State v. Luckabaugh, No. 2689

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY; HOWELL, C.J., and ANDERSON
Citation489 S.E.2d 657,327 S.C. 495
PartiesThe STATE, Respondent, v. Clair E. LUCKABAUGH, Appellant. . Heard
Decision Date03 June 1997
Docket NumberNo. 2689

Page 657

489 S.E.2d 657
327 S.C. 495
The STATE, Respondent,
v.
Clair E. LUCKABAUGH, Appellant.
No. 2689.
Court of Appeals of South Carolina.
Heard June 3, 1997.
Decided June 30, 1997.
Rehearing Denied Sept. 3, 1997.

[327 S.C. 496] Deputy Chief Attorney Joseph L. Savitz, III, of SC Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor David P. Schwacke, Charleston, for respondent.

GOOLSBY, Judge.

This is a criminal case. The trial court sentenced Clair E. Luckabaugh to ten years

Page 658

imprisonment following his conviction by a jury of third-degree assault with intent to commit criminal sexual conduct. The questions on appeal relate to the admission of certain evidence. We affirm.
FACTS

On May 17, 1994, the Medical University of South Carolina (MUSC) admitted Mina Thompson as a patient. Thompson, [327 S.C. 497] then twenty-two, suffered severe brain damage as a result of having been beaten during a robbery at her place of employment. She was in and out of consciousness and unable to speak. Thompson also wore restraints.

Dr. Kris Stegman, one of Thompson's treating physicians, received two calls around midnight on June 17, 1994, advising him that Thompson had vomited. He arrived at the hospital about an hour and a half later and went to Thompson's room to check on her. He found the door to Thompson's room closed. A note taped to the door advised she was bathing. Stegman thought the note odd because doors to the rooms of head-injury patients were not closed in the middle of the night, patients were ordinarily not bathed at that hour, and only hospital personnel would be at the hospital at that time of night.

Stegman tapped lightly on the door and, hearing no reply, entered the room. There he saw Thompson, lying near the left, bottom edge of her bed with her buttocks completely exposed. He also saw Luckabaugh, a male nurse, standing at Thompson's bed, his hips aligned with Thompson's buttocks. Thompson's restraints had been undone.

Luckabaugh appeared noticeably shaken and his hands trembled nervously as he attempted to push Thompson back into her bed and cover her up. When Stegman asked Luckabaugh what was going on, Luckabaugh said Thompson had vomited and he had been cleaning her. Stegman, however, neither smelled nor saw any vomit. He saw only some greenish substance on Thompson's tracheostomy collar in an amount so small it could have been easily wiped off. Luckabaugh wore no gloves, a precaution usually taken when a nurse cleans a patient or changes a diaper. Also, Stegman saw nothing to indicate Thompson was being bathed and saw neither fresh sheets nor a fresh gown in Thompson's room.

As Stegman moved closer to the bed, he saw Luckabaugh's pants zipper was open. At that point, Luckabaugh turned his back on Stegman, moved both his hands to his crotch, and made a vertical movement. As he did so, Stegman heard the sound of a zipper. Stegman also noticed Luckabaugh appeared to have an erection.

[327 S.C. 498] With Luckabaugh out of the room, Stegman identified himself to Thompson. She squeezed his hand tightly after he placed his hand in hers. Stegman asked Thompson "if everything was okay." She "shook her head no."

An MUSC investigator, Lieutenant Robert Brown, later questioned Luckabaugh. Luckabaugh wore a "fanny pack" when Brown questioned him and denied any wrongdoing. He specifically denied having his pants unzipped when Stegman came into Thompson's room. Luckabaugh told Brown the zipping sound heard by Stegman was caused by his zipping the fanny pack shut.

After the police arrested Luckabaugh, a finance company repossessed Luckabaugh's mobile home and had some of its employees box up his belongings for storage. A member of the packing crew thought some of the material found in Luckabaugh's home looked suspicious and voiced his concern to his supervisor. The supervisor contacted the sheriff's department, and sheriff deputies, after examining the material, seized a number of items. The State placed some of these items into evidence at Luckabaugh's subsequent trial.

DISCUSSION

I.

The first question Luckabaugh raises concerns the testimony of the witness Edmonde Towner. He argues the trial court should not have allowed her testimony because it was not clear and convincing. See State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989) (evidence of prior bad acts that did not result in a conviction must be established by clear and convincing evidence).

Page 659

Towner, a deaf, seventy-year-old former Swiss citizen who spoke only French, testified at trial, with her sister, Juliette Cato, translating for her. Towner, through Cato, testified in front of the jury that, while she was a patient at MUSC, Luckabaugh, on Saturday, May 14, 1994, came into her hospital room and pulled her panties all the way down while giving her a shot in the hip. Towner further testified that the next evening she awoke from her sleep in her darkened, closed hospital room when she felt the bed shake and someone [327 S.C. 499] spread her legs and caress her around her crotch. After she pressed a call button by her bed, Towner saw Luckabaugh leave her room.

Cato herself testified Towner appeared extremely upset on Monday, May 16, 1994, when she visited with Towner at the hospital and saw blood on her sister's hand. She further testified Towner had told her about a struggle with Luckabaugh and had referred to him as "a pig."

At no time during Towner's testimony did Luckabaugh offer any contemporaneous objection based upon her...

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4 practice notes
  • In re Treatment and Care of Luckabaugh, No. 25503.
    • United States
    • United States State Supreme Court of South Carolina
    • July 22, 2002
    ...in the Third 351 S.C. 129 Degree of a comatose patient in his care. His conviction was affirmed on appeal. See State v. Luckabaugh, 327 S.C. 495, 489 S.E.2d 657 (Ct.App.1997). Subsequent to his scheduled release he came under review as a sexually violent Judge Daniel E. Martin, Sr., convene......
  • State v. Martucci, No. 4438.
    • United States
    • Court of Appeals of South Carolina
    • September 24, 2008
    ...State failed to show the prior acts by clear and convincing evidence. The issue cannot be considered on appeal. See State v. Luckabaugh, 327 S.C. 495, 499, 489 S.E.2d 657, 659 (Ct.App.1997) (issue not preserved when a defendant failed to object to testimony as less than clear and convincing......
  • State v. King, Appellate Case No. 2012–213461.
    • United States
    • Court of Appeals of South Carolina
    • March 16, 2016
    ...the issue could not be considered on appeal. 380 S.C. 232, 256–57, 669 S.E.2d 598, 611 (Ct.App.2008) ; see also State v. Luckabaugh, 327 S.C. 495, 499, 489 S.E.2d 657, 659 (Ct.App.1997) (concluding that the issue was not preserved because the defendant failed to object to the testimony as l......
  • Mortgage Recovery Fund-Riverbend, Ltd. v. Heritage Clipper Riverbend Trust, FUND--RIVERBEN
    • United States
    • Court of Appeals of South Carolina
    • June 30, 1997
    ...an action at law for money damages against Sentry. We therefore hold that under Rule 38(a), SCRCP, Sentry was entitled to a jury trial. [327 S.C. 495] Accordingly, the decision of the master REVERSED. CURETON and STILWELL, JJ., concur. ...
4 cases
  • In re Treatment and Care of Luckabaugh, No. 25503.
    • United States
    • United States State Supreme Court of South Carolina
    • July 22, 2002
    ...in the Third 351 S.C. 129 Degree of a comatose patient in his care. His conviction was affirmed on appeal. See State v. Luckabaugh, 327 S.C. 495, 489 S.E.2d 657 (Ct.App.1997). Subsequent to his scheduled release he came under review as a sexually violent Judge Daniel E. Martin, Sr., convene......
  • State v. Martucci, No. 4438.
    • United States
    • Court of Appeals of South Carolina
    • September 24, 2008
    ...State failed to show the prior acts by clear and convincing evidence. The issue cannot be considered on appeal. See State v. Luckabaugh, 327 S.C. 495, 499, 489 S.E.2d 657, 659 (Ct.App.1997) (issue not preserved when a defendant failed to object to testimony as less than clear and convincing......
  • State v. King, Appellate Case No. 2012–213461.
    • United States
    • Court of Appeals of South Carolina
    • March 16, 2016
    ...the issue could not be considered on appeal. 380 S.C. 232, 256–57, 669 S.E.2d 598, 611 (Ct.App.2008) ; see also State v. Luckabaugh, 327 S.C. 495, 499, 489 S.E.2d 657, 659 (Ct.App.1997) (concluding that the issue was not preserved because the defendant failed to object to the testimony as l......
  • Mortgage Recovery Fund-Riverbend, Ltd. v. Heritage Clipper Riverbend Trust, FUND--RIVERBEN
    • United States
    • Court of Appeals of South Carolina
    • June 30, 1997
    ...an action at law for money damages against Sentry. We therefore hold that under Rule 38(a), SCRCP, Sentry was entitled to a jury trial. [327 S.C. 495] Accordingly, the decision of the master REVERSED. CURETON and STILWELL, JJ., concur. ...

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