803 S.E.2d 899
S.C. Ct. App.2017Background
- Perry, the girls' stepfather, was tried and convicted of two counts of first‑degree and two counts of second‑degree criminal sexual conduct based on allegations by Daughter Two and Daughter Three that he digitally penetrated and, in Daughter Two's case, performed oral sex on them during weekend visitations.
- The State sought to admit testimony from Brandy Newcomer, a former stepdaughter who alleged similar long‑ago abuse by Perry, under Rule 404(b) as evidence of a common scheme or plan; the trial court allowed her testimony after an in‑camera proffer and redaction of more inflammatory particulars.
- Newcomer described repeated digital penetration occurring in victims’ bedrooms, threats to prevent disclosure, and abuse beginning in preteen years; some details differed in degree and timing from the charged victims’ accounts.
- Dr. Nancy Henderson, a pediatrician who examined Daughter Two and Daughter Three years after disclosure, testified the exams were normal but that normal findings are common with delayed disclosure and that her findings were consistent with sexual abuse.
- Perry objected to (1) admission of Newcomer’s testimony as improper propensity evidence and (2) Dr. Henderson’s answer that her findings were consistent with abuse as vouching for the victim.
- The court denied both challenges; Perry was convicted and appealed. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Newcomer under Rule 404(b) (common scheme/plan) | State: Newcomer’s testimony is relevant, proved by clear and convincing evidence, and shows a common scheme (similar ages, relationship, location, threats, manner). | Perry: Testimony is inadmissible propensity evidence; lacks close similarity; records absent; prejudicial. | Affirmed — trial court did not abuse discretion: any evidence supported clear and convincing finding; similarities (age range, parent‑child relationship, bedrooms at night, threats, digital penetration) outweighed dissimilarities; court properly redacted more inflammatory particulars. |
| Rule 403 prejudice balancing for Newcomer testimony | State: Probative value of showing common scheme outweighs prejudice. | Perry: Prior act testimony is temporally remote, raises credibility questions, and the risk of unfair prejudice substantially outweighs probative value. | Affirmed — remoteness not dispositive; probative value high given pattern and redaction; no unfair prejudice requiring exclusion. |
| Expert vouching: Dr. Henderson’s statement that findings were "consistent with" abuse | State: Expert can explain that a normal exam is consistent with delayed disclosure and can assist the jury. | Perry: The expert’s statement improperly vouched for the victim’s credibility. | Affirmed — not improper bolstering: Dr. Henderson framed normal findings as common with delayed disclosure and did not opine on truthfulness; her testimony assisted the jury under Rule 702. |
| Scope of permissible redaction of prior bad‑act testimony | State: Redaction is appropriate to avoid unfair prejudice while preserving pattern evidence. | Perry: Redacted testimony still rendered the act prejudicial and dissimilar. | Affirmed — redaction of dissimilar, more inflammatory particulars is proper and does not defeat admissibility under 404(b). |
Key Cases Cited
- State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009) (sets factors for common‑scheme analysis in sexual‑abuse cases and permits redaction of dissimilar sexual particulars to avoid unfair prejudice)
- State v. Clasby, 385 S.C. 148, 682 S.E.2d 892 (2009) (404(b) admissibility requires relevance, clear and convincing proof of prior act, and close similarity)
- State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001) (any‑evidence standard supports admission of unconvicted prior act where testimony supplies evidentiary support)
- State v. Gaines, 380 S.C. 23, 667 S.E.2d 728 (2008) (prior unconvicted bad acts must be shown by clear and convincing evidence)
- State v. Saltz, 346 S.C. 114, 551 S.E.2d 240 (2001) (admission/exclusion of evidence reviewed for abuse of discretion)
- State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011) (forensic interviewer reports improperly admitted where language indicated belief in victims’ truthfulness)
- State v. Chavis, 412 S.C. 101, 771 S.E.2d 336 (2015) (experts may not opine on credibility; certain recommendations can imply belief and be improper)
- State v. Douglas, 367 S.C. 498, 626 S.E.2d 59 (2006) (expert description of procedures without explicit statements of belief does not necessarily constitute vouching)