State v. Perry

• Decision Date: 06 May 2020
• Docket Number: Opinion No. 27963,Appellate Case No. 2017-001965
• Citation: 842 S.E.2d 654,430 S.C. 24
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Wallace Steve PERRY, Petitioner.

430 S.C. 24

842 S.E.2d 654

The STATE, Respondent,

v.Wallace Steve PERRY, Petitioner.

Appellate Case No. 2017-001965

Opinion No. 27963

Supreme Court of South Carolina.

Heard March 6, 2019

Filed May 6, 2020

Rehearing Denied June 10, 2020

Kerri Rupert, Murphy & Grantland, P.A., of Columbia; Chief Appellate Defender Robert Michael Dudek, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General John Benjamin Aplin, and Assistant Attorney General Vann Henry Gunter Jr., all of Columbia; Solicitor William Walter Wilkins III, of Greenville, for Respondent.

JUSTICE FEW :

Wallace Steve Perry was convicted on two counts of criminal sexual conduct (CSC) with a minor in the first degree and two counts of CSC with a minor in the second degree for sexually assaulting two of his biological daughters. We find the trial court erred by not excluding under Rule 404(b) the testimony of Perry's stepdaughter that Perry also sexually assaulted her more than twenty years earlier. We reverse and remand for a new trial.

I. Facts and Procedural History

In 1993, Perry met and began dating Laura Jones. Perry and Jones never married, but had two sets of twins together. Daughter One and Daughter Two were born in 1994. Daughter Three and a son were born in 1996. Perry and Jones separated in 2000, and agreed Perry would have visitation with the children on weekends. In 2012, Daughter Three told Jones that Perry sexually assaulted her during visitation.

Daughter Two then told Jones that Perry also sexually assaulted her.

A. Daughter Two's and Daughter Three's Testimony

Daughter Two testified at trial that after Perry and Jones separated, Perry moved into a three-bedroom apartment. She shared a bedroom in the apartment with her sisters. Daughter Two testified Perry first sexually assaulted her when she was between five and seven years old. When asked about the first incident, Daughter Two stated she was on Perry's bed watching television when he entered the room, lay down next to her, and digitally penetrated her vagina. After the first incident, Perry began sexually assaulting her almost every weekend during visitation. She testified that around 5:00 or 6:00 a.m. on Saturday and Sunday mornings, Perry would get in the bed she shared with her sisters and digitally penetrate her. She testified the assaults generally involved the use of physical force. Specifically, she testified, "He'd lay in the bed. I would try to pull away from him, but he would grab me with a tighter force so I couldn't get away." She also testified Perry committed oral sexual assault on her on two occasions. The first instance occurred after she fell asleep in a chair watching a movie with her brother and sisters. The second instance occurred in the bedroom she shared with her sisters. She testified Perry said if she told anyone about what happened, she "would get in just as much trouble as he would" and she would be taken away from Jones. Daughter Two stated Perry stopped sexually assaulting her when she was about sixteen years old, and she told Jones about it shortly after Daughter Three did.

Daughter Three testified Perry began sexually assaulting her when she was approximately ten or eleven years old. She testified Perry would come into the bedroom around 5:00 or 6:00 a.m. and get in bed with them. She testified Perry digitally penetrated her vagina on five occasions, but the assaults did not progress beyond digital penetration and did not involve any use of physical force. She testified Perry stopped assaulting her before she reached the age of twelve. After it ended, Daughter Three continued visiting Perry on weekends until she told Jones about it when she was around sixteen. Daughter Three explained she waited to tell Jones because Perry said if she ever told anyone she would get in trouble, and she would be taken away from Jones.

B. Stepdaughter's Testimony

Prior to Perry's trial, the State made a motion to admit the testimony of Perry's stepdaughter from an earlier marriage that Perry sexually assaulted her twenty-two to twenty-seven years earlier. The State argued the trial court should not exclude the stepdaughter's testimony under Rule 404(b) of the South Carolina Rules of Evidence because it fit the "common scheme or plan" exception. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts ... may ... be admissible to show ... the existence of a common scheme or plan ....").

During the pre-trial hearing, the stepdaughter testified that when she was nine years old, Perry entered her room during the night and digitally penetrated her vagina. According to the stepdaughter, Perry continued to sexually assault her periodically over the next four years, and she estimated he digitally penetrated her about twenty times. She testified that on one occasion, Perry assaulted her in the bathtub while her mother was at work. She stated she did not tell anyone because Perry threatened her. She testified, "I was told my mom wouldn't believe me and if I said anything he would make me out to be a liar and then he would hurt my family." The stepdaughter finally told her mother when she was fourteen, and they reported the crimes to authorities shortly afterward. Perry was not charged for sexually assaulting his stepdaughter.

Perry objected to the testimony of his stepdaughter, arguing it should be excluded under Rule 404(b) and did not fit the common scheme or plan exception. The trial court initially reserved ruling on the issue. Later during trial, the court indicated it was inclined to allow the stepdaughter to testify. Perry again objected on the basis of Rule 404(b). The trial court ruled the stepdaughter's testimony was admissible under the common scheme or plan exception.

The jury convicted Perry on all counts, and the trial court sentenced him to thirty years in prison. The court of appeals affirmed. State v. Perry , 420 S.C. 643, 803 S.E.2d 899 (2017). We granted Perry's petition for a writ of certiorari.

II. Analysis

The analysis of the admissibility of the stepdaughter's testimony begins with the question of relevance. See Rule 402, SCRE ("All relevant evidence is admissible ...."). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, SCRE. The stepdaughter's testimony was clearly relevant because if Perry committed similar acts of sexual abuse against a minor in the past, he was more likely to have done it this time too.¹ However, Rule 402 also provides relevant evidence may be excluded "as otherwise provided by ... these rules" or another provision of law.

A. Rule 404(b)

Rule 404(b) of the South Carolina Rules of Evidence provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

Rule 404(b), SCRE.

The rule is often stated in terms of "propensity."

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. ... The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.

Michelson v. United States , 335 U.S. 469, 475, 69 S. Ct. 213, 218, 93 L. Ed. 168, 173-74 (1948) ; see also 3 Michael H. Graham, HANDBOOK OF FEDERAL EVIDENCE § 404:5 (8th ed. 2018) (stating "evidence of the commission of crimes, wrongs or other acts by [the defendant] is inadmissible for the purpose of showing a disposition or propensity to commit crimes"); James F. Dreher, A GUIDE TO EVIDENCE LAW IN SOUTH CAROLINA 35 (South Carolina Bar 1967) ("It is in criminal cases that the law must be the most sternly on guard against allowing the doing of an act to be proved by a propensity to do it."); State v. Fletcher , 379 S.C. 17, 26, 664 S.E.2d 480, 484 (2008) (Toal, C.J., dissenting) (stating "evidence of other crimes, wrongs, or acts is not admissible for purposes of proving that the defendant possesses a criminal character or has a propensity to commit the charged crime"). Thus, Rule 404(b) prevents the State from introducing evidence of a defendant's other crimes for the purpose of proving his propensity to commit the crime for which he is currently on trial.

In any criminal case, however, evidence the defendant committed similar criminal acts has the inherent tendency to show this propensity. In the words of Rule 404(b), it "prove[s] the character of [the] person" and "shows[s] action in conformity" with that character. We discussed this tendency in State v. Lyle , 125 S.C. 406, 118 S.E. 803 (1923). We stated, "Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty," and, "Its effect is to predispose the mind of the juror to believe the prisoner guilty." 125 S.C. at 416, 118 S.E. at 807. We described this type of evidence as having "the inevitable tendency ... to raise a legally spurious presumption of guilt in the minds of the jurors." 125 S.C. at 417, 118 S.E. at 807 ; see also 125 S.C. at 420, 118 S.E. at 808 (stating "such evidence strongly tends to induce the jury to believe that, merely because the defendant was guilty of the former crimes, he was also guilty of the latter"). Thus, evidence of a defendant's other crimes serves the prohibited purpose of showing he has a propensity to engage in criminal behavior.

The question for a trial court, and for this Court on appeal from Perry's conviction, is whether the evidence also serves some...