EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, August 21, 2014

Apples to Apples?: Court of Appeals of South Carolina Deems Prior Act Evidence Admissible in Lewd Act Prosecution

Similar to its federal counterpartSouth Carolina Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

So, how does a court go about determining whether evidence that "may" be admissible under this Rule should in fact be admitted? Let's take a look at the recent opinion of the Court of Appeals of South Carolina in State v. McCombs, 2014 WL 4087913 (S.C.App. 2014).

In McCombs, Wayne McCombs was charged with committing a lewd act on a minor. Thereafter, during a pretrial hearing, the circuit court denied the State's motion in limine seeking to admit evidence of a prior similar act allegedly committed by McCombs. The State subsequently appealed.

On appeal, the State sought to admit the prior act to prove common plan or scheme, and the Court of Appeals responded by noting that

In [State v.] Wallace, our supreme court listed several factors for the circuit court to consider when determining whether there is a close degree of similarity between the prior bad act and the charged crime in cases involving the sexual abuse of a minor:

(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 battery.

The Court of Appeals then found that there were six or seven similarities between the crime charged and the prior abuse allegedly committed against the other victim: Jessica. These similarities were that

(1) the female victims were approximately the same age; (2) the abuse occurred in the pool at the same residence; (3) the abuse occurred during a party; (4) both victims were neighborhood children; (5) both victims were touched underneath their bathing suits; (6) the touching occurred underwater; and (7) McCombs continued to talk to the victims while the abuse occurred.

The Court of Appeals did acknowledge that the circuit court had found two dissimilarities: 

(1) McCombs' use of threats or coercion and (2) McCombs' consumption of alcohol prior to inappropriately touching the girls.

That said, the appellate court found that the circuit court erred in determining that the dissimilarities outweighed the similarities and concluded that the prior bad act evidence was admissible under South Carolina Rule of Evidence 404(b) (and not too prejudicial to be admitted under South Carolina Rule of Evidence 403).



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