*1 S.E.2d 716 Cаrolina, Respondent, The STATE South NELSON, Larry Petitioner. Don
No. 24778.
Supreme Court of South Carolina. Oct. 1997.
Heard April Decided 1998.
Rehearing May Denied *2 Columbia, petitioner. B. for Swerling, Jack Condon, General, John W. McIn- Molony Attorney Charles Zelenka, tosh, General, Assistant Donald J. Deputy Attorney Salter, III, General, Edgar Senior Deputy Attorney William General, Columbia; Myers, V. and Donald Attorney Assistant Circuit, Solicitor, Lexington, respondent. Eleventh Judicial WALLER, Justice: convicted of four counts Larry
Petitioner Don Nelson was (“CSC”) minor, and criminal conduct with a degree *3 first a three act on a minor. The victim was four counts of lewd occurred between De- allegedly old child. The offenses year accompany victim would June when the cember (to brother, home visit Petitioner’s her father to Petitioner’s lived). allegedly All of the offenses whom Pеtitioner with occurred Petitioner’s bedroom. thirty years imprisonment sentenced to
Petitioner was CSC, for each years imprisonment of and to ten each count to run consec act. sentences were ordered count of lewd The Petitioner’s convic of affirmed utively. Appeals The Court Nelson, (Ct.App. tion. S.E.2d 1996). to consider whether This certiorari granted Court find it at trial. We properly was admitted certain evidence convictions, and remand for not, reverse Petitioner’s trial. new
ISSUES admitting physical certain trial court err I. Did the in Petitioner’s bedroom? evidence found post- details of admitting err in the trial court II. Did police? made to statements Petitioner arrest
DISCUSSION I. Physical Evidence trial, evidence,
At the State following introduced the cоnsist ing of exhibits or testimony about exhibits from seized Peti tioner’s bedroom after his 1: arrest
(1) animals, Two stuffed “Cookie Monster” and “Oscar the
Grouch.” (2) Testimony about fifty-eight some videotapes homemade
containing segments various from taped pro- television grams, including events, a school district’s schedule of shows, aerobics, cartoons, “Mr. Knozit” children’s chil- shows, game dren’s young girls’ Olympic gymnastic events, “just say no”-type teaching show children about molestation.
(3) Tales, Grimm’s Complete Fairy from Excerpts specifi-
cally Tale,” “The Fitcher’s Bird about a story wizard who takes young girls from their homes (parts which underlined). had been Attached to the front page was a laminated picture young, year-old three to four long white child with brown hair.2 Inserted in the book elsewhere were piсtures of “Save the Children” adver- tisements about young female children with brown hair. On the back of one of these advertisements was an Monsters,” article entitled “Modern Day subject which was child molestation.
(4) A photo album containing a collage magazine pictures
of young girls variously clothes, dressed in gymnastic underwear, suits, bathing full clothing. wallet, (show- Petitioner’s his containing driver’s license
ing 1/4/50), his DOB as a “punch-out label” containing *4 name, Punky Brewster’s and Petitioner’s membership Punky card to the official Brewster fan club.3 gave police 1. Petitioner written consent to search his residence. Testimony 2. photos was introduced that this other resembled the victim. Punky celebrity, 3. young Brewster is a child long white female with brown hair.
5' (6) of a picture commercial containing A frame picture hair, in long with brown dressed white female
young clothing. gymnastic
(7) shoul- white female with young A lаminated picture hair, lying on a couch.
der-length brown (8) white female young A on a card of a picture laminated hair, clothing, apparently wearing night brown long
with circular. advertising from a magazine cut (9) of the pictures laminated containing A frame two picture magazine cut from a young girl, apparently
same white advertisement, with brown hair. long Punky Brewster.4 pictures One of six offered character evi- improper the evidence was argued Petitioner and should be excluded. dence hearing, a motion in limine initially, during
While “ludicrous,” he thought the offer of evidence judge testimony of an put up his mind after the State changed part, of children. on sexual trauma and abuse expert of pedophiles.5 charаcteristics witness testified about taking about often have fantasies pedophiles She testified pedophiles She also testified away from other adults. children items, including stash” of childlike pretty good “have a often books, children’s clothing, children’s children’s videotapes, used for pictures, part drawings, toys, photographs, to introduce then moved When the State gratification. trial, judge overruled later in the physical evidence, character improper it was argument Petitioner’s but of a a “character issue” not of probative it was finding characteristic.” “personality evidence, the admission affirmed Appeals
The Court inci- question the evidence or not holding “[w]hether list of evidence thаn slightly different Appeals recited a 4. The Court of Nelson, Apparently, that at 769. at this. See at it would introduce State contended from what the Court made its list actually at trial. hearing, introduced not what was in limine the motion Pedophilia children.” pedophile “love of expert means The testified children are the perversion in which as "sexual been defined has Commonwealth, 650 n. 816 S.W.2d object.” Dyer v. preferred sex (1983 Dictionary Collegiate Ninth New (Ky.1991) (quoting Webster’s ed.)). *5 6 character, it was on poorly [Petitioner’s]
dentally reflected crimes for to commit the motive to show [Petitioner’s] relevant 381, at 769. at 471 S.E.2d 322 S.C. charged.” which he outweighed value of the evidence probative It then found 382, at Id. from its admission. prejudice unfair any danger of holding. in this error argues Petitioner at 770. 471 S.E.2d agree.6 We case, cannot attack the State
In a criminal places first unless the defendant of the defendant character State, 298 379 Mitchell v. S.C. in issue. his character curiam). vein, (1989) In a evidence similar (per 123 S.E.2d prove inadmissible generally or bad acts is other crimes (1) to establish the evidence tends unless charged crime (4) (3) accident, (2) intent, of mistake or motive, absence Stokes, v. identity. or State plan, scheme or common (1983); Lyle, v. State 304 S.E.2d S.C. (1923).7 policy on the grounded Both rules are
118 S.E.
purposes
not
“for
evidence is
admissible
that character
or has
a criminal character
possesses
accused
that the
proving
charged.”
with which he is
commit the crime
propensity
(1990).
Peake,
378, 380,
State
under these
clearly inadmissible
find the evidence
We
only
its
judge
recognized,
trial
himself
As the
standards.
charac-
aspect
it
on an
of Petitioner’s
is as
reflects
relevance
goal
preservation of error rules
Considering that the ultimate
behind
6.
appeal
addressed to
raised on
has first been
insure that an issue
is to
court,
argument
reject
by
we
the State’s
ruled on
the trial
facts of this
procedurally barred under the
of this issue is
consideration
Ross,
(1978) (once the
S.C.
case.
Cf.
necessary
objection
questioning,
it is not
to a line of
court rules on an
objection
question).
each
repeat the
after
that counsel
now been codified in
common law rules has
The substance of these
trial):
(not
the time of Petitioner’s
in effect at
SCRE 404
(a)
person’s
generally.
character
Evidence
Character
purpose
proving
for the
character
is not admissible
or a trait of
occasion, except:
particular
conformity therewith on a
action
here],
[exceptions
pertinent
crimes,
crimes,
(b)
wrongs,
other
or acts. Evidence of
Other
person
prove
character of a
admissible to
wrongs,
acts is not
or
however,
conformity
may,
therewith.
It
be
action in
to show
order
motive,
identity,
the existence of a common
to show
admissible
accident,
intent.
of mistake or
plan,
the absence
scheme or
ter,
i.e. that he is a pedophile.8 We find the distinction
between “character”
and “persоnality characteristic” mis
placed. “The term ‘character’ refers to a generalized descrip
tion of a person’s disposition or
trait
such as
*6
honesty,
temperance
peacefulness.
Generally speaking,
character
refers to an aspect of an individual’s personality
usually
which is
described in evidentiary law as
‘propensi
”
Smith,
State v.
ty.’
647,
84
App.3d
1160,
Ohio
617 N.E.2d
denied,
cert.
(1992),
1169
1488,
66 Ohio St.3d
Several states rejected have testimony or showing evidence a defendant See, is a pеdophile for this exact reason. e.g., State, Turtle v. 600 So.2d 1221 (Fla.Dist.Ct.App.1992) (error in admitting expert testimony about characteristics of pedophile because it was asking “the to jury convict because State, defendant fit a pedophile profile”); Francis v. 512 (error So.2d 282 in (Fla.Dist.Ct.App.1987) admitting ex- pert testimony that defendant has a “personality characteristic Hester, being children”); attracted to 114 Idaho evidence, admitting judge stated: anything I don’t think it impugning has to do with his character at all. It’s not a personality character issue. It’s a characteristic that is perhaps testimony [expert consistent with of the as to the witness]
profile pedophile, appears of what is referred to aas which tо be charges consistent with the and the facts here. 8 (error testimony admitting expert in 760 P.2d with those traits consistent character had
that defendant 132 A.D.2d abusers); Bagarozy, People known child (1987) (error admitting 848, N.Y.S.2d NAMBLA9 including apartment from defendant’s seized true purpose films because “the newsletters, photographs, to defen- expose was of this evidence the introduction behind to in order demon- and attitudes preferences dant’s sexual Smith, charged”); crimes to commit the a propensity strate (error testimony on expert in admitting N.E.2d at 1160 State, characteristics); Brewington pedophile banc) (en (reversing (Tex.Crim.App.1991) S.W.2d that the prose- the record “it is clear from conviction because appellant to introduce sought cutor propensity prove appellant’s solely pedophile fixated conformity therewith he acted and that molest children offense”). charged he committed the when *7 a Kentucky addressed of Supreme the Court Dyer, 816 judice. sub to the case very scenario similar factual a child sodomizing trial for was on 647. The defendant S.W.2d seized The state introduced evidence of twelve. age under the of for- including posters old apartment, from the defendant’s porno- from idols, and articles pictures nude teenage mer activity, homosexual about pamphlet a graphic magazines, publications. and other newspapers, from boys of cut pictures was allowed describing the seized evidence officer police The characteristics, and to state pedophile testify to about looking any house he was in of defendant’s that the search to, ah, characteristics of possible that would “relate evidence conviction, In reversing at 650. defendant’s Id. pedophile.” the court stated: purpose, the sole purpose, obvious the real
It was a sexual was, appellant to the general, prove in evidence that his and, perversion to particular, prove in pervert, material reading basis of to do so on the pedophilia, would offend of which in his some possession found against them jurors, prejudicing number of substantial anything proved it to whether regаrd without appellant Association, which advocates sexual Man-Boy Love North American boys. activity adults and between
9 him. against pictures The various pornographic and articles and the nondescript photographs memorabilia were of meaning except provided by devoid the investigating officer’s police prosecutor’s argument and the labeling proof material seized that the appellant was a pedophile. declare, unqualifiedly,
We that citizens and residents Kentucky subject are not to criminal conviction upon based the contents of their bookcase unless and until there is linking evidence it to the crime charged____ If this materi- al is to supposed provide picture as a appellant pedophile, such profile evidence is inadmissible in criminal cases to or prove guilt either innocence.
Id. at 652.10
The
argues
State
evidence was
to
offered
show
character,
Petitioner’s
but was instead admissible under Lyle
motive,
intent,
show
and a common scheme or
We
plan.
disagree, finding
no probative
little to
value regarding any of
Furthermore,
these theories.11
very apparent
prejudicial
10. We have found no
directly addressing
cases
South Carolina
issue
remotely
involved here.
cases
Most
even
similar concern the
misconduct,
prior
admission of a defendant’s
sexual offenses or
as
tendencies,
opposed
physical
showing'
preferеnces
analyzed
usually
plan”
under
exception
the "common scheme or
See,
Bell,
18,
364,
denied,
Lyle.
e.g., State v.
302 S.C.
S.E.2d
393
cert.
881,
227,
(1990);
Rogers,.
U.S.
S.Ct.
112 L.Ed.2d 182
State
505,
(1987),
293 S.C.
grounds,
S.E.2d 7
overruled on other
State v.
(1993); Stokes,
Schumpert, 312 S.C.
impact such
Alexander,
value,
any,
if
have.
v.
303
may
it
State
probative
(1991) (even
and
377,
146
relevant
otherwise
S.C.
401 S.E.2d
prejudice).
be excluded for undue
may
admissible evidence
agreed
argument
with the State’s
Appeals
The Court
motive,
v.
relying on our decisions
State
regarding
primarily
Johnson,
Bell,
(1990),
18,
State v.
364
S.C.
S.E.2d
(1991),
denied,
993,
cert.
503 U.S.
306 S.C.
[T]he involved case A аpparent. person commits or to com- attempts [is] mit sexual for the obvious motive of sexual [a offense] gratification. Since motive can not be to have deemed been trial, a material issue at “other acts” [defendant’s] was not to prove admissible this matter.
... While the acts of which the defendant was accused
certainly
would
be
as perverted
depraved
viewed
ac-
views,
cording to most
alleged
motive and intent of the
remain, nevertheless,
action
gratification.
those of sexual
That fact is
from the
and is
apparent
charges
not material
crimes,
issue. Evidence of other
wrongs,
may
or acts
not
be introduced to
his motive or
in
prove
committing
intent
operative
acts of the
alleged.
offenses
(internal
omitted).13
inferences about
defendant’s
evidence, such evidence’s
from thе
tially
questioned
drawn
greatly
attenuat-
on the ultimate inference
value
probative
*10
ed”).
Millar,
P.2d
Or.App.
v.
482
State
Cf.
(evidence
of
pornographic magazine
possessed
defendant
of intent where defendant admitted
young
probative
girls
but
his intent was to
pants
victim’s
claimed
placing hand down
contact).
not
toy,
a
sexual
retrieve
victim,
Here,
with the
any
denied
contact
Petitioner
intent
element of
making
highly questionable
it
whether
the
argu-
a
issue in the case. We find the State’s
was material
or
is
relevant
to show motive
intent
ment this evidence was
asserting
of
com-
merely
cleverly disguised way
Petitioner
a
has
commit
crimes because he
a
to
propensity
mitted the
Stokes,
Equally
of the
See
v.
part
gestae.
dence was admissible as
res
State
(1997) (“One
Hough,
accepted
the
arises
admissibility
the
of evidence of other crimes
bases for
plan argument patently
We
without
the
scheme or
find
common
allegation
absolutely
was
molested another
merit. There
no
Petitioner
argument
person.
unpersuasive
find
the
the evidеnce
We also
State’s
testimony
expert
was
because it corroborated the
witness’s
admissible
expert testimony
the
regarding pedophile characteristics. While both
theory
prove the
Petitioner was a
evidence tended to
State’s
the
pedophile,
did
is
the latter
not corroborate the former. "Corroborate”
credibility
strengthen;
weight
thing by
to
to add
or
a
defined as ”[t]o
"Corroborating
confirming
evi-
facts or evidence.”
additional
"[ejvidence supplementary
already given
dence”
defined as
to
is
tending
strengthen
confirm
evidence of a
to
or
it. Additional
(6th
point."
Dictionary
to
Black’s Law
different character
the same
added).
1990) (emphasis
ed.
describing general pedophilе
expert’s testimony
The
was limited
was
evidence
to whether Petitioner
characteristics. The contested
went
by
point
expert. The contested
pedophile,
a
never addressed
expert’s
corroborated
unless
evidence would
have
expert
pedophile.
thought
she
Petitioner
testified
when
part
such evidence furnishes
of the context of the crime
case”).
or
necessary
presentation
to a full
findWe
was not necessary
picture
provide
complete
of the crime or the
context which it occurred.
See
Lachterman,
767 (Mo.Ct.App.1991),
S.W.2d
overruled
Bernard,
(Mo.1993)
on other
grounds, State
defendant the admission of evidence of bad prior acts allegedly he committed with the victim. The New Hamp- Supreme shire Court noted that in analyzing whether evidence 404(b),15 is relevant under it “must Rule tend to prove an disprove actually issue in dispute, upon without relying character, predisposition, or propensi- forbidden inferences of toords, ty. In other no link in the chain of inferences justifying relevance can be from, prior derived conduct’s *11 to show tendency disposition.” character Id. 678 A.2d at (internal omitted) 149 citations (emphasis supplied). rejected first the argument Melcher the evidence was rele- vant to show common scheme or plan, stating, prior “For sеxual misconduct to relevant be to show that the defendant dependence had a the mutual plan, prior between the conduct charged and the act still must be divorced from any actual or on implicit reliance the defendant’s character.” Id. at 150. It rejected then the the argument evidence was relevant to show (i.e. ”), the in context which the crime occurred gestae “res term finding “merely the “context” to be synonym propensity.” from
To infer this ... an of how understanding [evidence] occurred, act charged necessarily the could have we must that the of assume defendant acted on the occasion conduct; conformity act in with this charged prior his inescapable charged is link between “assumption When, manner, in uncharged assump- crimes.” this an upon tion based the defendant’s certain propensity toward 404(b) Hampshire substantially 15. Rule of the New Rules Evidence is of 7, 404(b), supra general SCRE note contains the similar to see same exceptions Lyle. enunciated in 14 in the chain inferential
action is the essential connection
relevance, the
is inadmissible....
evidence
supporting
(internal
omitted).
appli-
this reasoning
We find
Id.
citations
to show the “context”
is
relevant
only
cable here:
the evidence
made that Petitioner
assumption
of the crime when
of
being
pedo-
trait
conformity
in
with
character
acting
cleverly disguised
another
argument
is but
Again,
phile.
evidence before
impеrmissible
of
character
way
getting
jury.16
evidence,
propensity
states
spite
ban on character or
some
of the
collateral sexual crimes or
admitted evidence of
have nonetheless
cases, carving
specific
they
exceptions
out
bad acts in sex offense
instinct,”
variously
disposition,” "depraved sexual
or the
"lustful
term
Roscoe,
484,
banc),
(en
910
e.g.,
See.
184 Ariz.
P.2d 635
like.
-
-,
150,
(1996)
denied,
“A
corollary
presumption
to
innocence
did,
is that a
for
defendant must be tried
what he
not for who
Melcher,
he is.”
Petitioner post-arrest statements he made to police erroneously were admitted into agree.17 evidence. We trial,
At Sergeant Belk when testified he and Detective Petitioner, Frazier went to interview he requested that Ser- geant Belk come back another time without Detective Frazier because he was uncomfortable around adult women. When alone, Belk came back later Petitioner told him he had fanta- sies about children. Detective Frazier to essentially testified thing. the same No written statement was admitted into evidence. trial judge objection The overruled Petitioner’s any testimony “concerning fantasies or or any likes dislikes of females.”
Generally, only
parts
those
confession or state
ment
police
made to
which
relevant
are
and material to the
crime charged should be
into
received
evidence. State v.
Gamble,
(1966),
jaded” society’s willingness occur. believе offenses it prior only held evidence of sexual misconduct would be admissible if it "Lv/e”-type fit into exceptions prohib- one of the under the rule iting such evidence. issue, Appeals although 17. The Court of did not rule on this it was Appellant argued petition raised it rehearing. to them in his *13 we find Petitioner’s sexual attitudes were not relevant or material to the charged crime they because were admitted See, to show e.g., State, character. Stevens v. 748 P.2d (Alaska (error, Ct.App.1988) in trial for attempted sexual minor, abuse admitting defendant’s police statements to his regarding sexual fantasies about homosexuality and chil “relevant, dren all, because it was if at only to show [defen crime”); propensity State, dant’s] to commit a sex Erickson denied, So.2d 330-31 (Fla.Dist.Ct.App.1990), cert. (Fla.1991) (error So.2d 286 in admitting defendant’s state psychiatrist ments to regarding sexual fantasies about female children). Therefore, the judge committed error allowing jury to hear these statements. reasons,
For foregoing we find it was error to admit the above evidence and testimony.18 The opinion Court of Appeals affirming Petitioner’s conviction is therefore reversed and the case is hereby remanded for a new trial. AND
REVERSED REMANDED. BURNETT, J., Jr., GEORGE T. GREGORY and THOMAS Jr., W. COOPER Acting Justices, Associate concur. MOORE, C.J., Acting dissenting in separate opinion. MOORE, Acting Chief Justice: I respectfully dissent. I would affirm petitioner’s convic- tions.
Unlike
majority,
I would not summarily reject
State’s argument
that consideration of the admission of the
evidеnce is procedurally barred.
I would hold petitioner did
preserve
objections
his
to the items introduced into evi-
dence. The majority
Ross,
relies upon
State v.
272 S.C.
(1978),
During petitioner in majority opinion homemade described the videotapes objection by stating the trial overruled he judge petitioner’s subject tapes was to allow the of theses to be men- “going object- Petitioner also introducing tapes.” tioned without the to a album from of photo containing pictures magazines ed suits, underwear, in young girls, bathing some dressed Further, objected to gymnastic petitioner clothes. the state- ments which he to police.1 made the
Petitioner, however, object did not to the introduction of his containing Punky membership, wallet his Brewster fan club of which in photograph Punky displayed Brewster had been room, his found in photographs young girls and numerous testified, objection, his A also without police room. officer type that numerous other items of the same were seized which not into were introduced evidence.
Here, challenged goes to the same issue re garding petitioner’s character as the evidence admitted with objection. Sebasky, (Minn.App. out 547 N.W.2d 1996) (although organization advocating bulletins from relationships boys between men and should not have been admitted, prejudiced sexually defendant was not when other dildos; and e.g. magazines; related homosexual evidence — introduced). of homosexuals—was sexually explicit four videos videotapes, I would admission of the Accordingly, hold the album, they his was harmless because photo statements cumulative to other evidence admitted without merely are Rochester, objection. State v.
(1990).
Further, much damning own is more petitioner’s “Pedophile” by than the evidence introduced State. Fairy Complete objected the introduction of the Grimm’s 1. Petitioner to Thus, objection preserved. stating any ground. is not Tales without particular ground objection specify on "A which does preserve question for objection insufficient which the is based is (1969) (trial Bailey, review.” State overruling general objection). judge commits no error majority in the as opinion defined someone who has a “sexual in which are perversion object.” children sex preferred own testimony Petitioner’s establishes he is а pedophile. examination Petitioner on testified direct he had told the stated, he likes police young girls. “My officers He further girls and, intention was to that I like say young yes, Amber I possibly could be one those. didn’t mention that Amber one of I those. said—I told him I him telling when was my were, about tapes pictures where and these I was telling ” young him that I do like girls. my That’s problem.... to the which Referring videotapes possessed, he petitioner stated subject tapes that were young girls ranging age up from about 8 or 9 or 23. He further he stated not like 18 year-old-girls did he because considered that grownup. examination,
On direct he also you get *15 testified “when five, old, down to around four or years three you kind of have So, to force yourself to fantasize about them. you don’t even often____” fantasize about them When asked on direct exam- ination if had any thoughts Amber, he doing anything to he “No. I tried replied: one time. I A started one time. thought I my come into mind and going go was to let it like I time, any do other but the first that thing my came into mind face, was her mother’s and there no more to it....” cross-examination, On the solicitor petitioner asked about a videotape he had introduced of his bedroom. Petitioner stated pictures of girls” Punky his “the little and Brewster were missing. He then elaborated and stated picture one young girl displayed was not in the tape he used it for Later, “sexual and his purposes” “sexual desire [her].” during cross-examination he admitted that the album was for fact, fantasies. he “almost percent admitted everything [Punky besides far as pictures Brewster] as theses that things, is sexual.” He only stated the Grimm’s Complete Fairy Tales book and the “Save the Children” advertisement were accidental coincidental. petitioner objected
I also note never to the expert witness’s testimony regarding a pedophile. characteristics of Further, there was additional evidence about be- petitioner’s introduced, havior objection, without which when looked at was a testimony implied petitioner with the along expert’s objection without Amber’s mother testified pedophile. including candy, an gave gifts, Amber numerous petitioner animals, box, umbrella, stuffed nightgown, a lunch cartoon tapes. I would affirm.
Accordingly, COMPANY, INC., Petitioner, RAY BELL CONSTRUCTION The COUNTY and SCHOOL DISTRICT OF GREENVILLE Inc., Company, Respondents.
M.B. Kahn Construction No. 24790.
Supreme Court of South Carolina.
Heard March 1998. May Decided