State v. Nelson, 24778.

CourtUnited States State Supreme Court of South Carolina
Citation501 S.E.2d 716,331 S.C. 1
Decision Date06 April 1998
Docket NumberNo. 24778.,24778.
PartiesThe STATE of South Carolina, Respondent, v. Larry Don NELSON, Petitioner.

Jack B. Swerling, Columbia, for petitioner.

Charles Molony Condon, Attorney General, John W. McIntosh, Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, William Edgar Salter, III, Senior Assistant Attorney General, Columbia; and Donald V. Myers, Solicitor, Eleventh Judicial Circuit, Lexington, for respondent.

WALLER, Justice:

Petitioner Larry Don Nelson was convicted of four counts of first degree criminal sexual conduct ("CSC") with a minor, and four counts of lewd act on a minor. The victim was a three year old child. The offenses allegedly occurred between December 1991 and June 1992, when the victim would accompany her father to Petitioner's home (to visit Petitioner's brother, with whom Petitioner lived). All of the offenses allegedly occurred in Petitioner's bedroom.

Petitioner was sentenced to thirty years imprisonment for each count of CSC, and to ten years imprisonment for each count of lewd act. The sentences were ordered to run consecutively. The Court of Appeals affirmed Petitioner's conviction. State v. Nelson, 322 S.C. 377, 471 S.E.2d 767 (Ct.App. 1996). This Court granted certiorari to consider whether certain evidence was properly admitted at trial. We find it was not, reverse Petitioner's convictions, and remand for a new trial.

ISSUES
I. Did the trial court err in admitting certain physical evidence found in Petitioner's bedroom?
II. Did the trial court err in admitting details of post-arrest statements Petitioner made to police?
DISCUSSION
I. Physical Evidence

At trial, the State introduced the following evidence, consisting of exhibits or testimony about exhibits seized from Petitioner's bedroom after his arrest1:

(1) Two stuffed animals, "Cookie Monster" and "Oscar the Grouch."
(2) Testimony about some fifty-eight homemade videotapes containing various segments taped from television programs, including a school district's schedule of events, "Mr. Knozit" shows, children's aerobics, cartoons, children's game shows, young girls' Olympic gymnastic events, and a "just say no"-type show teaching children about molestation.
(3) Excerpts from Grimm's Complete Fairy Tales, specifically "The Fitcher's Bird Tale," a story about a wizard who takes young girls from their homes (parts of which had been underlined). Attached to the front page was a laminated picture of a young, three to four year-old white child with long brown hair.2 Inserted in the book elsewhere were pictures of "Save the Children" advertisements about young female children with brown hair. On the back of one of these advertisements was an article entitled "Modern Day Monsters," the subject of which was child molestation.
(4) A photo album containing a collage of magazine pictures of young girls dressed variously in gymnastic clothes, underwear, bathing suits, and full clothing.
(5) Petitioner's wallet, containing his driver's license (showing his DOB as 1/4/50), a "punch-out label" containing Punky Brewster's name, and Petitioner's membership card to the official Punky Brewster fan club.3
(6) A picture frame containing a commercial picture of a young white female with long brown hair, dressed in gymnastic clothing.
(7) A laminated picture of a young white female with shoulder-length brown hair, lying on a couch.
(8) A laminated picture on a card of a young white female with long brown hair, wearing night clothing, apparently cut from a magazine advertising circular.
(9) A picture frame containing two laminated pictures of the same young white girl, apparently cut from a magazine advertisement, with long brown hair.
(10) One of six offered pictures of Punky Brewster.4

Petitioner argued the evidence was improper character evidence and should be excluded.

While initially, during a motion in limine hearing, the judge thought the offer of evidence was "ludicrous," he changed his mind after the State put up the testimony of an expert on sexual trauma and abuse of children. In part, this witness testified about general characteristics of pedophiles.5 She testified pedophiles often have fantasies about taking children away from other adults. She also testified pedophiles often "have a pretty good stash" of childlike items, including videotapes, children's books, children's clothing, children's toys, photographs, drawings, and pictures, in part used for sexual gratification. When the State then moved to introduce the physical evidence later in the trial, the judge overruled Petitioner's argument it was improper character evidence, finding it was probative not of a "character issue" but of a "personality characteristic."

The Court of Appeals affirmed the admission of evidence, holding that "[w]hether or not the evidence in question incidentally reflected poorly on [Petitioner's] character, it was relevant to show [Petitioner's] motive to commit the crimes for which he was charged." 322 S.C. at 381,471 S.E.2d at 769. It then found the probative value of the evidence outweighed any danger of unfair prejudice from its admission. Id. at 382, 471 S.E.2d at 770. Petitioner argues error in this holding. We agree.6

In a criminal case, the State cannot attack the character of the defendant unless the defendant first places his character in issue. Mitchell v. State, 298 S.C. 186, 379 S.E.2d 123 (1989) (per curiam). In a similar vein, evidence of other crimes or bad acts is generally inadmissible to prove the crime charged unless the evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan, or (5) identity. State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).7 Both rules are grounded on the policy that character evidence is not admissible "for purposes of proving that the accused possesses a criminal character or has a propensity to commit the crime with which he is charged." State v. Peake, 302 S.C. 378, 380, 396 S.E.2d 362, 363 (1990).

We find the evidence clearly inadmissible under these standards. As the trial judge himself recognized, its only relevance is as it reflects on an aspect of Petitioner's character, i.e. that he is a pedophile.8 We find the distinction between "character" and "personality characteristic" misplaced. "The term `character' refers to a generalized description of a person's disposition or a general trait such as honesty, temperance or peacefulness. Generally speaking, character refers to an aspect of an individual's personality which is usually described in evidentiary law as a `propensity.' " State v. Smith, 84 Ohio App.3d 647, 617 N.E.2d 1160, 1169 (1992), cert. denied, 66 Ohio St.3d 1488, 612 N.E.2d 1244 (1993) (internal quotation omitted) (finding testimony regarding pedophile characteristics probative of the issue of character). See also Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 4.11 (1995) (as used in federal rules, "character" means "a person's disposition or propensity to engage or not engage in various forms of conduct"). Such evidence could only invite the jury to infer Petitioner was acting in conformity with this character trait when he committed the crimes with which he was charged. Because this is an improper basis upon which to determine guilt, the evidence should not have been admitted. See, e.g., Underwood v. State, 309 S.C. 560, 563-64, 425 S.E.2d 20, 23 (1992)

(expert testimony regarding "common profile" of people who sexually abuse children admissible because it was offered to explain physical injuries of victim as opposed to "personality or character traits which petitioner possessed in order to identify him as the offender").

Several states have rejected testimony or evidence showing a defendant is a pedophile for this exact reason. See, e.g., Turtle v. State, 600 So.2d 1214, 1221 (Fla.Dist.Ct.App.1992)

(error in admitting expert testimony about characteristics of pedophile because it was asking "the jury to convict because the defendant fit a pedophile profile"); Francis v. State, 512 So.2d 280, 282 (Fla.Dist.Ct.App.1987) (error in admitting expert testimony that defendant has a "personality characteristic of being attracted to children"); State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988) (error in admitting expert testimony that defendant had character traits consistent with those of known child abusers); People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848, 853 (1987) (error in admitting evidence seized from defendant's apartment including NAMBLA9 newsletters, photographs, and films because "the true purpose behind the introduction of this evidence was to expose defendant's sexual preferences and attitudes in order to demonstrate a propensity to commit the crimes charged"); Smith, 617 N.E.2d at 1160 (error in admitting expert testimony on general pedophile characteristics); Brewington v. State, 802 S.W.2d 691, 692 (Tex.Crim.App.1991) (en banc) (reversing conviction because "it is clear from the record that the prosecutor sought to introduce testimony that appellant was a fixated pedophile solely to prove appellant's propensity to molest children and that he acted in conformity therewith when he committed the charged offense").

In Dyer, the Supreme Court of Kentucky addressed a factual scenario very similar to the case sub judice. 816 S.W.2d 647. The defendant was on trial for sodomizing a child under the age of twelve. The state introduced evidence seized from the defendant's apartment, including old posters of former teenage idols, nude pictures and articles from pornographic magazines, a pamphlet about homosexual activity, pictures of boys cut from newspapers, and other publications. The police officer describing the seized evidence was allowed to testify about general pedophile characteristics,...

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