State v. Wallace
State v. Wallace
Opinion of the Court
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.
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 respon
ISSUE
Did the Court of Appeals err in finding Sister’s testimony inadmissible as evidence of common scheme or plan?
DISCUSSION
Ride 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).
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
A close degree of similarity establishes the required connection between the two acts and no further “connection” must be shown for admissibility.
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.
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.
REVERSED.
. State v. Wallace, 364 S.C. 130, 611 S.E.2d 332 (Ct.App. 2005).
. Bad act evidence that is not subject to a conviction must be shown by clear and convincing evidence and is reviewed under an "any evidence” standard on appeal. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001). Here, there is no challenge to the proof of the bad act.
. In support, the Court of Appeals points to Lyle, supra, in which this Court allowed evidence of a "similar crime” that occurred on the same date in the same town (Aiken), but disallowed evidence of "similar crimes” that occurred on other dates in other locations (Georgia). The Lyle court observed that there was no connection to show the Georgia crimes were "practically ‘a continuous transaction,' " 125 S.C. at 427,
A careful reading of Lyle does not support the Court of Appeals' conclusion. The crime charged in Lyle was uttering a forged check. The Lyle court allowed the Aiken bad act evidence not only because it had occurred on the same date, but because it had a close degree of similarity to the particulars of the crime charged — the forged checks were issued using the same name and the same address. 118 S.E. at 807-808. The evidence that was not allowed was evidence of simply uttering other forged checks with no particulars in common with the events giving rise to the charge for which the defendant was tried. In other words, the commission of acts that fall into the same criminal definition is not sufficient. The acts must bear some factual similarity to constitute a connection between them.
. Rule 401 provides that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
. The Court of Appeals relied on State v. Tutton, 354 S.C. 319, 580 S.E.2d 186 (Ct.App. 2003), which appears to require a connection beyond a degree of similarity in the details of the crime charged and the bad act evidence. We find this interpretation to be an overly restrictive view of our case law. Requiring a "connection" between the crime charged and the bad act evidence is simply a requirement that the two be factually similar and does not add an additional layer of analysis.
. Rule 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Dissenting Opinion
I respectfully dissent. In my opinion, our cases holding that evidence of other acts of sexual misconduct is admissible in a trial for criminal sexual conduct with a minor as a “common scheme or plan” under Rule 404(b), SCRE, have, in effect, created an exception to the rule’s exclusion of propensity evidence. Compare, e.g., Vogel v. State, 315 Md. 458, 554
. I note that The Advisory Committees on Criminal and Civil Rtdes, except for the Department of Justice representative, the Study Committee, except for the DOJ representative, and the Judicial Conference unanimously urged Congress to reconsider these Rules.
Reference
- Full Case Name
- The STATE, Petitioner, v. Karl WALLACE, Respondent
- Cited By
- 58 cases
- Status
- Published