S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
Iver Norman Johnson, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Lexington County
Marc H. Westbrook, Judge
Opinion No. 24897
Heard November 5, 1998 - Filed February 8, 1999
AFFIRMED IN PART; REVERSED IN PART.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and
Senior Assistant Attorney General Norman Mark
Rapoport, all of Columbia; and Solicitor Donald V.
Myers, of Lexington, for petitioner.
Senior Assistant Appellate Defender Wanda H.
Halle, of South Carolina Office of Appellate
Defense, of Columbia, for respondent.
BURNETT, A.J.: Respondent was convicted of three counts of
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STATE v. JOHNSON
first degree criminal sexual conduct (CSC) with a minor and five counts of
committing a lewd act on a child under the age of fourteen. He was
sentenced to imprisonment for thirty years on each CSC and fifteen years
on each lewd act, the sentences to run consecutively. The Court of
Appeals reversed respondent's convictions and sentences. State v.
Johnson, Op. No. 97-UP-653 (S.C. Ct. App. filed Dec. 11, 1997). This
Court granted the State's petition for certiorari to review the Court of
Appeals' opinion. We affirm in part and reverse in part.
FACTS
Respondent engaged in inappropriate sexual activity with his
six year old daughter, Betty, and her friends, April, Nina, Megan and
Maryann, ages 8, 9, 4, and 7 respectively. Respondent babysat the victims
while their parents worked. The State alleged respondent took advantage
of his position of control and the victims' vulnerability, and sexually
abused the girls to satisfy his own sexual desires.
According to the victims, respondent rubbed the genital areas
of their bodies, both on top of and underneath their clothing, touched their
buttocks, and inserted his finger into the vagina of at least one child.
Most of this touching occurred in the living room when the girls were
sitting on respondent's lap while watching television. However, according
to both Betty and April, respondent also touched them in Betty's bedroom.
These acts occurred from April 1994 to August 1994.
The girls saw respondent as he touched the others and
discussed the abuse among themselves. Eventually, they told Betty's
mother, Brenda Johnson, about respondent's conduct. Mrs. Johnson
informed the other parents of the accusations and reported the allegations
to the police.
Based on the victims' complaints, respondent was arrested and
the police searched his apartment. According to the arresting officer,
respondent claimed that "[he] could not have done this" because he was
impotent. The officer also stated respondent admitted that his hand could
have "slipped" one time when one of the girls was sitting on his lap
watching television. Respondent denied abusing the girls,
At the trial, respondent's stepdaughter and stepniece testified,
when they were approximately the age of the victims, respondent would
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STATE v. JOHNSON
touch their genital area when in the living room and eventually
respondent began to digitally penetrate their vaginas when in the
bedroom.
ISSUES
I. Did the Court of Appeals err in finding the trial judge
should have granted respondent a directed verdict on two of
the CSC charges?
II. Did the Court of Appeals err in finding the trial judge
should have allowed respondent to impeach a witness with a
prior shoplifting conviction under Rule 609(a)(2), SCRE?
III. Did the Court of Appeals err in finding the trial judge
should have granted a mistrial when a State's witness
mentioned an offer of a polygraph examination was made to
respondent?
IV. Did the Court of Appeals err in finding the admission of
the search warrant, affidavit, and return was reversible error?
V. Did the Court of Appeals err in finding the cumulative
effect of several errors warranted reversal of respondent's
convictions?
DISCUSSION
I.
The State contends the Court of Appeals erred in finding the
trial judge should have granted respondent a directed verdict on the two
CSC charges concerning Betty and Nina because there was no evidence of
a sexual battery.
In ruling on a directed verdict, the trial judge is concerned
with the existence of evidence, not its weight. State v. Williams, 303 S.C.
274, 400 S.E.2d 131 (1991). Viewing the evidence in the light most
favorable to the State, a jury question is created if there is any direct or
substantial circumstantial evidence which reasonably tends to prove the
guilt of the accused or from which guilt may be fairly and logically
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STATE v. JOHNSON
deduced. Id.
To support a conviction for CSC, there must be evidence of a
sexual battery. S.C. Code Ann. 16-3-655(l) (1985). A sexual battery is
defined as an "intrusion, however slight, . . . into the genital or anal
openings of another person's body." S.C. Code Ann. 16-3-651(h) (1985).
A conviction for a sexual battery may be sustained on the uncorroborated
testimony of the victim. S.C. Code Ann. 16-3-657 (1985). In State v.
Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986), the six year old.victim
testified the defendant touched her with his penis, but could not remember
whether he had put it inside her body. However, she indicated it had
hurt. This Court found this was evidence of some intrusion and was
sufficient to render the issue one for the jury. Id.
Other jurisdictions interpreting similar statutes which require
penetration" find the slightest penetration is sufficient. Full penetration
is not necessary. 65 Am.Jur.2d Rape 3 (1972); Charles E. Torcia, 3
Wharton's Criminal Law 278 (1995). Further, it is not essential that
penetration be proven by testimony of the victim. Instead, it may be
established by circumstantial evidence. 65 Am.Jur.2d Rape 88 (1972);
Charles E. Torcia, 3 Wharton's Criminal Law 278 (1995).
In this case, Nina stated respondent fondled her while she sat
on his lap in a recliner chair in the living room. Nina testified respondent
touched her "lu-lu" which she described as the bottom part of her body
(where I don't think nobody likes to be touched." She stated respondent
touched her both over and under her clothes. When asked how this made
her feel, Nina responded: "It made me feel bad." A physical examination
of Nina did not reveal any evidence of a sexual battery.
Betty testified respondent would sleep in her bed with her and
that he woke her up and "touched [her] cooter" on the outside of her
underwear. She also testified he touched her "on [her] butt." She
indicated it hurt when this happened. Betty stated the abuse only
occurred in the bedroom and that respondent did not touch her in the
living room. A physical examination of Betty showed she had suffered an
injury inside her vagina which was consistent with sexual abuse. The
physician who performed the physical examination testified young children
are often unable to distinguish between "in" and "out."
April testified respondent rubbed her legs, buttocks and "lu-lu"
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STATE v. JOHNSON
over her clothes while she was sitting in the chair with respondent in the
living room watching television. Further, April testified once when she
spent the night with Betty, respondent got in bed with her and "he started
putting his fingers in [her]." April's physical examination did not show
any signs of sexual battery.
Respondent's stepdaughter and stepniece testified respondent
would rub them between their legs when they were in the living room.
Further, in the bedroom, respondent would digitally penetrate their
vaginas.
Although there was no direct evidence that respondent digitally
penetrated Betty, Betty's testimony that respondent touched her and it
hurt and the results of her physical examination were sufficient to create
a jury question as to whether there was any intrusion. See State v.
Mathis, supra (similar testimony was sufficient to create a jury question
on this issue).
However, in Nina's case the evidence was insufficient to create
a jury issue on penetration. Nina's testimony did not establish an
intrusion. Inappropriate touching can cause a child to "feel bad." Without
more, this statement is not sufficient evidence of an intrusion. There was
no circumstantial evidence presented to create a question for the jury on
the issue. Nina's physical examination revealed no signs of a sexual
battery. Further, because Nina claimed respondent fondled her in the
living room, April's testimony supported the finding that respondent only
touched Nina. According to April, respondent only touched her in the
living room and he only attempted penetration in the bedroom. Likewise,
respondent's stepdaughter's and stepniece's testimony supported this same
conclusion.
Therefore, the Court of Appeals was correct in directing a
verdict for respondent on the CSC conviction as to Nina, but it erred in
reversing respondent's CSC conviction as to Betty.1
1 Respondent claims the Court of Appeals erred in refusing to find
the trial judge should have directed a verdict on the lewd act committed
against Alegan. The Court of Appeals did 'not explicitly address this issue
in its opinion, and respondent did not raise this issue for rehearing.
Accordingly, this issue is not preserved for further review. Rule 226(d)(2),
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STATE v. JOHNSON
II.
The State contends the Court of Appeals erred in finding a
witness may. be impeached under Rule 609(a)(2), SCRE, with a prior
shoplifting conviction. The Court of Appeals concluded this error
prejudicially affected respondent's ability to question the truthfulness of
the witness' testimony. State v. Johnson, supra.
The trial judge refused to allow respondent to impeach Cynthia
Barfield, April's mother, with a shoplifting conviction. The judge found
federal precedent interpreting Rule 609(a)(2), FRE,2 which does not allow
impeachment by a prior shoplifting conviction, to be persuasive on this
issue.
Rule 609(a)(2), SCRE, provides:
For the purpose of attacking the credibility of a witness . . .
(2) evidence that any witness has been convicted of a crime
shall be admitted if it involved dishonesty or false statement,
regardless of punishment.
Under this rule, if the conviction involves dishonesty or false
statement, it is automatically admissible without having to balance its
probative value against its prejudicial effect. Rule 609(a)(2), SCRE, does
not define or list the crimes involving dishonesty or false statement.
SCACR; Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496
S.E.2d 17 (1998); Bonaparte V. Bonaparte, 317 S.C. 256, 452 S.E.2d 836
(1995) (where the Court of Appeals does not address a particular issue,
petitioner cannot argue the merits of the issue in a petition for a writ of
certiorari because the issue is not preserved for review; petitioner must
instead argue the Court of Appeals erred in failing to address the issue if,
of course, that was raised in a petition for rehearing). Further this issue
is without merit. Although Megan did not testify at trial, Maryann
testified she saw respondent touch Megan on her "bottom" while Megan
was sitting in his lap. This was sufficient evidence to create a jury
question on this issue.
2 Rule 609(a)(2.), SCRE, is almost identical to 609(a)(2), FRE.
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STATE v. JOHNSON
We agree with the Court of Appeals' holding that a witness
may be impeached under Rule 609(a)(2), SCRE, with a prior shoplifting
conviction. In State v. Shaw, 328 S.C. 454, 492 S.C. 402 (Ct. App. 1997),
the Court of Appeals decided this exact issue. We find that opinion
persuasive and adopt its reasoning. As stated by the Court of Appeals:
Common sense tells us that anyone who, in violation of the
shoplifting statute, takes and carries away a storekeeper's
merchandise with intent to deprive the owner of its possession
without paying for it, or alters or removes a label or price tag
in an attempt to buy a product at less than its value, or
transfers merchandise from its proper container for the purpose
of depriving a storekeeper of its value acts dishonestly.
Id. at 454, 492 S.E.2d at 404.
Because the trial judge erred in preventing respondent from
impeaching Cynthia Barfield with her shoplifting conviction, this Court
must determine if this error prejudiced respondent.
In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89
L.Ed.2d 674 (1986), the Supreme Court set forth certain factors an
appellate court should consider in determining whether the erroneous
exclusion of evidence of a witness' bias constitutes harmless error. These
include: the importance of the witness' testimony to the prosecution's
case, whether the testimony was cumulative, whether other evidence
corroborates or contradicts the witness' testimony, the extent of
cross-examination otherwise permitted, and the overall strength of the
State's case. While the harmless error ruling in Van Arsdall dealt
specifically with witness bias, this Court has held the Van Arsdall factors
apply with equal force in determining a harmless error violation relating
to any issue of witness credibility. See State v. Holmes, 320 S.C. 259, 464
S.E.2d 334 (1995), cert. denied, 517 U.S. 1248, 116 S.Ct. 2507, 135 L.Ed.2d
197 (1996); State v. Gadsden, 314 S.C. 229, 442 S.E.2d 594 (1994).
Cynthia Barfield is April's mother. Her testimony provided
some corroboration of the allegations made in this case. Ms. Barfield
testified that April began to masturbate and have nightmares following
the incident and that April suffered rashes during the time period the
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STATE v. JOHNSON
sexual abuse was occurring.3 However, April' s testimony sufficiently
established respondent sexually abused her and Ms. Barfield's testimony
was unnecessary to bolster the victims' allegations of abuse. The State
did not even refer to Ms. Barfield's testimony during its closing argument.
Obviously, the testimony was not critical to the State's case. Further,
defense counsel was allowed to extensively cross-examine and discredit Ms.
Barfield about her lifestyle. Accordingly, we find this error harmless
beyond a reasonable doubt. State v. Holmes, supra.
III.
During direct examination, Detective Hite, the arresting officer,
was discussing his conversation with respondent after his arrest and
stated, "I then asked him would he be willing to submit to a polygraph
examination and he - - -". When respondent immediately objected, the
jury was removed from the courtroom, and respondent moved for a
mistrial on the ground that testimony concerning the offer of a polygraph
test is inadmissible. Defense counsel argued a curative instruction could
not cure the impact on the jury because the inference was respondent
either refused to submit to the polygraph test or took the test and failed
it. The trial judge denied the motion for a mistrial and issued extremely
thorough curative instructions to the jury. Respondent renewed his
request for a mistrial following the instructions.4
The Court of Appeals indicated it had "serious doubts whether
the mention of the polygraph test, in light of the curative instructions
given here, amounts to reversible error." However, the court stated the
error 'must be considered in determining the fairness of [respondent's]
trial." State v. Johnson, supra.
3 April's physical examination did not reveal any signs of
inflammation.
4 The State argues this issue is not preserved for review. We
disagree. Respondent adequately preserved this issue for review. State v.
George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. denied, _ U.S. _, 117
S.Ct. 1261, 137 L.Ed.2d 340 (1997) (the issue is not preserved for review if
the objecting party accepts the judge's ruling and does not
contemporaneously make an additional objection to the sufficiency of the
curative charge or move for a mistrial).
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STATE v. JOHNSON
The decision to grant or deny a mistrial is within the sound
discretion of the trial judge. State v. Crim, 327 S.C. 254, 489 S.E.2d 478
(1997). The power of the court to declare a mistrial should be used with
the greatest caution and for plain and obvious causes. Id. A mistrial
should not be ordered in every case where incompetent evidence is
received. Id. An instruction to disregard objectionable evidence is usually
deemed to cure the error in its admission unless on the facts of the
particular case it is probable that notwithstanding such instruction the
accused was prejudiced. Id.
Evidence regarding the results of a polygraph test or the
defendant's willingness or refusal to submit to one is inadmissible. See
State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979) (witnesses should
avoid mentioning polygraph examinations; however, if it is mentioned, the
trial judge should be meticulous to see that no improper inference is
created by the testimony); State v. Pressly , 290 S.C. 251, 349 S.E.2d 403
(1986) (because the trial judge allowed repeated references to appellant's
submission to a polygraph examination, the jury instruction to disregard
the polygraph results could not cure the prejudice to appellant); State v.
Wright, 322 S.C. 253, 471 S.E.2d 700 (1996) (the results of a polygraph
test are inadmissible). The admission of such testimony has been ruled
harmless error where the trial court properly admonished the jury to
disregard the testimony. 29 Am.Jur.2d Evidence 546 (1994).
In our opinion, the mere inadvertent mention of an offer to
take a polygraph test does not result in error. Further, the extensive
curative instruction given by the trial judge cured any possible prejudice
caused by the brief mention of an offer of a polygraph examination.
Compare with State v. Pressly, supra (repeated references to a polygraph
examination could not be cured by an instruction for the jury to disregard
the testimony where it was shown that appellant confessed immediately
after taking the examination), State v. McGuire, supra (the trial judge
failed to ensure that no improper inference was created by the mention of
an offer to take a polygraph exam).
IV.
The State asserts the Court of Appeals erred in finding the
trial judge improperly admitted into evidence the search warrant and the
testimony regarding the items seized pursuant to the execution of the
search warrant. The Court of Appeals found this evidence was irrelevant
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STATE v. JOHNSON
and prejudicial.
Before the arresting officer testified, the solicitor informed the
trial judge she was not going to introduce into evidence the videotapes or
the vibrator seized by the police during the execution of the search
warrant at respondent's apartment. Instead, she planned to introduce the
search warrant and return during the testimony of the officer who seized
the evidence. Defense counsel objected on the ground that the warrant
was not relevant. . Further, defense counsel stated "I will object to any
kind of testimony as to what [the officer] seized as irrelevant." During the
course of the arresting, officer's testimony, the solicitor sought to admit the
search warrant and return into evidence. Defense counsel objected and
argued the search warrant was inadmissible hearsay and irrelevant.
Accordingly to defense counsel, "the warrant itself and all that evidence is
inadmissible and highly prejudicial, just by the inferences." (emphasis
added). The trial judge admitted the warrant and allowed the officer to
identify the various items seized pursuant to the execution of the search
warrant, including several pornographic videotapes, condoms, handcuffs, a
vibrator, and numerous photographs. When the State sought to introduce
the photographs into evidence, defense counsel again objected on the
ground of relevancy. The trial judge overruled the objection. The trial
judge again overruled defense counsel's objection when the officer testified
that some of the videotapes seized contained pornography.
Generally, a search warrant and an accompanying affidavit are
not admissible in a criminal case. State v. Alexander, 303 S.C. 408, 401
S.E.2d 167 (1991); State v. Arther, 290 S.C. 291, 350 S.E.2d 187 (1986);
State v. Latham, 275 S.C. 105150, 273 S.E.2d 772 (1981); State v. Smith, 230
S.C. 164, 94 S.E.2d 886 (1956). However, error in their admission is
reversible only upon a showing, of prejudice. State v. Alexander, supra.
The prejudicial character of the error must be determined from its
relationship to the entire case. Id.
The allegations in the affidavit concerning the existence of
pornographic material and sexual aids and testimony regarding the items
seized were irrelevant to the charges against respondent. The allegations
were not corroborated by other competent testimony nor were the
allegations cumulative to properly admitted evidence. None of the victims
claimed respondent photographed them, viewed pornographic material with
them or used these sexual aids with them. Accordingly, the error in
admitting the search warrant and testimony about the items seized was
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STATE v. JOHNSON
prejudicial to respondent.5
The State further argues any error in the admission of this
evidence was harmless beyond a reasonable doubt. Because we do not
find evidence of respondent's guilt overwhelming, the admission of the
evidence is not harmless. State v. Singleton, 303 S.C. 313, 400 S.E.2d 487
(1991) (refusing to find error harmless where the evidence of guilt was not
overwhelming). Except for Betty,6 the State relied on the minor victims'
testimony to convict respondent.7 Respondent denied any wrongdoing and
offered his version of the incidents during his testimony. Thus, it was
basically a swearing contest between the minor victims and respondent.
The admission of this totally irrelevant testimony served only to unfairly
prejudice respondent.
5 The State argues respondent failed to adequately object to the
officer's testimony regarding the items seized during the execution of the
search warrant. Therefore, any error in the admission of the search
warrant was not prejudicial because it was merely cumulative to evidence
introduced without objection and which was subject to cross examination.
State v. Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990) (admission of
evidence is harmless where it is cumulative to other evidence admitted
without objection); State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988)
(when information contained in the improperly admitted affidavit is merely
cumulative to other properly admitted evidence, there is no prejudice). In
our opinion, respondent's objection was sufficient to include both the
admission of the search warrant and the officer's testimony regarding the
items seized on the ground of irrelevancy. Therefore, neither the warrant
nor the testimony about the items seized was relevant evidence and should
not have been admitted.
6 The physician who examined Betty admitted her injury could have
been the result of an inflammation.
7 The stepdaughter's and stepniece's testimony did not have a great
impact on the jury because these incidents occurred many years earlier
and the incidents were investigated and dismissed at the time they
allegedly occurred.
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STATE v. JOHNSON
V.
Although the Court of Appeals did not find the exclusion of the
prior shoplifting conviction, the mention of the polygraph test and,
questionably, the admission of the search warrant were reversible errors in
themselves, it held the cumulative effect of these errors warranted reversal
because the errors deprived respondent of a fair trial. State v. Johnson,
supra.
In our opinion, the facts of this case do not support a finding
cumulative errors warranted reversal. While the admission of the search
warrant was prejudicial error, the error of refusing to admit the prior
shoplifting conviction for impeachment purposes was not prejudicial and
the inadvertent mention of the polygraph examination was not error.
Respondent must demonstrate more than error in order to qualify for
reversal on this ground. Instead, the errors must adversely affect his
right to a fair trial. See Tennant v. Marion Health Care Foundation, 459
S E.2d 374 (W.Va. 19905) (cumulative error doctrine provides relief to a
party when a combination of errors that are insignificant by themselves
have the effect of preventing a party from receiving a fair trial and it
requires the cumulative effect of the errors to affect the outcome of the
trial). Here, respondent has failed to show he suffered prejudice
warranting a new trial based on cumulative trial error. Compare with
State v. Peterson, 287 S.C. 244, 335 S.E.2d 800 (1985) (although Court
held cumulation of errors warranted reversal, each error caused prejudice
against appellant); State v. Freeman, 319 S.C. 110, 459 S.E.2d 867 (Ct.
App. 1995) (finding the cumulative effect of the trial judge's conduct, not
trial errors, warranted reversal). "As we have stressed on more than one
occasion, the Constitution entitles a criminal defendant to a fair trial, not
a perfect one." State v. Mitchell, 330 S.C. 189, 199-200, 498 S.E.2d 642,
647-48 (S.C. 1998) (quoting Delaware v. Van Arsdall, 475 U.S. at 681, 106
S.Ct. at 1436, 89 L.Ed.2d at 684).
However, as discussed in Part IV the error in admitting the
search warrant and testimony regarding the items seized was prejudicial
and warrants reversal of respondent's conviction.
AFFIRMED IN PART; REVERSED IN PART.
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
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