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Perry and Mother had two sets of twins: Daughter One and Daughter Two born in 1994 and Daughter Three and Son born in 1996. 2003) (“Remoteness in time, however, is not dispositive.”); see also Scott, 405 S. After Mother and Perry separated in August 2000, they agreed Perry would have visitation with the children on weekends and holidays. Mother later contacted the Department of Social Services (DSS) to report the abuse, and DSS reported the incident to the Greenville Police Department. As noted above, the only information in the record about Perry and Newcomer engaging in sexual intercourse came from the solicitor during a discussion with the trial court before the proffer; Newcomer never explicitly testified intercourse occurred. Perry also contends the prior bad act testimony was inadmissible under Rule 403 because there was an issue regarding whether the prior bad act actually occurred.
Attorney General Alan Mc Crory Wilson and Assistant Attorney General Vann Henry Gunter, Jr., both of Columbia; and Solicitor William Walter Wilkins, III, of Greenville, for Respondent. Furthermore, the similarities between the prior bad act and the charged crimes outweigh the dissimilarities, and the dissimilarities do not result in the danger of unfair prejudice substantially outweighing the probative value. E.2d at 244 (stating “[t]he admission or exclusion of evidence is left to the sound discretion of the trial [court],” and the court's “decision will not be reversed on appeal absent an abuse of discretion”). Improperly Commenting on Veracity of Testimony Perry argues the trial court erred in finding Dr.
When the court inquired whether DSS had any records of Perry's abuse of Newcomer, the State said it had some records that indicated the allegations were investigated. Our supreme court applied the above factors in Wallace and found that because of the close degree of similarity between the abuse suffered by both the victim of the charged offense and her sister, the sister's testimony about the prior bad act was admissible under Rule 404(b). Regardless of whether the abuse began when Daughter Two was five or seven, her abuse began at an earlier age than the abuse of Newcomer and Daughter Three.
However, the State noted Perry was not tried for the charges of abuse against Newcomer because, at the time, Newcomer was pregnant, she suffered from some mental health issues, and there were concerns that the defense would characterize her as sexually promiscuous. In cases involving sexual abuse, the trial court should consider the following non-exhaustive list of factors when determining whether there is a close degree of similarity between the prior bad act and the charged crime: “(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.” Id. However, we find this factor still amounts to a similarity in light of the fact that the abuse of all three victims primarily occurred during the victims' preteen and early teenage years.
Daughter Two When asked about the first time Perry abused her, Daughter Two stated she was lying on Perry's bed watching television when he entered the room, lay down next to her, and digitally penetrated her vagina. “[W]e do not review a trial [court's] ruling on the admissibility of other bad acts by determining de novo whether the evidence rises to the level of clear and convincing.” State v. During a discussion with the trial court before the proffer, the solicitor noted that unlike with Daughter Two and Daughter Three, Perry's abuse of Newcomer “progress[ed] on into actual vaginal/penile penetration.” The solicitor acknowledged that portion of Newcomer's account of the abuse would “not be admissible because it [went] beyond the scope of similar” and could be excluded by the court pursuant to Wallace. Although Newcomer's proffered testimony regarding the abuse progressing and the penetration starting could have been a reference to sexual intercourse, it is not clear from her testimony whether sexual intercourse occurred. However, even assuming arguendo that sexual intercourse occurred and can be considered by this court, it was permissible for the trial court to redact any dissimilar portions of Newcomer's testimony in light of all of the existing similarities.
According to Daughter Two, Perry stated that if she told anyone about what had happened, she “would get in just as much trouble as he would” and would be taken away from Mother. During the proffer, Newcomer testified that Perry had digitally penetrated her numerous times and then stated the abuse progressed when she was thirteen or fourteen. Because the only information in the record about Perry and Newcomer engaging in sexual intercourse came from the solicitor, this court cannot consider that information when determining whether Newcomer's testimony was admissible under Rule 404(b).
During the trial, Daughter Three testified that after Mother and Perry separated, Perry moved into a three-bedroom apartment and she shared a room and an air mattress with Daughter One and Daughter Two. Focusing on the contents of the witness's testimony, our supreme court found the testimony amounted to “evidence of a prior drug transaction” and determined the issue of the witness's credibility was for the jury's consideration. Here, the trial court found there was clear and convincing evidence that the prior bad act had occurred. “When determining whether evidence is admissible as [part of a] common scheme or plan, the trial court must analyze the similarities and dissimilarities between the crime charged and the bad act evidence to determine whether there is a close degree of similarity.” Wallace, 384 S. The abuse also occurred at night or early in the morning when the victims were in bed. Rule 403 states, in pertinent part, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ․” “[E]ven though we have already considered, pursuant to Rule 404(b), whether the similarities outweighed the dissimilarities, we must now reconsider the similarities and dissimilarities, as well as temporal remoteness and other factors, pursuant to Rule 403 ․” Scott, 405 S.