THIS OPINION HAS NO PRECEDENTIAL VALUE.† IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
Anthony W. Nellis, Jr., Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Dorchester County
Jackson V. Gregory, Circuit Court Judge
Memorandum Opinion No. 2005-MO-008
Heard November 3, 2004 Ė Filed February 28, 2005
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Walter M. Bailey, Jr., of Summerville, for Petitioner.
Kelly Knight Byrd, Jennifer L. Queen, and Mark Alan Leiendecker, all of Summerville, for Respondent.
JUSTICE PLEICONES:† We granted certiorari to review a decision of the Court of Appeals reversing respondentís conviction and remanding the matter for a new trial.† State v. Nellis, Op. No. 2003-UP-459 (S.C. Ct. App. filed July 8, 2003).† We affirm.
The Court of Appeals found error and prejudice in the admission of alleged prior bad acts committed upon the victim by respondent.† We agree.
Evidence of other crimes must be put to a rather severe test before admission.† The acid test of admissibility is the logical relevancy of the other crimes.† The trial judge must clearly perceive the connection between the other crimes and the crimes charged.† [Citation omitted].† Further, other crimes which are not the subject of conviction must be proven by clear and convincing evidence.† [Citation omitted].
State v. Cutro, 332 S.C. 100, 103, 504 S.E.2d 324, 325 (1998).†
The victimís testimony was vague and inconsistent.† Whether there was logical relevancy between the crime charged and the other alleged assaults is a close question: whether there was clear and convincing evidence of these other incidents is not.† The trial judge erred in admitting the prior bad acts evidence.† State v. Cutro, supra.† The decision of the Court of Appeals is
MOORE, WALLER, BURNETT, JJ., concur.† TOAL, C.J., dissenting in a separate opinion.
Chief Justice Toal:† I respectfully dissent.† In my view, the prior bad acts committed upon the victim by Respondent are admissible.††† Therefore, I would reverse the decision of the court of appeals and uphold Respondentís conviction.
The majority misconstrues the law to the extent that it holds the prior bad acts by Respondent are not relevant.† In my opinion, the prior bad acts are relevant and should be admitted.† I find the reasoning set forth in State v. Weaverling to be persuasive.† 337 S.C. 460, 468, 523 S.E.2d 787, 791 (Ct. App. 1999).† When a criminal defendantís prior bad acts are directed toward the same victim and are very similar in nature, those acts are admissible as a common scheme or plan.† State v. Weaverling, 337 S.C. at 468, 523 S.E.2d at 791.† In Weaverling, the defendant repeatedly raped the same child.† Id. at 465, 523 S.E.2d at 789.† The court of appeals held the defendantís prior acts were admissible even though the acts were not charged.† Id. at 468, 523 S.E.2d at 791.† The court reasoned that ď[w]here 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.Ē Id.† (citing State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995)).† Moreover, the admission of evidence in a criminal prosecution is within the discretion of the trial court, and its ruling will not be disturbed on appeal unless an abuse of discretion is shown.† State v. Wright, 322 S.C. 253, 255, 471 S.E.2d 700, 701 (1996).
In the present case, evidence was presented that the same victim was attacked on several occasions.† However, none of the prior incidents were reported or charged.† In my opinion, these prior acts should be admitted to show a common plan or scheme and any prejudice from the admission of the evidence would be outweighed by its probative value.†
Further, in my opinion, the victimís testimony was not vague and inconsistent.† The victim testified that Respondent raped her on several occasions, in the same manner.† The victim testified further that on all prior occasions and the incident that led to charges, Respondent attacked the victim at the home.† Accordingly, it is my opinion that prior bad acts were shown by clear and convincing evidence.
Therefore, in my opinion, the Respondentís prior bad acts were properly admitted by the trial court.† Accordingly, I would affirm the ruling of the trial judge and uphold Respondentís conviction.