State v. Weaverling

• Decision Date: 25 October 1999
• Docket Number: No. 3062.,3062.
• Citation: 337 S.C. 460,523 S.E.2d 787
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Frank Edward WEAVERLING, Appellant.

337 S.C. 460

523 S.E.2d 787

The STATE, Respondent, v. Frank Edward WEAVERLING, Appellant.

No. 3062.

Court of Appeals of South Carolina.

Heard October 7, 1999.

Decided October 25, 1999.

Rehearing Denied December 25, 1999.

Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney

General Salley W. Elliott and Assistant Attorney General G. Robert DeLoach, III, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.

ANDERSON, Judge:

Frank Edward Weaverling appeals from his convictions for three counts of second degree criminal sexual conduct (CSC) with a minor and one count of disseminating harmful material to a minor. We affirm.

FACTS/PROCEDURAL BACKGROUND

The case against Weaverling arose out of allegations he sexually abused his minor nephew, John Doe. The indictments averring the three charges of criminal sexual conduct are time dated as follows: (1) Indictment # 97-GS-46-454— "on or about December 25, 1994"; (2) Indictment # 97-G46-935— "on or about the end of June or the beginning of July, 1996"; and (3) Indictment # 97-GS-46-455—"on or about July 27, 1996."

Doe testified he was seven or eight years old when Weaverling began the abuse. For approximately five or six years, Weaverling performed fellatio on Doe almost every time he saw him. These incidents occurred inside Weaverling's home, both in the living room and bedroom, and in the woods and a barn near Doe's home.

Doe estimated Weaverling performed oral sex on him on more than one hundred occasions. While performing the sex acts, Weaverling often had Doe look at a pornographic magazine or watch a pornographic movie. Weaverling showed Doe nude photographs of Weaverling's wife. After completing the sexual acts, Weaverling would tell Doe, "Oh, you were great" or "Oh, you were good." He told Doe not to tell other people about their "secret."

On December 25, 1994, Doe took his Christmas dinner up to his tree house to eat. About five minutes later, Weaverling came up to the tree house. Doe said Weaverling then "unfastened my pants and started sucking on my peter." When Doe's mother called his name, Doe pulled up his pants and ran to the house. Approximately one to two weeks passed before Weaverling touched Doe again. In January of 1995, Weaverling touched Doe three or four times while the two were at Weaverling's home. During these incidents, Weaverling showed Doe a "dirty" magazine.

For the next year and a half, Weaverling did not touch Doe sexually. In late June or early July of 1996, the abuse resumed. A few days before Doe left to visit his father for the 4th of July, Weaverling asked Doe to babysit his two sons. That night, Doe slept in the living room of Weaverling's house. Doe awoke to find a naked Weaverling had pulled down Doe's shorts and was performing oral sex on Doe. When Doe asked Weaverling to stop, he complied, put on his robe, and walked away. Weaverling's wife and children were asleep during the incident.

In late July of 1996, Doe agreed to babysit Weaverling's children. Doe fell asleep on the couch in Weaverling's living room and woke to find Weaverling performing oral sex on him. This time when Doe asked Weaverling to stop, Weaverling stopped, but "acted like he was mad and went back to his room."

Doe was scared to tell anyone what his uncle was doing to him. He did not tell anyone about the abuse until a couple of weeks after the late July incident of abuse by Weaverling. At that time, Doe got in trouble for performing oral sex on his three year old male cousin.¹ When Doe's mother asked him why he molested his cousin, Doe said "because it had been done to him ... he thought it was all right."

Doe remembered Weaverling kept the pornographic magazine under his bed, the movie in his dresser, and the photographs of his wife in her makeup drawer. With this information, the police obtained and executed a search warrant on Weaverling's home. Officers discovered the pornographic magazine and an x-rated movie, but did not find nude photographs of Weaverling's wife, although she helped in the search for them. Doe identified a pornographic magazine police seized from Weaverling's home as the magazine Weaverling showed him. Weaverling denied the charges against him. He maintained he caught Doe performing oral sex on one of his sons in July of 1996, but agreed to not tell anyone if Doe promised not to do it again. Weaverling told no one about this incident until the police questioned him regarding Doe's allegations.

Weaverling was found guilty of all charges. He was sentenced to fifteen years for each of the CSC convictions, and five years for the dissemination of harmful material to a minor conviction, with all sentences running concurrently.

ISSUES

I. Did the trial court err in admitting evidence of uncharged sexual misconduct allegedly committed by Weaverling on Doe?

II. Did the trial court err in excluding the testimony of a defense witness regarding Weaverling's character for truthfulness?

III. Did the trial court err in allowing expert witness testimony that it was "not uncommon" for past victims of sexual abuse to become offenders themselves?

LAW/ANALYSIS

I. Evidence of Other Bad Acts

Weaverling argues the trial court erred in admitting evidence of uncharged sexual misconduct allegedly committed by Weaverling on Doe. He maintains the evidence does not fall within any of the Lyle² exceptions to the general ban on other bad acts evidence. We disagree.

Generally, South Carolina law precludes evidence of a defendant's prior crimes or other bad acts to prove the defendant's guilt for the crime charged. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). See also Rule 404(b), SCRE (evidence of other crimes, wrongs, or acts is not admissible to prove character of person in order to show action in conformity therewith). Such evidence is admissible, however, when it tends to establish motive, intent, the absence of mistake or accident, 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 others, or the identity of the perpetrator. State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997); Lyle, supra; Rule 404(b), SCRE. If not the subject of a conviction, proof of prior bad acts must be clear and convincing. State v. Pierce, 326 S.C. 176, 485 S.E.2d 913 (1997).

In the case of the common scheme or plan exception under Lyle, a close degree of similarity or connection between the prior bad act and the crime for which the defendant is on trial is necessary. State v. Cutro, 332 S.C. 100, 504 S.E.2d 324 (1998). The trial judge must balance the probative value of the evidence of other crimes or bad acts against its prejudicial effect. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993). Where the evidence is of such a close similarity to the charged offense that the previous act enhances the probative value of the evidence so as to overrule the prejudicial effect, it is admissible. State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995). Even if the evidence is clear and convincing and falls within a Lyle exception, the judge must exclude it if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999); State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996); Rule 403, SCRE. The decision to admit contested evidence rests within the sound discretion of the trial judge. State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995).

Initially, we reject the State's argument that Weaverling failed to preserve this issue. The State argues Weaverling failed to state grounds for the exclusion of the evidence and failed to argue the evidence did not fit within an exception to the general rule excluding evidence of other bad acts. Weaverling requested the court exclude any evidence of prior bad acts. Weaverling did not argue its inadmissibility under any exception to Lyle. The court entertained a proffer and argument on the challenged testimony's admissibility. Reference to the general rule was sufficient. See Rule 103(a)(1), SCRE (requiring only "a timely objection or motion to strike ... stating the specific ground of objection, if the specific ground [is] not apparent from the context."). We find Doe's testimony regarding the pattern of sexual abuse he suffered by Weaverling to be quintessential common scheme or plan evidence. Evidence of a defendant's prior and subsequent illicit sexual activities when closely similar to the charged offense is admissible. In State v. Richey, 88 S.C. 239, 70 S.E. 729 (1911), our Supreme Court held admissible evidence that a man charged with carnal knowledge of a girl under fourteen continued his illicit relationship with the child past her fourteenth birthday. The court ruled "`acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence as showing the relation and mutual disposition of the parties.'" Id. at 242, 70 S.E. at 730.

The common scheme or plan exception "is generally applied in cases involving sexual crimes, where evidence of acts prior and subsequent to the act charged in the indictment is held admissible as tending to show continued illicit intercourse between the same parties." State v. Whitener, 228 S.C. 244, 265, 89 S.E.2d 701, 711 (1955). Such evidence is admissible when the "`close similarity of the charged offense and* the previous act[s] enhances the probative value of the evidence so as to overrule the prejudicial effect.'" State v. McClellan, 283 S.C. 389, 392, 323 S.E.2d 772, 774 (1984). In McClellan, the Court addressed the admissibility of testimonial evidence of appellant's pattern of sexual attacks against each of his three daughters in his trial for criminal...