State v. Scott
| Decision Date | 20 September 2013 |
| Docket Number | No. 5164.,Appellate Case No. 2011–190428.,5164. |
| Citation | 748 S.E.2d 236,405 S.C. 489 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Darren SCOTT, Appellant. |
OPINION TEXT STARTS HERE
Chief Appellate Defender Robert Michael Dudek and Appellate Defender David Alexander, both of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, both of Columbia, for Respondent.
Darren Gerome Scott (Appellant) appeals his convictions of three counts of a lewd act upon a child and one count of second degree criminal sexual conduct with a minor. Appellant argues the trial court improperly admitted evidence of prior abuse allegations (bad act evidence) against Appellant to show the existence of a common scheme or plan. Specifically, Appellant argues the proffered testimony was: (1) not sufficiently similar to the crimes charged; and (2) too remote and, thus, the probative value was substantially outweighed by the danger of unfair prejudice. We disagree and affirm.
This case involved four victims (Victims), as well as two witnesses (404(b) Witnesses 1) who testified to prior bad acts of Appellant. The trial court, finding each 404(b) Witness's testimony was sufficiently similar to the crimes charged and that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, admitted the evidence to prove the existence of a common scheme or plan. Because Appellant now challenges the admission of the 404(b) Witnesses' testimony, as their testimony related to the alleged abuse of each of the four victims, a somewhat extended factual review is essential to a fair appraisal of Appellant's challenge.
Three sisters (then-nineteen-year-old Victim 1, seventeen-year-old Victim 2, and sixteen-year-old Victim 3) participated in a youth dance team at a church in Greenville, South Carolina. At the team's weekly meetings, the group's members danced, listened to worship music, and prayed. The center's art director also regularly talked to the dancers about issues pertinent to adolescent social development. At the November 24, 2008 meeting, the art director spoke about appropriate social media usage; this discourse prompted a male dancer to share with the team that he was a victim of sexual abuse.
Although the boy's disclosure did not pertain to Appellant in any way, Victim 1, Victim 2, and Victim 3 reacted to the boy's disclosure with “an explosion of tears, sobbing, [and] wheezing.” It was then “very obvious [to the art director] that something else was going on, and that it needed to be addressed immediately.” The art director privately encouraged the sisters to talk to someone they trusted.
As the three sisters drove home,2 they discussed the necessity of coming forward about previously experiencing their biological father's (Appellant's) sexually-abusive conduct, in view of the fact that their eight-year-old half-sister (Victim 4) was living with Appellant.3 Shortly thereafter, Victim 1 contacted the art director and disclosed to her the long-term sexual abuse the sisters experienced. The art director alerted the church's risk management department, which contacted the county's sheriff and department of social services. The ensuing investigations resulted in the State's indictment of Appellant for three counts of lewd act upon a minor (Victims 1, 3, and 4), one count of second-degree criminal sexual conduct with a minor (Victim 2), and two counts of first-degree criminal sexual conduct with a minor (Victims 2 and 4).
At the trial's outset, the State moved to admit the testimony of the two 404(b) Witnesses. These witnesses claimed that Appellant sexually abused them in 1987, when the witnesses were approximately eight years old. Thus, the alleged prior bad acts occurred approximately eleven years before Appellant allegedly first abused then-eight-year-old Victim 1.4
The State argued this testimony: (1) was relevant; (2) demonstrated that Appellant abused the witnesses in “ways that are strikingly similar to the [crimes charged],” and that such similarities outweighed the dissimilarities; and (3) the probative value was not substantially outweighed by the danger of unfair prejudice. Appellant objected, primarily referencing the temporal remoteness of the prior allegations of abuse to the charged crimes.5
After reviewing the State's related brief, the trial judge stated he would allow the 404(b) Witnesses to testify, but only after the Victims testified, thus allowing another opportunity to ensure the bad act testimony would demonstrate substantial similarity to the Victims' given testimony. The trial judge then found the testimony would be relevant and proceeded to address the evidence's similarity to the charged crimes, citing the Solicitor's argument that “some nine different elements” of similarity existed:
From what's been set forth as proposed testimony, I think there's a great similarity between the instances to show that there would be a common scheme or plan ..., I think by a clear and convincing standard ... there is sufficient proof.... I think that the similarity is, certainly, close enough there as far as the absence of other Defendants, the location, the ages, the developmental stages of the victims throughout each of these alleged incidents ... [and] that [Appellant] would be in a position of authority.... I think the probative value is stronger and the evidence should be allowed to show ... a common scheme....
The trial judge agreed to reexamine this pre-trial ruling immediately prior to the 404(b) Witnesses offering their testimony.
Thereafter, the trial commenced and all four Victims testified about the nature and circumstances of the sexual abuse they collectively endured. 6 Victim 1, who was twenty-one years old at the time of trial, testified that Appellant: sexually abused her every time she spent the night with him, while under his supervision at his apartment or at Appellant's sister's (her aunt's) home; began abusing her when she was around eight years old; inappropriately touched the Victims every time they spent the night with him; insisted upon bathing all of the Victims, despite the fact that each one was capable of bathing herself; consistently rubbed lotion on each Victim after bathing them, concentrating on each one's buttocks and genital areas; put each Victim to bed one at a time, whereby Appellant would lay on each Victim's bed, place that child on top of him, and would then bounce that child up and down with his hips; 7 played hide and seek with all of the Victims, whereby the children would hide and upon Appellant finding specifically, Victim 2, he would place his face on her genitals while the other Victims remained hidden; 8 and laughed when a child would see him inappropriately touching another child.
Victim 2, who was nineteen years old at the time of trial, also testified about the nature and circumstances of the alleged abuse. She testified that Appellant: sexually abused her every time she spent the night with him, while under his supervision at his apartment or at Appellant's sister's house; began sexually abusing her when she was around nine years old; would tell her how to get in the tub and begin washing her, despite Victim 2 asserting, “No, I can wash myself;” “would start rubbing lotion on [her genitals and buttocks];” would watch the children shower; 9 removed her clothing while she was sleeping; placed his hands inside her pants while she watched television and would rub her skin; and stopped abusing her when she was around fifteen years old.
Victim 3 was sixteen years old at the time of the trial and testified that Appellant: sexually abused her frequently while she was under his supervision at his apartment or at Appellant's sister's house; began sexually abusing her when she was around eight years old; would wash her, even though Victim 3 “knew [she] could do it by [her]self” and would tell Appellant she didn't need his help; “would rub [lotion] all over [their] bodies;” would rub his fingers inside and outside of her underwear; would play hide and seek with the Victims, whereby all Victims would hide and, upon Appellant finding specifically, Victim 2, Appellant would place his face on the genitals of Victim 2 while the other children remained hidden; would place a Victim on his hips, and “make [her] go up and down;” made her touch his genitals and would “laugh” when she resisted; would “laugh” after an incident of abuse; stopped abusing her when she was around fourteen years-old.
Victim 4, who was ten years old at the time of trial, testified that Appellant: sexually abused her at his apartment; inappropriately touched her prior to bedtime; and would often inappropriately touch her while she watched television.
After all four Victims testified, the prosecution again moved to present the 404(b) Witnesses. After recognizing Appellant's renewed and continuing objection, the trial judge allowed both 404(b) Witnesses to testify.
April, who was one of the 404(b) Witnesses, was thirty years old at the time of trial. She testified that in the late 1980s, she often spent the night with her older, then-nineteen-year-old cousin, Beverlyn, who was Appellant's then-live-in girlfriend and, in due course, the mother of Victims 1, 2, and 3. April attested that during her visits Appellant: would dry her off when she got out of the shower, “tak[ing] his time when he got to [her genitals],” despite her ability to dry herself; rubbed lotion on her entire body; played hide and seek with her, whereby she was often separated for long periods of time alone with Appellant; and crawled into bed with her, placed his hand beneath her underwear, and rubbed her genitals. April testified this abuse occurred when she was around seven or eight years old.
The other 404(b) Witness was thirty-year-old Deidra, a cousin of...
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