725 S.E.2d 730
S.C. Ct. App.2012Background
- Atieh owned two Subway stores in Easley, SC; a Victim employee accused him of inappropriate touching.
- A Pickens County grand jury indicted Atieh for ABHAN and assault with intent to commit third-degree CSC.
- Atieh moved to suppress testimonies of four former employees alleging past bad acts under Rule 404(b), SCRE.
- The trial court admitted Employee 4’s testimony under the common scheme or plan exception with limits; other employees’ testimony was unpreserved.
- Victim testified that Atieh touched her in various ways, including placing a hand inside her waistband; other employees corroborated similar conduct.
- The State proceeded to trial; Atieh’s directed-verdict motions on the CSC charge were denied; the jury convicted on ABHAN and the CSC charge, later appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior bad acts under 404(b) | Atieh: prior acts inadmissible for propensity; probative value outweighed by prejudice | State: common scheme or plan admissible; sufficient similarity and safeguards | Employee 4 admissible under common scheme or plan; others not preserved |
| Preservation of objection to prior acts | All issues preserved by contemporaneous objections | Only Employee 4 issue preserved; others unpreserved | Issues regarding Employees 1–3 not reviewed; Employee 4 preserved |
| Directed verdict on assault with intent to commit CSC | Victim's testimony fails to prove intent to sexual battery; no evidence of attempt | Evidence supports intent via conduct and surrounding circumstances | Trial court erred; no evidence from which jury could infer intent to commit CSC |
| Impact of 404(b) evidence on verdict | Common scheme evidence supports guilt | Even with 404(b) admission, jury could misapply | Prejudice not shown to invalidate these convictions; limited instruction mitigated risk |
Key Cases Cited
- State v. Wallace, 384 S.C. 428 (2009) (guides factors for common scheme or plan under Rule 404(b))
- State v. Tutton, 354 S.C. 319 (Ct.App.2003) (common scheme or plan analysis; legal standard for admissibility)
- State v. Pagan, 369 S.C. 201 (2006) (unfair prejudice balancing in Rule 404(b) analysis)
- State v. Wannamaker, 346 S.C. 495 (2001) (preservation of in limine rulings; exception basics)
- State v. Forrester, 343 S.C. 637 (2001) (motion in limine preservation when final ruling given)
- State v. Wiles, 383 S.C. 151 (2009) (finality of trial court ruling on in limine matters preserved appeal)