State v. Wallace

• Decision Date: 28 March 2005
• Docket Number: No. 3971.,3971.
• Citation: 364 S.C. 130,611 S.E.2d 332
• Parties: The STATE, Respondent, v. Karl WALLACE, Appellant.
• Court: South Carolina Supreme Court

611 S.E.2d 332

364 S.C. 130

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

No. 3971.

Court of Appeals of South Carolina.

Heard November 17, 2004.

Decided March 28, 2005.

Rehearing Denied April 21, 2005.

C. Rauch Wise, of Greenwood, and Everett P. Godfrey, Jr., of Greenville, for Appellant.

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

HEARN, C.J.

Karl Wallace was convicted of second-degree criminal sexual conduct (CSC) with a minor. He argues the trial court erred by admitting the testimony of the victim's sister regarding an alleged prior act of criminal sexual conduct with a minor 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. We reverse and remand for a new trial.

FACTS

Wallace was accused of criminal sexual conduct with his stepdaughter. At the time of trial, Wallace had been married to the victim's mother for approximately ten years. At trial, the victim testified she was about twelve years old when Wallace first told her to come to his room and go into the bathroom to take off all of her clothes. She said he would look at her and then touch her on her chest. After he touched her, he would tell her "don't tell anyone `cause they're not going to believe you anyway." When asked how many times this happened, the victim answered "once, like every other month or so one time." This pattern continued through the seventh and eighth grades.

Although the incidents allegedly continued over a number of years, this charge involved an act on May 8, 2001, when the victim was in the ninth grade. According to the victim, Wallace called the victim into his bedroom to talk after her mother had been taken into police custody on an unrelated matter. After asking the victim why she was sitting with her legs closed and whether she thought he was going to do something to her, Wallace pushed her back on the bed. The victim stated that Wallace "sat on top of me and like between my legs and we were just sitting there." Wallace asked her, "do you want me to be myself or be like a dog," to which she responded, "to be hisself [sic]." Wallace then removed her pajama bottoms and her underwear, forced open her legs, and started "to push his hands up [her] privates." As he continued, the victim started to scream. Wallace put a pillow over her face and told her to be quiet or he would hit her. She testified that when Wallace heard her little brother coming down the hall, he told her to go into the bathroom and get dressed. After her brother left the room, Wallace forced her back on the bed, got on top of her, and took her pants off again. After sitting and looking at her, he told her to go get her things and leave.

A few days later, the victim's older sister came to the school to see the victim and to find out what was going on at home. The victim told her sister that Wallace had been "messing with" her. As a result of that conversation, someone from the Department of Social Services visited the victim at school. The victim subsequently filed a police report.

At trial, the State attempted to present evidence of an alleged sexual assault against the sister as proof of Wallace's guilt. Prior to the start of trial, the State moved to allow the testimony of the sister, proffering the following argument:

It's the State's position that her testimony would be that she was also sexually abused by this defendant that [sic] the abuse started at approximately the same age with both of the victims, that being the seventh grade, roughly, for both of them, between twelve and thirteen years old; that they were both the defendant's stepdaughters; that they were both living in the home with the defendant, as opposed to visiting on weekends and the abuse happening then; that the method of the abuse essentially started the same way, it started with fondling of the breasts, is [sic] where it began; and that it would occur in the home,.... it occurred in the bedroom; and it occurred when the mother was not home,....

The State concluded by stating that the sister suffered more extensive abuse. Specifically, she was subjected to sexual intercourse and oral sex. The State asserted it "would be willing to offer to limit testimony, if you see fit, as to just the particulars that were similar." When questioned by the trial court, the State said the sister specifically did not want to bring charges against Wallace. Defense counsel argued the testimony of the sister, as to the alleged prior bad act, did not fit any exception to Lyle and would be grossly prejudicial to Wallace.

The trial court ordered an in camera examination of the sister. She testified that when she was in the sixth or seventh grade Wallace would come into her room to rub her back because he was trying to get her to lose weight. He then would touch her breasts, kiss her, and perform oral sex. When she was in the eighth grade, the family moved from Louisiana to South Carolina. The sister testified Wallace would call her into his bedroom and perform oral sex, digital penetration, and sexual intercourse. She testified she told her mother about the incidents on two separate occasions. The sister testified the sexual assaults continued until she moved out of the family home during her second semester in college.

After hearing the testimony and arguments, the trial court found the testimony to be clear and convincing and ruled this evidence was admissible under the common scheme or plan exception to Lyle. Concluding the probative value outweighed the prejudicial effect, the trial court allowed the evidence to be presented to the jury but limited the testimony of the sister "only to the extent and only to the acts which occurred to the victim in this prosecution, and not to go beyond that, which will limit the prejudicial effect of this testimony coming in." A jury found Wallace guilty of second-degree CSC with a minor, and he was sentenced to eight years confinement.

STANDARD OF REVIEW

On review of criminal cases, an appellate court is limited to determining whether the trial judge abused his discretion. See State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). An abuse of discretion occurs when the conclusions of the circuit court either lack evidentiary support or are controlled by an error of law. State v. Bryant, 356 S.C. 485, 489-90, 589 S.E.2d 775, 777 (Ct.App.2003). "Concerning the admission of evidence, the trial judge's determination will be sustained absent error and resulting prejudice." State v. Robinson, 360 S.C. 187, 192, 600 S.E.2d 100, 102 (Ct.App.2004) (citation omitted).

LAW/ANALYSIS

Wallace argues the trial court improperly admitted the testimony of the victim's sister as to alleged criminal sexual assaults under the common scheme or plan exception of Rule 404(b), SCRE and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). We agree.

Evidence of prior bad acts 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 proof of the other; or (5) identity of the person charged with the present crime. Lyle, 125 S.C. at 416, 118 S.E. at 807; Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity there-with.").

A prior bad act must first be established by clear and convincing evidence to be admissible. State v. Tutton, 354 S.C. 319, 325, 580 S.E.2d 186, 189 (Ct.App.2003). This court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). When considering whether there is clear and convincing evidence, this court is bound by the trial court's findings unless they are clearly erroneous. Tutton, 354 S.C. at 325, 580 S.E.2d at 189; 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 must be by clear and convincing evidence).

Here, Wallace does not argue the quantum of proof did not rise to the clear and convincing level. Instead, he argues the trial judge misapprehended the nature of the common scheme or plan exception as articulated in Lyle. Wallace urges us to review the underlying facts of Lyle in order to fully understand the common scheme or plan exception.

In Lyle, the defendant was charged with issuing a forged check in Aiken, South Carolina on January 12, 1922. 125 S.C. at 411, 118 S.E. at 805. The State introduced evidence that the defendant had committed similar crimes in Aiken on that same date, as well as similar crimes in Griffin, Georgia on January 3, 1922; Athens, Georgia on December 30, 1921; and LaGrange, Georgia on November 23, 1921. Id. at 413-14, 118 S.E. at 806. The allegation was the same in all the crimes: the defendant entered the bank, opened an account with a forged check using a false name, and received cash back from his deposit. The South Carolina Supreme Court held that the evidence regarding the similar crime committed in Aiken on the same date as the crime chargedwas admissible to establish identity because the evidence helped to refute the alibi defense of the defendant. Id. at 418, 118 S.E. at 808. As to the similar crimes committed on other dates in other locations, however, the Supreme Court found the evidence inadmissible. The court stated:

Whether such crime was committed as part of a common plan or system was wholly immaterial, unless...