State v. Jolly

• Decision Date: 17 January 1991
• Docket Number: No. 1618,1618
• Citation: 402 S.E.2d 895,304 S.C. 34
• Parties: The STATE, Respondent, v. Lester JOLLY, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 895

402 S.E.2d 895

304 S.C. 34

The STATE, Respondent, v. Lester JOLLY, Appellant.

No. 1618.

Court of Appeals of South Carolina.

Heard Jan. 17, 1991.

Decided Feb. 25, 1991.

Certiorari Denied June 14, 1991.

Asst. Appellate Defender Tara Dawn Shurling, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attorneys General Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Sol. Randolph Murdaugh, III, Hampton, for respondent.

SANDERS, Chief Judge:

Appellant Lester Jolly was convicted of criminal sexual conduct in the first degree (i.e., sexual battery where the victim is less than eleven years of age). The single issue presented on appeal is whether the conviction should be reversed because the trial judge allowed "hearsay testimony." We affirm.

This is a horror story. The victim is a child. She was twelve years old at the time of trial. When she was in the third grade, she moved from the home of her mother to that of her maternal grandmother. Her grandmother lived in a house trailer. Also living in the trailer were two of her uncles and her grandmother's husband. When asked why she did not live with her mother, she replied, "I wanted to stay at my grandmother's so I could help out."

The child did not come back to live with her mother until about the time she entered the fifth grade. For two weeks, she complained of severe abdominal pain. Her mother finally took her to a doctor. Her female organs were found to be "a solid pelvic mass." Her condition was diagnosed as "life-threatening." A complete hysterectomy was performed. Cultures taken during the course of surgery revealed that she had gonorrhea, a venereal disease transmitted through direct sexual contact.

The child's two uncles were charged with criminal sexual conduct. One uncle pleaded guilty. The other was convicted. Her grandmother's husband was also charged and convicted. He is Lester Jolly, the appellant in this case. The child calls him "granddaddy."

At trial, the child testified that Jolly repeatedly engaged in sexual intercourse with her. No useful purpose would be served by quoting her testimony. Suffice it to say that she testified explicitly and graphically. On cross-examination, however, she admitted that, on a prior occasion, she told a relative it was her uncles, not Jolly, who had abused her.

Two witnesses testified the child made prior out-of-court statements consistent with her testimony that Jolly abused her. One of the witnesses, a social worker, testified that immediately after the surgery the child said Jolly "messed with her." Jolly objected on the ground that the prior statement was hearsay. The trial judge overruled his objection. The other witness testified that the child previously said the same thing to him. For some reason, Jolly did not object to his testimony . Nor does he present any issue on appeal regarding the testimony of this witness. Rather, he argues only that the trial judge erred in allowing the testimony of the social worker and that his conviction should be reversed for this reason.

Even where a witness testifies, not every prior out-of-court statement of the witness is admissible. State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987). Our Supreme Court has recognized two exceptions to the rule against hearsay which allow prior consistent statements of a witness to be admitted. The first exception is where the witness has been impeached by proof that the witness has made a prior inconsistent statement. Burns v. Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960). In this situation, proof is allowed that the witness made a prior consistent statement; provided, however, that the prior consistent statement must have been made before "the existence of [the] relation [of the witness] to the cause." Id. at 337, 117 S.E.2d at 310. The second exception is where the victim in a criminal sexual conduct case testifies. State v. Barrett, 299 S.C. 485, 386 S.E.2d 242 (1989). In this situation, evidence that the victim previously complained of the assault is admissible; provided, however, that "the evidence must be limited to the time and place of the assault, and may not include particulars or details." Id. at 487, 386 S.E.2d at 243.

Jolly argues that neither exception is applicable here. He argues that the first exception is inapplicable because the child's prior statement to the social worker was not made before her "relation to the cause." He argues that the second exception is inapplicable because the prior statement was not "limited to the time and place of the assault." It is unnecessary for us to address his arguments directly because we are convinced that any error in admitting evidence of the prior consistent statement was harmless.

A defendant seeking reversal based on error in the admission of evidence has the burden of showing that the evidence was prejudicial. State v. McElveen, 280 S.C. 325, 313 S.E.2d 298 (1984). Errors are harmless where they could not reasonably have affected the result of the trial. State v. Mitchell, 286 S.C. 572, 336 S.E.2d 150 (1985). "[T]he materiality and prejudicial character of the error must be determined from its relationship to the entire case." Id. at 573, 336 S.E.2d at 151. Our Supreme Court has affirmed criminal cases, including death penalty cases, based on harmless error. E.g., State v. Truesdale, 285 S.C. 13, 328 S.E.2d 53 (1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1878, 85 L.Ed.2d 170 (1985), reh'g denied, 471 U.S. 1120, 105 S.Ct. 2370, 86 L.Ed.2d 268 (1985). The improper admission of hearsay constitutes reversible error only if its admission is prejudicial. Mitchell, 286 S.C. 572, 336 S.E.2d 150. Improperly admitted hearsay which is merely cumulative to other evidence may be viewed as harmless. State v....