Court of Appeals of South Carolina Finds Rule 801(d)(2)(B) Applied to Defendant's Head Nod

Similar to its federal counterpart, South Carolina Rule of Evidence 801(d)(2)(B) provides an exclusion to the rule against hearsay for

The statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth.

The recent opinion by the Court of Appeals of South Carolina in State v. Gleaton, 2024 WL 3958596 (S.C. App. 2024), provides a good illustration of the rule in action.

In Gleaton, Kenneth Gleaton was charged with murder, second-degree arson, and related crimes. At trial, the State called the victim's coworker and roommate, Jessica Gantt. Gannt testified to a threat Gleaton told her to communicate with the victim. Then, according to Gantt,

The day after making this threat, Gleaton showed up at Victim's house. He sat down at the kitchen table and asked Gantt whether Victim told her what had occurred. Gantt revealed that Victim told her Gleaton pulled a gun on her; she further testified Gleaton acknowledged this by nodding “yes.” Although Gleaton later resumed living at Victim's home, Victim asked him to leave approximately one week before her murder.

In finding that the evidence of Gleaton's head nod was properly admitted, the Court of Appeals of South Carolina ruled as follows:

We find Gleaton adopted the statement when he nodded “yes” and questioned Gantt about what Victim told her. On appeal, Gleaton asserts that for Rule 801(d)(2)(B) to apply, the person who initially made the comments adopted by a defendant must have done so in the presence of a party opponent. However, we are not convinced such a requirement exists within the rule....In fact, the court in Knoten rejected a similar argument in finding Knoten adopted his mother's statement when he subsequently confessed to the crime outside her presence....Despite the circuit court's problematic and unduly harsh treatment of defense counsel during her proper efforts to object, we find the court did not abuse its discretion in admitting Gantt's testimony under Rule 801(d)(2)(B), SCRE.

-CM