State v. Perez

• Decision Date: 06 June 2018
• Docket Number: Opinion No. 27810,Appellate Case No. 2015-001576
• Citation: 423 S.C. 491,816 S.E.2d 550
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent/Petitioner, v. Venancio Diaz PEREZ, Petitioner/Respondent.

423 S.C. 491

816 S.E.2d 550

The STATE, Respondent/Petitioner,

v.Venancio Diaz PEREZ, Petitioner/Respondent.

Appellate Case No. 2015-001576

Opinion No. 27810

Supreme Court of South Carolina.

Heard November 30, 2016

Filed June 6, 2018

Rehearing Denied August 2, 2018

Jason S. Luck, of Garrett Law Offices, of North Charleston, and Chief Appellate Defender Robert M. Dudek, of Columbia, for Petitioner/Respondent.

Attorney General Alan M. Wilson and Special Assistant Attorney General Amie L. Clifford, both of Columbia, and Solicitor Scarlett A. Wilson, of Charleston, for Respondent/Petitioner.

CHIEF JUSTICE BEATTY :

We granted cross-petitions for a writ of certiorari to review the Court of Appeals' unpublished decision in State v. Perez , Op. No. 2015-UP-217, 2015 WL 1933739 (S.C. Ct. App. filed May 8, 2015), wherein the court determined: (1) the trial court's refusal to admit testimony of a witness' U-visa¹ application was harmless error; (2) the trial court properly admitted evidence of prior bad acts Venancio Diaz Perez committed against another minor; and (3) Perez's sentence was vindictive and a violation of due process. We reverse the Court of Appeals' decision and remand for a new trial.

I. Factual and Procedural History

Perez was indicted on charges of criminal sexual conduct with a minor and lewd act on a minor for acts committed on a child ("Minor 1") whom his wife babysat in their residence. Prior to trial, the judge held an in camera hearing to determine whether to allow another child ("Minor 2"), who Perez's wife also babysat, to testify at trial regarding acts of sexual abuse Perez allegedly committed against Minor 2. After hearing testimony from both children, the trial court decided to allow Minor 2 to testify pursuant to State v. Wallace , 384 S.C. 428, 683 S.E.2d 275 (2009).²

At trial, Minor 1 testified to six incidents involving Perez. Minor 1 described two similar incidents wherein she went into one of the bedrooms to retrieve her PlayStation Portable at which time Perez grabbed her, pulled her into the closet, and began touching her. In the first incident, Minor 1 alleged Perez "put his hands under [her] clothes and stuck his finger inside of [her]." In the second, Minor 1 stated Perez touched her "front" and "bottom," but, unlike the first incident, there was no digital penetration. Minor 1 also described another incident in which Perez touched her "front" and "bottom" after she hid in a closet during a game of hide-and-seek. Like the second encounter, there was no penetration. In the fourth encounter, Minor 1 testified that while Perez's children were standing in front of the television "acting famous," Perez situated himself in an area of the room so that no one else could see, pulled his pants down, and showed Minor 1 his privates. In another, Minor 1 claimed Perez touched her chest and "front" and bit her on her breasts after she helped him hang wallpaper in the bathroom. In the last incident, Perez began chasing Minor 1 while she was watching a movie so she hid under a bed so that he could not reach her.

On cross-examination, Minor 1 admitted she told her therapist Perez never pulled her into the closet or digitally penetrated her during the first encounter because Perez's children walked in before anything could happen. Minor 1 also stated she did not mention the incident of Perez chasing her under the bed in her movie narrative with her therapist in which she proclaimed to have disclosed everything that occurred between her and Perez. Nor did she include the incident of Perez biting her chest, but testified she nevertheless disclosed that encounter with her therapist. Additionally, at trial, the State asked Minor 1 whether she was wearing a bra at the time of the wallpaper incident. Minor 1 answered "No," explaining she was too young to wear a bra at that time. On cross-examination, however, Minor 1 stated she told her therapist that she was wearing a bra during one of the encounters with Perez.

Minor 2 subsequently testified to two incidents of sexual abuse involving Perez. In one incident, Minor 2 testified she was in one of the bedrooms lying down when Perez got on top of her and touched her on her "top and bottom privates." In the other, Minor 2 stated she fell asleep on the couch in the living room watching a movie and Perez came up behind her and touched her on her "front private."³

In addition to Minor 1 and Minor 2, the State called the mother of Minor 1 ("Mother 1") and the mother of Minor 2 ("Mother 2") to testify. On cross-examination, Mother 1 stated she came to the United States from Mexico illegally in 2000. After Minor 1 reported the abuse, the victim advocate informed Mother 1 about U-visas and directed Mother 1 to an attorney who could assist her in filing an application. As a result of submitting her U-visa application, Mother 1 testified she became eligible for food stamps, which she now receives. Moreover, without the U-visa application, Mother 1 explained she would be considered an illegal immigrant and would be at risk of being deported.

Defense counsel attempted to elicit similar testimony from Mother 2, who was also in the country illegally, but the trial court refused to admit testimony concerning Mother 2's U-visa application, stating:

I let you go into the visa and the legal status [of Mother 1] because she was the mother of the victim. I'm not going there with this witness. That has nothing to do with this case. I don't think it has anything to do with bias or anything and we're not going there, okay?

Nevertheless, the trial court permitted defense counsel to proffer the following testimony outside the presence of the jury: Mother 2 learned about U-visas from an information sheet she received at the Lowcountry Children's Center when her daughter was being examined; Mother 2 had applied for a U-visa with the assistance of an attorney; and, unlike Mother 1, Mother 2 had not applied for any government benefits.

At the conclusion of the trial, the jury returned a verdict of not guilty of criminal sexual conduct with a minor, but ultimately found Perez guilty of lewd act on a minor and of assault and battery of a high and aggravated nature ("ABHAN"). The trial court sentenced Perez to fifteen years for the lewd act on a minor conviction and to a consecutive ten years for the ABHAN conviction with credit for time served. Perez subsequently objected, arguing the sentence was vindictive and punishment for exercising his right to trial. The trial court denied Perez's motion to find the sentence vindictive and Perez appealed his convictions and sentence.

In an unpublished opinion, the Court of Appeals determined the trial court erred in refusing to allow evidence of Mother 2's U-visa application into evidence, but determined the error was harmless beyond a reasonable doubt. State v. Perez , Op. No. 2015-UP-217 (S.C. Ct. App. filed May 8, 2015), 2015 WL 1933739, *3-4. The court affirmed the trial court's decision to admit Minor 2's testimony pursuant to Wallace . Id . at *2. Finally, the court reversed and remanded for resentencing after determining Perez's sentence was vindictive and a violation of due process. Id . at *4-5. Then-Chief Judge Few filed a concurring opinion wherein he concurred with the majority as to the first two issues, but wrote separately to note that he would remand the case to the trial court to clarify the basis on which it sentenced Perez. Id . at *6.

Both parties petitioned this Court for a writ of certiorari. Perez argued the Court of Appeals erred in: (1) finding the trial court's refusal to admit evidence of Mother 2's U-visa harmless error; (2) affirming the trial court's admission of Minor 2's testimony; and (3) failing to remand the case to a different judge for sentencing. The State contended the Court of Appeals erred in finding Perez's sentence was vindictive. We granted both petitions.

II. Standard of Review

In criminal cases, this Court sits solely to review errors of law. State v. Baccus , 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "This Court will not disturb a trial court's ruling concerning the scope of cross-examination of a witness to test his or her credibility, or to show possible bias or self-interest in testifying, absent a manifest abuse of discretion." State v. Gracely , 399 S.C. 363, 371, 731 S.E.2d 880, 884 (2012). An abuse of discretion occurs when the trial court's ruling is based on an error of law or is based on findings of fact that are without evidentiary support. State v. Jennings , 394 S.C. 473, 477-78, 716 S.E.2d 91, 93 (2011).

III. Discussion

Whether the Court of Appeals erred in finding the trial court's refusal to admit evidence of Mother 2's U-visa was harmless error.

The Court of Appeals held the trial court's refusal to allow Perez to cross-examine Mother 2 regarding her U-visa application constituted a violation of Perez's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Perez , at *3 ; see U.S. Const. amend. VI (stating "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him"); Delaware v. Van Arsdall , 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)(providing a defendant demonstrates a Confrontation Clause violation when he is prohibited from "engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness ... ‘from which jurors ... could appropriately draw inferences relating to the reliability of the witness’ " (quoting Davis v. Alaska , 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ) ).

According to the Court of Appeals:

[T]here is no question Mother 2's veracity and potential bias was an important issue. Any evidence showing Mother 2 applied for or obtained the visa because her daughter was a victim of abuse and they both assisted with the prosecution was relevant impeachment evidence. Mother 2's immigration status and possible visa

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