State v. Wallace

• Decision Date: 17 August 2009
• Docket Number: No. 26703.,26703.
• Citation: 384 S.C. 428,683 S.E.2d 275
• Parties: The STATE, Petitioner, v. Karl WALLACE, Respondent.
• Court: South Carolina Supreme Court

683 S.E.2d 275

384 S.C. 428

The STATE, Petitioner, v. Karl WALLACE, Respondent.

No. 26703.

Supreme Court of South Carolina.

Heard March 18, 2008.

Decided August 17, 2009.

Rehearing Denied October 15, 2009.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, of Columbia; and Solicitor Robert M. Ariail, of Greenville, for petitioner.

C. Rauch Wise, of Greenwood; and Everett P. Godfrey, Jr., of Godfrey Law Firm, of Greenville, for respondent.

Acting Justice BURNETT.

Respondent Karl Wallace was convicted of criminal sexual conduct with a minor, second degree, for the sexual abuse of his stepdaughter (Victim). On appeal, the Court of Appeals reversed, holding the admission of evidence that respondent abused Victim's older sister (Sister) was improperly admitted.¹ We reverse.

FACTS

Victim testified the abuse began when she was twelve years old. When she was in seventh grade, respondent would periodically call her into his bedroom and tell her to go into the adjoining bathroom and take off her clothes. Victim's mother and Sister worked nights and were not at home when this happened. Respondent would touch Victim's breasts and would warn her, "Don't tell anyone `cause they're not going to believe you anyway." This conduct continued during the time Victim was in the seventh and eighth grade.

One night when Victim was in ninth grade, respondent told her to sit on his bed. Victim's mother was not home and Sister had moved out of the house. Respondent forced Victim back on the bed, pulled off her pants and underwear, forced open her legs and "pushed his hands up [her] private parts." When Victim screamed, respondent put a pillow over her face and threatened to hit her if she did not stop. Victim's younger brother came to the door and respondent told Victim to go into the bathroom and dress. After the brother left, respondent forced Victim back onto the bed and took off her pants again but only looked at her. He then let her get back up and get dressed, and she left the room. Victim telephoned Sister who came to the house but respondent would not let Sister come inside.

The next day, Sister visited Victim at school to find out why Victim had called. Sister asked if respondent had "messed with her" and Victim told Sister what respondent had done. Sister reported the abuse and a police report was filed.

At trial, after an in camera hearing, the trial judge allowed Sister to testify that she was also sexually abused by respondent from the time she was in seventh grade until she moved out of the house after graduating high school. Sister testified that respondent would rub her back and sometimes put his hands up under her shirt and touch her breasts. After a while, he started touching her "private area" and performing oral sex on her. This would occur sporadically in respondent's bedroom or in Sister's bedroom when her mother was not at home. Sister testified respondent "would always tell me, you know, at the end, you know, `You better not tell anyone. ... "They're not going to believe [you] so don't tell anyone."'" The trial judge found this evidence admissible under Rule 404(b), SCRE, as evidence of common scheme or plan.

ISSUE

Did the Court of Appeals err in finding Sister's testimony inadmissible as evidence of common scheme or plan?

DISCUSSION

Rule 404(b)

Evidence of other bad acts is not admissible to prove the defendant's guilt except to show motive, identity, existence of a common scheme or plan, absence of mistake or accident, or intent. Rule 404(b), SCRE; see also State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).² The Court of Appeals found it was error to admit Sister's testimony as evidence of common scheme or plan because "the trial court did not address any connection between the two crimes." Rather than viewing the similarity of the two events as establishing the required connection, the Court of Appeals found some further link was necessary.³

The process of analyzing bad act evidence begins with Rule 401, SCRE.⁴ Pursuant to Rule 401, the trial court must determine whether the evidence is relevant. Upon determining the evidence is relevant, the trial court must then determine whether the bad act evidence fits within an exception of Rule 404(b) as interpreted by our jurisprudence.

Rule 404(b) allows the admission of evidence of a common scheme or plan. Such evidence is relevant because proof of one is strong proof of the other. When determining whether evidence is admissible as common scheme or plan, the trial court must analyze the similarities and dissimilarities between the crime charged and the bad act evidence to determine whether there is a close degree of similarity. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993). When the similarities outweigh the dissimilarities, the bad act evidence is admissible under Rule 404(b).

Although not a complete list, in this type of case, the trial court should consider the following factors when determining whether there is a close degree of similarity between the bad act and the crime charged: (1) the age of the victims when the abuse occurred; (2) the relationship between the victims and the perpetrator; (3) the location where the abuse occurred; (4) the use of coercion or threats; and (5) the manner of the occurrence, for example, the type of sexual battery. See State v. Hallman, 298 S.C. 172, 379 S.E.2d 115 (1989) (evidence admissible as common scheme or plan where all victims were foster children of similar age and the types of sexual batteries were similar); State v. McClellan, 283 S.C. 389, 323 S.E.2d 772 (1984) (evidence admissible as common scheme or plan where both victims were defendant's daughters, were the same age at time of the initial attack, and defendant gave same explanation for his actions). We emphasize that these factors are set out merely for guidance and that other factors may be relevant in weighing the similarities and the dissimilarities between the crime charged and the bad act evidence.

A close degree of similarity establishes the required connection between the two acts and no further "connection" must be shown for admissibility.⁵ Here, the similarities between the acts include petitioner's relationship to the victims (his stepdaughters), abuse beginning at about the same age, abuse occurring in the family home when the mother was absent, and an admonishment not to tell because no one would believe it. In sum, there are similarities in the class of victim, timing, place, and warning that outweigh any dissimilarity. We find the Court of Appeals erred in ruling that Sister's testimony was improperly admitted under Rule 404(b).

Redaction

At the in camera hearing, Sister testified that digital penetration and oral sex eventually progressed to intercourse. The trial court ruled that in order to avoid unfair prejudice to respondent, any testimony regarding intercourse would not be allowed when Sister testified before the jury. The Court of Appeals found this was error because it made the two acts seem more similar than they actually were. We disagree.

We note that the trial court redacted only the last step in a progressive course of abuse. Sister's abuse began with touching of the breasts, digital penetration and oral sex, and then progressed to the point of intercourse. The fact that Victim's abuse was interrupted before it could culminate in intercourse does not diminish the similarity between the progression the abuse took in each case. Moreover, the trial court may properly redact dissimilar particulars of sexual conduct to avoid unfair prejudice to the defendant.

Rule 403

Once bad act evidence is found admissible under Rule 404(b), the trial court must then conduct the prejudice analysis required by Rule 403, SCRE.⁶ The probative value of evidence falling within one of the Rule 404(b) exceptions must substantially outweigh the danger of unfair prejudice to the defendant. State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007). Here, the probative value of Sister's testimony as redacted substantially outweighs the danger of unfair prejudice. We conclude the trial court properly admitted the evidence. The decision of the Court of Appeals is

REVERSED.

TOAL, C.J., and WALLER, J., concur.

BEATTY, J., concurring in result only....