State v. Tutton, 3630.

• Court: Court of Appeals of South Carolina
• Citation: 580 S.E.2d 186,354 S.C. 319
• Decision Date: 21 April 2003
• Docket Number: No. 3630.,3630.
• Parties: The STATE, Respondent, v. Danny Ray TUTTON, Appellant.

354 S.C. 319
580 S.E.2d 186

The STATE, Respondent,
v.
Danny Ray TUTTON, Appellant

No. 3630.

Court of Appeals of South Carolina.

Submitted January 10, 2003.

Decided April 21, 2003.

Rehearing Denied May 22, 2003.

354 S.C. 322

Assistant Appellate Defender Aileen P. Clare, of Columbia; for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Harold M. Coombs, of Columbia; Solicitor William Townes Jones, of Greenwood; for Respondent.

HEARN, C.J.:

Danny Ray Tutton was indicted for second-degree criminal sexual conduct (CSC) with a minor, and two counts of lewd act on a minor. A jury found him guilty as charged, and he was sentenced to twenty years confinement on the CSC charge, a consecutive term of fifteen years for the first lewd act, and an additional consecutive term of fifteen years for the second lewd act, which was suspended upon the service of five years probation. Tutton appeals, arguing the trial judge erred by admitting evidence of uncharged criminal conduct under the common scheme or plan exception to State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), and Rule 404(b), SCRE.

354 S.C. 323

I. FACTS AND PROCEDURAL HISTORY

In July of 2000, Tutton's live-in girlfriend, Tammy, invited thirteen-year old Mary and her younger sisters, Jane¹ and Tanya,² to Tutton's home for several days to play with Tammy's daughter, Sarah. During the stay, the girls, Tammy, and Tutton spent the days picnicking, washing Tutton's truck, and swimming in the river and in Tutton's pool. The charges facing Tutton arose out of the following contested facts.

The first night, all four girls slept on the floor by Tutton's bed. Jane testified that while she was sleeping, Tutton began rubbing her "butt." She alleged that after she rolled over, Tutton was able to reach under the covers and put his hands inside her shorts to rub her private parts. Jane further stated "He stuck his fingers inside of me." After Tutton fell asleep, Jane left the room.

On the second night, Tutton was sleeping on the couch while the girls were sleeping on a pallet of blankets placed on the floor nearby. Mary testified that while Tutton was lying on the couch, he began to touch her "butt" outside the covers. When she turned over, he touched her "private part." Mary stated she kept the blankets tightly around her, and therefore, Tutton was unable to reach underneath them. After Mary pinched her sister to move over, she moved out of Tutton's reach and the touching stopped.

The allegations surfaced after the girls' father, Chris, became suspicious that something might have happened during their stay at Tutton's home. He became concerned because the girls were acting quiet and withdrawn upon returning home and did not kiss him goodnight as they always had done. Chris testified that the next day, he asked the girls if "anybody bothered [them] or did anything they shouldn't have?" The girls both indicated that Tutton had "put his hands" on them. Thereafter, the authorities were notified.

Because of the alleged penetration, Jane saw a pediatrician trained in sexual abuse cases. The doctor performed a genital examination with the aid of a colposcope. The exam revealed

354 S.C. 324

no evidence of trauma. However, the doctor testified that while the results of the exam could not prove penetration had occurred, it was possible that digital penetration could have occurred without Jane's hymen showing any evidence of trauma

The issue in this case arose during Jane's testimony before the court. During its direct examination, the State sought to elicit testimony that Tutton had sexually assaulted Jane on another occasion several years prior to the events in question. Counsel for Tutton objected, arguing the testimony amounted to inadmissible character evidence. Outside the presence of the jury, the State proffered Jane's testimony as to the prior occurrence.

Jane testified that four or five years prior to the time of trial, Tutton sexually assaulted her. The assault allegedly occurred when she and Mary were staying with Tutton and Tammy while their parents were on vacation. Jane testified that Tutton forced her to lie on her back and take off her panties. She stated Tutton then performed oral sex on her and forced her to perform oral sex on him. She alleged that Tutton threatened to tell her parents she was misbehaving if she spoke of the incident. Jane never told anyone about this incident prior to the investigation into the current charges facing Tutton.

The trial court ruled this evidence was admissible under the common scheme or plan exception to Lyle. Specifically, the trial court found that Jane's testimony regarding the past misconduct was clear and convincing, and that the prior acts bore a close similarity to the crimes charged; thus the probative value of the evidence was not outweighed by its prejudicial effect. The testimony was thereafter presented to the jurors, who ultimately convicted Tutton.

II. LAW/ANALYSIS

Evidence of prior crimes or misconduct is inadmissible to prove the specific crime charged unless the evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the proof of the other; or

354 S.C. 325

(5) the identity of the person charged with the present crime. See Lyle, 125 S.C. at 416, 118 S.E. at 807; Rule 404(b), SCRE. To be admissible, a prior bad act must first be established by clear and convincing evidence. State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Weaverling, 337 S.C. 460, 468, 523 S.E.2d 787, 791 (Ct.App.1999) (stating if a prior bad act is not the subject of a conviction, proof thereof must be by clear and convincing evidence)

If the trial judge finds there is clear and convincing evidence that the defendant committed the uncharged acts, it must next be determined whether the prior acts fall within the common scheme or plan exception to Lyle. "A close degree of similarity or connection between the prior bad act and the crime for which the defendant is on trial is required to support admissibility under the common scheme or plan exception." State v. Cheeseboro, 346 S.C. 526, 546, 552 S.E.2d 300, 311 (2001). The connection must be more than just a general similarity. State v. Timmons, 327 S.C. 48, 52, 488 S.E.2d 323, 325 (1997). "A common scheme or plan involves more than the commission of two similar crimes; some connection between the two is necessary." Id. Where the evidence of the bad acts is so similar to the charged offense that the previous act enhances the probative value of the evidence so as to outweigh its prejudicial effect, it is admissible. Weaverling, 337 S.C. at 468, 523 S.E.2d at 791. However, even if the evidence is clear and convincing and falls within a Lyle exception, the trial judge must exclude it if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Id.

A. Clear and Convincing Evidence

When considering whether there is clear and convincing evidence of other bad acts, this court is bound by the trial judge's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001) (finding the appellate court committed error by basing its ruling on its own view of the witness's credibility). In this case, there is evidence in the record in the form of Jane's proffered testimony that the prior assault occurred. The determination of a witness's credibility must be left to the trial judge who saw and heard the witness and is therefore in a

354 S.C. 326

better position to evaluate his or her veracity. State v. Rosier, 312 S.C. 145, 149, 439 S.E.2d 307, 310 (Ct.App.1993). Accordingly, the determination as to whether Jane's testimony clearly and convincingly established that the prior assault occurred is a matter well within the trial court's discretion. We find no abuse of that discretion in light of Jane's proffered testimony. Wilson, 345 S.C. at 6, 545 S.E.2d at 829.

B. Common Scheme or Plan Exception

Having found that the record supports the trial judge's ruling that Tutton committed the prior bad act, we must next determine whether the evidence falls within the common scheme or plan exception to Lyle. Initially, we note that no South Carolina cases expressly state the standard of review for determining whether the evidence presented at trial is sufficient to establish the existence of a common scheme or plan. Ordinarily, questions concerning the admissibility of evidence are treated as questions of fact. Wilson, 345 S.C. at 6, 545 S.E.2d at 829. However, there are several cases in which the trial judge's admission of evidence under the common scheme or plan exception was reversed after the appellate courts in South Carolina found that the similarities between the charged and uncharged acts were insufficient to establish the existence of such a plan or design. See State v. Timmons, 327 S.C. 48, 53, 488 S.E.2d 323, 326 (1997) ("Reviewing this list of similarities, we disagree with the trial judge. The only point of similarity with any merit is the alleged similar clothing worn by the robbers."); State v. Berry, 332 S.C. 214, 503 S.E.2d 770 (Ct.App.1998) (cert. denied, June 24, 1999) (reversing the trial judge's admission of the evidence under the common scheme or plan exception after finding insufficient similarities between the separate attacks); State v. Davenport, 321 S.C. 134, 467 S.E.2d 258 (Ct.App.1996) ("We cannot clearly perceive the connection between the [separate] acts based on these criteria, and we therefore conclude [the witness's] testimony should have been excluded."). Certainly, the factual determination as to whether the prior assault occurred in this case is left to the...