he] could not have done this" because he was impotent. The officer also stated respondent admitted that his hand could have "slipped" one time when one of the girls was sitting on his lap watching television. Respondent denied abusing the girls.

At the trial, respondent's stepdaughter and stepniece testified, when they were approximately the age of the victims, respondent would touch their genital area when in the living room and eventually respondent began to digitally penetrate their vaginas when in the bedroom.

ISSUES

I. Did the Court of Appeals err in finding the trial judge should have granted respondent a directed verdict on two of the CSC charges?

II. Did the Court of Appeals err in finding the trial judge should have allowed respondent to impeach a witness with a prior shoplifting conviction under Rule 609(a)(2), SCRE?

III. Did the Court of Appeals err in finding the trial judge should have granted a mistrial when a State's witness mentioned an offer of a polygraph examination was made to respondent?

IV. Did the Court of Appeals err in finding the admission of the search warrant, affidavit, and return was reversible error?

V. Did the Court of Appeals err in finding the cumulative effect of several errors warranted reversal of respondent's convictions?

DISCUSSION

I.

The State contends the Court of Appeals erred in finding the trial judge should have granted respondent a directed verdict on the two CSC charges concerning Betty and Nina because there was no evidence of a sexual battery.

In ruling on a directed verdict, the trial judge is concerned with the existence of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991). Viewing the evidence in the light most favorable to the State, a jury question is created if there is any direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. Id.

To support a conviction for CSC, there must be evidence of a sexual battery. S.C.Code Ann. § 16-3-655(1) (1985). A sexual battery is defined as an "intrusion, however slight, ... into the genital or anal openings of another person's body." S.C.Code Ann. § 16-3-651(h) (1985). A conviction for a sexual battery may be sustained on the uncorroborated testimony of the victim. S.C.Code Ann. § 16-3-657 (1985). In State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986), the six year old victim testified the defendant touched her with his penis, but could not remember whether he had put it inside her body. However, she indicated it had hurt. This Court found this was evidence of some intrusion and was sufficient to render the issue one for the jury. Id.

Other jurisdictions interpreting similar statutes which require "penetration" find the slightest penetration is sufficient. Full penetration is not necessary. 65 Am.Jur.2d Rape § 3 (1972); Charles E. Torcia, 3 Wharton's Criminal Law § 278 (1995). Further, it is not essential that penetration be proven by testimony of the victim. Instead, it may be established by circumstantial evidence. 65 Am.Jur.2d Rape § 88 (1972); Charles E. Torcia, 3 Wharton's Criminal Law § 278 (1995).

In this case, Nina stated respondent fondled her while she sat on his lap in a recliner chair in the living room. Nina testified respondent touched her "lu-lu" which she described as the bottom part of her body "where I don't think nobody likes to be touched." She stated respondent touched her both over and under her clothes. When asked how this made her feel, Nina responded: "It made me feel bad." A physical examination of Nina did not reveal any evidence of a sexual battery.

Betty testified respondent would sleep in her bed with her and that he woke her up and "touched [her] cooter" on the outside of her underwear. She also testified he touched her "on [her] butt." She indicated it hurt when this happened. Betty stated the abuse only occurred in the bedroom and that respondent did not touch her in the living room. A physical examination of Betty showed she had suffered an injury inside her vagina which was consistent with sexual abuse. The physician who performed the physical examination testified young children are often unable to distinguish between "in" and "out."

April testified respondent rubbed her legs, buttocks and "lu-lu" over her clothes while she was sitting in the chair with respondent in the living room watching television. Further, April testified once when she spent the night with Betty, respondent got in bed with her and "he started putting his fingers in [her]." April's physical examination did not show any signs of sexual battery.

Respondent's stepdaughter and stepniece testified respondent would rub them between their legs when they were in the living room. Further, in the bedroom, respondent would digitally penetrate their vaginas.

Although there was no direct evidence that respondent digitally penetrated Betty, Betty's testimony that respondent touched her and it hurt and the results of her physical examination were sufficient to create a jury question as to whether there was any intrusion. See State v. Mathis, supra

(similar testimony was sufficient to create a jury question on this issue).

However, in Nina's case the evidence was insufficient to create a jury issue on penetration. Nina's testimony did not establish an intrusion. Inappropriate touching can cause a child to "feel bad." Without more, this statement is not sufficient evidence of an intrusion. There was no circumstantial evidence presented to create a question for the jury on the issue. Nina's physical examination revealed no signs of a sexual battery. Further, because Nina claimed respondent fondled her in the living room, April's testimony supported the finding that respondent only touched Nina. According to April, respondent only touched her in the living room and he only attempted penetration in the bedroom. Likewise, respondent's stepdaughter's and stepniece's testimony supported this same conclusion.

Therefore, the Court of Appeals was correct in directing a verdict for respondent on the CSC conviction as to Nina, but it erred in reversing respondent's CSC conviction as to Betty.¹

II

The State contends the Court of Appeals erred in finding a witness may be impeached under Rule 609(a)(2), SCRE, with a prior shoplifting conviction. The Court of Appeals concluded this error prejudicially affected respondent's ability to question the truthfulness of the witness' testimony. State v. Johnson, supra.

The trial judge refused to allow respondent to impeach Cynthia Barfield, April's mother, with a shoplifting conviction. The judge found federal precedent interpreting Rule 609(a)(2), FRE,² which does not allow impeachment by a prior shoplifting conviction, to be persuasive on this issue.

Rule 609(a)(2), SCRE, provides:

For the purpose of attacking the credibility of a witness ... (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

Under this rule, if the conviction involves dishonesty or false statement, it is automatically admissible without having to balance its probative value against its prejudicial effect. Rule 609(a)(2), SCRE, does not define or list the crimes involving dishonesty or false statement.

We agree with the Court of Appeals' holding that a...