THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State,        Respondent,

v.

Earl Goins,        Appellant.


Appeal From York County
Henry F. Floyd, Circuit Court Judge


Unpublished Opinion No. 2003-UP-060
Heard September 11, 2002 - Filed January 21, 2003


AFFIRMED


Assistant Appellate Defender Katherine Carruth Link, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Attorney General Charles H. Richardson and W. Rutledge Martin, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.


PER CURIAM: A jury convicted Earl Goins of two counts of criminal sexual conduct (CSC) and four counts of lewd act on a minor, and the trial court sentenced him to consecutive 20-year terms of imprisonment for CSC and concurrent 15-year terms for the lewd acts. Goins appeals, arguing the trial court erred in failing to sequester the two victim-witnesses, and in admitting evidence of other bad acts. We affirm.

FACTS/PROCEDURAL HISTORY

The victims, "S" and "B", were twelve and fourteen years old, respectively, when Goins allegedly abused them. A York County grand jury indicted Goins for CSC and lewd act upon a minor stemming from criminal acts said to have occurred on January 23, 1999. At trial in April 2000, the boys testified as follows.

S first testified Goins, who knew S's father, initially had befriended him and given him several presents, including clothes, camping gear, a rifle, and money. According to S, on several occasions he spent the night at Goins' home, and Goins took pictures of him and showed him a pornographic video containing scenes of a man engaging in sex with prostitutes. S further testified that because his father would not take him on camping and fishing trips, Goins offered to take him on such trips.

On February 23, 1999, S invited his friend B to accompany him on a camping trip with Goins. S and B met Goins at his home, but because it was raining that day they all spent the night at Goins' home instead of going camping. S stated they rented and watched two movies from Blockbuster's, one of which was a foreign-language film depicting a "guy having sex with this girl." B testified that on this evening Goins provided both he and S with beer and that they had played a drinking game.

According to the boys, they played "hide and seek" after the drinking game concluded. S said he was hiding in the closet of a bedroom when Goins found him and threw him onto the bed; when S told Goins he was scared, Goins let him go. S stated Goins then went into the living room and masturbated in front of him and B. After masturbating, Goins told the boys to take off their clothes and he measured each of their penises with a ruler. At this time Goins told the boys he wanted to shave their pubic hair. S testified he went into the bathroom and allowed Goins to shave him, but that B refused.

S further testified Goins told them to perform oral sex on one another, and that they did so. Goins then had the boys bend over, rubbed gel on them, and asked them to have anal sex with each other. They refused and resumed watching movies. S stated that the next morning Goins told them they should swear on the Bible that they wouldn't tell what happened, and that if they did tell they would go to hell and he'd never take them camping again.

S also testified that the following weekend, he, B, and Goins went camping at Woods Ferry. During that trip, Goins entered the boys' tent, took off his clothes, and had the boys take off theirs. According to S, Goins then told him and B to lay on their bellies while Goins slid his penis through their legs. S stated Goins told them that "he wouldn't put his penis in our butt[s], because it would hurt." S further recalled that when he later fell asleep, he awoke to find Goins kissing his belly and touching his butt, and stated that later in the morning Goins performed oral sex on him.

B provided similar testimony to that of S, including recounting the events of January 23, 1999. B affirmed that Goins measured the boys' penises with a ruler, had them perform oral sex on one another, gave them alcohol, and rubbed Vaseline on their buttocks. Additionally, B testified that after S went to sleep, he and Goins performed oral sex on one another. B also testified about the camping trip to Woods Ferry, stating that during the trip Goins rubbed on him and S and put his penis through their legs. According to B, he and Goins also performed oral sex on one another during the camping trip.

Over Goins' objection, another alleged victim, "T," was allowed to testify. T, about fourteen when he first met Goins in the summer of 1994, testified Goins took him on camping trips and that he often stayed at Goins' home. He described Goins' home as "pretty much a party house" where he and his friends could stay and drink alcohol provided by Goins. Like the others, T averred Goins bought him gifts and gave him money from time to time.

T testified that Goins' abuse began one night when he was staying at Goins' house. At the time, he awoke to find Goins performing oral sex on him. When he told Goins to stop, Goins apologized and did. After that incident, T continued to visit Goins. Approximately six months later, Goins again approached as he slept and began performing oral sex. On this occasion, however, T just pretended to be asleep. In addition, T confirmed Goins measured his penis on two or three occasions, took pictures of him naked, and showed him pornographic movies. In all, T testified he had contact with Goins from 1994 until 1997, and that Goins performed oral sex on him approximately twenty times during that period.

To supplement the testimony of S, B, and T, the State presented numerous exhibits obtained from a search of Goins' home, including naked photographs of T, photographs of S and B on the Woods Ferry camping trip, and the pornographic film S said Goins had shown him when the two were alone.

LAW/ANALYSIS

Goins first argues the trial court abused its discretion in refusing his motion to sequester S and B. We disagree.

"The trial court may order the sequestration of witnesses upon its own motion or by motion of any party." State v. Tisdale, 338 S.C. 607, 616, 527 S.E.2d 389, 394 (Ct. App. 2000); Rule 615, SCRE. A party, however, "is not entitled to have witnesses sequestered as a matter of right." Tisdale, 338 S.C. at 616, 527 S.E.2d at 394. In particular, "[a] person must not be sequestered from a proceeding adjudicating an offense of which he was a victim." S.C. Code Ann. 16-3-1550(B) (Supp. 2001). Thus, because both S and B were victim-witnesses, the trial court appropriately refused to sequester them.

Goins also contends the trial court erred in admitting evidence of other bad acts, specifically T's testimony, the videotape and pictures, and S and B's testimony concerning the sexual misconduct that allegedly occurred on the camping trip to Woods Ferry. We find no error.

The admission of evidence lies within the sound discretion of the trial court. State v. Smith, 337 S.C. 27, 522 S.E.2d 598 (1999). A trial court's ruling on admissibility will not be reversed absent an abuse of discretion or the commission of legal error resulting in prejudice. State v. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct. App. 2001). Furthermore, the court's decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances. Id. at 357, 543 S.E.2d at 593.

"Evidence of other crimes or bad acts is inadmissible to prove the bad character of the defendant or that he acted in conformity therewith. Such evidence is admissible, however, when it tends to establish motive, identity, a common scheme or plan, the absence of mistake or accident, or intent." State v. Beck, 342 S.C. 129, 135, 536 S.E.2d 679, 682 (2000); see Rule 404(b), SCRE; State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). When evidence is offered as proof a common scheme or plan, a close degree of similarity or connection between the prior bad act and the present crime is necessary. State v. Ford, 334 S.C. 444, 513 S.E.2d 385 (Ct. App. 1999). Where the other crime or bad act is of such a close similarity to the charged offense that it enhances the probative value of the evidence so as to overrule any prejudicial effect, it is admissible. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993).

Although Goins was indicted and tried for acts of sexual misconduct occurring on February 23, 1999, we agree with the trial court that evidence of other acts of sexual misconduct toward the boys and T falls within the common scheme or plan exception under Rule 404(b), SCRE, and Lyle. This exception generally is "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. McClellan, 283 S.C. 389, 392, 323 S.E.2d 772, 774 (1984) (quoting State v. Whitener, 228 S.C. 244, 265, 89 S.E.2d 701, 711 (1955)). Here, the challenged testimony confirmed that Goins engaged in similar sexual misconduct with the same victims within a close proximity of the charged offenses. The trial court, therefore, did not err in finding the probative value of the evidence clearly outweighed its prejudicial effect. See Whitener 228 S.C. at 265, 89 S.E.2d at 711 (finding no error when the trial court allowed the victim to testify to sexual acts occurring on a date different than the charged offense); State v. Weaverling, 337 S.C. 460, 523 S.E.2d 787 (Ct. App. 1999) (holding the trial court did not err in admitting evidence of uncharged sexual misconduct where such occurred with the same victim and under similar circumstances as the charged offense).

As to T, our courts have permitted other bad acts evidence under the common scheme or plan exception when it has a close degree of similarity or connection with the charged offense. See McClellan, 283 S.C. at 389, 323 S.E.2d at 772 (allowing three daughters to testify against father being tried for sexual abuse of only one because all were abused in a similar manner under similar circumstances); State v. Adams, 323 S.C. 139, 504 S.E.2d 124 (Ct. App. 1998) (finding no error in the trial court's admission of evidence regarding Adams' prior abuse of one step-daughter when he was charged with abusing another step-daughter). Here, as the State notes, the acts testified to by T were strikingly similar to the offenses Goins was charged with committing against B and S, and all occurred under similar circumstances, to wit: (1) the first sexual contact occurred while the victims were asleep; (2) Goins provided each with with alcohol; (3) Goins measured each victim's penis; (4) Goins photographed the victims naked; (4) Goins watched pornographic movies with the victims; (5) Goins bought each victim gifts; (6) Goins took all of the victims camping; and (7) the sexual misconduct generally involved oral sex.

AFFIRMED.

GOOLSBY, HOWARD, and SHULER, JJ., concur.