State v. Nelson
Decision Date | 06 April 1998 |
Docket Number | No. 24778.,24778. |
Citation | 501 S.E.2d 716,331 S.C. 1 |
Court | South Carolina Supreme Court |
Parties | The 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.
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.
At trial, the State introduced the following evidence, consisting of exhibits or testimony about exhibits seized from Petitioner's bedroom after his arrest1:
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. 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) ( testimony regarding pedophile characteristics probative of the issue of character). See also Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 4.11 (1995) ( ). 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)
(. )
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)
( ); Francis v. State, 512 So.2d 280, 282 (Fla.Dist.Ct.App.1987) ( ); State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988) ( ); People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848, 853 (1987) ( ); Smith, 617 N.E.2d at 1160 ( ); Brewington v. State, 802 S.W.2d 691, 692 (Tex.Crim.App.1991) (en banc) ( ).
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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