State v. Watson, 3617.

Citation579 S.E.2d 148,353 S.C. 620
Decision Date17 March 2003
Docket NumberNo. 3617.,3617.
CourtCourt of Appeals of South Carolina
PartiesThe STATE, Respondent, v. Bobby WATSON, Appellant.

Assistant Appellate Defender Eleanor Duffy Cleary, of the South Carolina Office of Appellate Defense, 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, Jr., all of Columbia; and Solicitor Jay E. Hodge, Jr., of Cheraw; for Respondent.

GOOLSBY, J.:

Bobby Watson appeals his convictions for first-degree criminal sexual conduct (CSC) with a minor and committing a lewd act upon a child under the age of sixteen years, arguing the trial court erred in not allowing him to present surrebuttal testimony in response to the State's reply evidence. We affirm.

FACTS

This action arises out of allegations that Watson abused his girlfriend's daughter (the victim).1 In July 1999, the victim, then nine years old, told her grandmother that Watson had sexually abused her for two years. At trial, the victim testified that Watson had made her "suck his private parts" and had "grabbed [her] hand and put it on his front private part and rubbed up and down." The victim also testified Watson made her sit on his penis and that he had touched her "inside." The victim stated the incidents occurred when she stayed with her mother, her brother, and Watson in a twobedroom trailer and also at her grandmother's house.

Watson denied the allegations and maintained they resulted from the fact that his girlfriend was mad at him for cheating on her, as was her family; he contended the victim "very seldom was in our house." Watson testified that he and his girlfriend lived in a trailer with their son, and that the victim did not live with them during the time the acts allegedly occurred, when the victim was seven to nine. Rather, the victim stayed with her grandmother "practically all the time" and "was a visitor in [his] home [the trailer]." Watson asserted that he was never left alone with the victim. He also presented a defense theory that the allegations could have been the product of suggested memories based on the victim having seen pornographic movies and a sex channel on television that the victim's grandmother allegedly subscribed to.2 He alternatively asserted that if there was any sexual abuse, it was committed by someone else.

In reply, the State presented the testimony of a neighbor, who stated that she often saw Watson, his girlfriend, their son, and the victim at the trailer from 1997 to 1999, although the victim would sometimes stay at her grandparents' house. The neighbor also testified that she went to the trailer to borrow something one day and Watson was home with just his son and the victim. During cross-examination, the witness admitted having a criminal record involving fraudulent checks and shoplifting.

A jury convicted Watson of first-degree CSC with a minor and committing a lewd act upon a child under the age of sixteen years. The trial court sentenced him to thirty years in prison for the CSC charge and a concurrent fifteen years for the charge of committing a lewd act.

LAW/ANALYSIS

Watson contends he is entitled to a new trial based on the trial court's failure to allow him to present surrebuttal testimony.

After the State presented reply testimony from Watson's neighbor, the following exchange occurred:

MRS. RIVERS [Defense counsel]: Your Honor, I would ask to put the defendant on the stand for rebuttal.
MS. MAYES [State]: I know of absolutely no provision under the law of the Rules of Evidence that allows that,
Your Honor.
THE COURT: I don't either.
Any matters of law at this time?

The parties then proceeded to discuss jury charges. Thereafter, Watson himself addressed the court and stated, "Your Honor, I want to ask you can I comment on what this testimony was because this lady right here that just stated this testimony was evicted. Katrina, the mother of the victim, lived with this woman." Watson told the court that his father would also be willing to testify. The court stated: "I'm sorry. I am not allowed under procedure to let that happen. That was reply from the State after you put up your defense, Mr. Watson."

On appeal, Watson's appellate counsel argues the trial court erred in failing to exercise its discretion or, alternatively, abused its discretion, when it did not allow the defense to present surrebuttal testimony to address allegedly new matter brought out in the State's reply evidence. Counsel contends that, contrary to the trial court's ruling, surrebuttal testimony is allowed under South Carolina law, citing Camlin v. Bi-Lo, Inc.3 and State v. Summer4 as supporting authority.

Initially, we find it questionable whether this issue was preserved for consideration on direct appeal as this argument appears to be raised for the first time on appeal. When the trial court denied the request to present the additional testimony, it did so based on its apparent belief that additional testimony was not allowed after the State's reply. No argument was raised by the defense that such surrebuttal testimony is, in fact, allowed in the court's discretion.5

On the merits, contrary to the trial court's statement that it was "not allowed under procedure to let that happen," some authorities note that there are occasions when the trial court may allow surrebuttal testimony in its discretion:

Surrebuttal is appropriate when, in the judge's discretion, new matter or new facts are injected for the first time in rebuttal[,] especially where the evidence offered in surrebuttal is for the first time made competent by the evidence introduced by plaintiff in rebuttal.
On the other hand, if the evidence sought to be introduced in surrebuttal could
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3 cases
  • Watson v. State, 26197.
    • United States
    • United States State Supreme Court of South Carolina
    • August 14, 2006
    ...and fifteen years for lewd act upon a child. The court of appeals affirmed Watson's convictions and sentences. State v. Watson, 353 S.C. 620, 579 S.E.2d 148 (Ct.App.2003). Watson filed an application for PCR, alleging that counsel was ineffective in failing to object to improper hearsay tes......
  • State v. Davis, Opinion No. 2009-UP-167 (S.C. App. 4/27/2009)
    • United States
    • Court of Appeals of South Carolina
    • April 27, 2009
    ...the trial court erred in permitting the State to introduce evidence in a wholly new area on rebuttal: State v. Watson, 353 S.C. 620, 624, 579 S.E.2d 148, 150 (Ct. App. 2003) (holding after a trial court admits evidence of new matter in the State's rebuttal, the accused is entitled to presen......
  • State v. Davis
    • United States
    • Court of Appeals of South Carolina
    • April 27, 2009
    ...... to whether the trial court erred in permitting the State to. introduce evidence in a wholly new area on rebuttal:. State v. Watson, 353 S.C. 620, 624, 579 S.E.2d 148,. 150 (Ct. App. 2003) (holding after a trial court admits. evidence of new matter in the State's ......

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