S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State of South
Carolina, Respondent,
v.
Larry Don Nelson, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Lexington County
Julius H. Baggett, Judge
Opinion No. 24778
Heard October 22, 1997 - Filed April 6, 1998
REVERSED AND REMANDED
Jack B. Swerling, of Columbia, for petitioner.
Charles Molony Condon, Attorney General, John
W. McIntosh, Deputy Attorney General, Donald J.
Zelenka, Assistant Deputy Attorney General,
William Edgar Salter, III, Senior Assistant
Attorney General, all of Columbia; and Donald V.
Myers, Solicitor, Eleventh Judicial Circuit, of
Lexington, for respondent.
WALLER, A.J.: Petitioner Larry Don Nelson was convicted of
p.13
STATE v. NELSON
four counts of first degree criminal sexual conduct ("CSC") with a minor, and
four counts of lewd act on a minor. The victim was a three year old child.
The offenses allegedly occurred between December 1991 and June 1992, when
the victim would accompany her father to Petitioner's home (to visit
Petitioner's brother, with whom Petitioner lived). All of the offenses allegedly
occurred in Petitioner's bedroom.
Petitioner was sentenced to thirty years imprisonment for each count
of CSC, and to ten years imprisonment for each count of lewd act. The
sentences were ordered to run consecutively. The Court of Appeals affirmed
Petitioner's conviction. State v. Nelson, 322 S.C. 377, 471 S.E.2d 767 (Ct.
App. 1996). This Court granted certiorari to consider whether certain
evidence was properly admitted at trial. We find it was not, reverse
Petitioner's convictions, and remand for a new trial.
ISSUES
I. Did the trial court err in admitting certain physical evidence found in
Petitioner's bedroom?
II. Did the trial court err in admitting details of post-arrest statements
Petitioner made to police?
DISCUSSION
I. Physical Evidence
At trial, the State introduced the following evidence, consisting of
exhibits or testimony about exhibits seized from Petitioner's bedroom after his
arrest1 :
(1) Two stuffed animals, "Cookie Monster" and "Oscar the
Grouch."
(2) Testimony about some fifty-eight homemade videotapes
containing various segments taped from television
programs, including a school district's schedule of events,
"Mr. Knozit" shows, children's aerobics, cartoons, children's
1 Petitioner gave police written consent to search his residence.
p.14
STATE v. NELSON
game shows, young girls' Olympic gymnastic events, and a
"just say no"-type show teaching children about molestation.
(3) Excerpts from Grimm's Complete Fairy Tales, specifically
"The Fitcher's Bird Tale," a story about a wizard who takes
young girls from their homes (parts of which had been
underlined). Attached to the front page was a laminated
picture of a young, three to four year-old white child with
long brown hair.2 Inserted in the book elsewhere were
pictures of "Save the Children" advertisements about young
female children with brown hair. On the back of one of
these advertisements was an article entitled "Modern Day
Monsters," the subject of which was child molestation.
(4) A photo album containing a collage of magazine pictures of
young girls dressed variously in gymnastic clothes,
underwear, bathing suits, and full clothing.
(5) Petitioner's wallet, containing his driver's license (showing
his DOB as 1/4/50), a "punch-out label" containing Punky
Brewster's name, and Petitioner's membership card to the
official Punky Brewster fan club.3
(6) A picture frame containing a commercial picture of a young
white female with long brown hair, dressed in gymnastic
clothing.
(7) A laminated picture of a young white female with shoulder-
length brown hair, lying on a couch.
(8) A laminated picture on a card of a young white female with
long brown hair, wearing night clothing, apparently cut
from a magazine advertising circular.
(9) A picture frame containing two laminated pictures of the
same young white girl, apparently cut from a magazine
2 Testimony was introduced that this and other photos resembled the
victim.
3 Punky Brewster is a child celebrity, a young white female with long
brown hair.
p.15
STATE v. NELSON
advertisement, with long brown hair.
(10) One of six offered pictures of Punky Brewster.4
Petitioner argued the evidence was improper character evidence and should
be excluded.
While initially, during a motion in limine hearing, the judge thought
the offer of evidence was "ludicrous," he changed his mind after the State put
up the testimony of an expert on sexual trauma and abuse of children. In
part, this witness testified about general characteristics of pedophiles.5 She
testified pedophiles often have fantasies about taking children away from
other adults. She also testified pedophiles often "have a pretty good stash"
of childlike items, including videotapes, children's books, children's clothing,
children's toys, photographs, drawings, and pictures, in part used for sexual
gratification. When the State then moved to introduce the physical evidence
later in the trial, the judge overruled Petitioner's argument it was improper
character evidence, finding it was probative not of a "character issue" but of
a "personality characteristic."
The Court of Appeals affirmed the admission of evidence, holding that
"[w]hether or not the evidence in question incidentally reflected poorly on
[Petitioner's] character, it was relevant to show [Petitioner's] motive to
commit the crimes for which he was charged." 322 S.C. at 381, 471 S.E.2d
at 769. It then found the probative value of the evidence outweighed any
danger of unfair prejudice from its admission. Id. at 382, 471 S.E.2d at 770.
Petitioner argues error in this holding. We agree.6
4 The Court of Appeals recited a slightly different list of evidence than
this. See Nelson, 322 S.C. at 380, 471 S.E.2d at 769. Apparently, that Court
made its list from what the State contended it would introduce at the motion
in limine hearing, not what was actually introduced at trial.
5 The expert testified pedophile means "love of children." Pedophilia has
been defined as "sexual perversion in which children are the preferred sex
object." Dyer v. Commonwealth, 816 S.W.2d 647, 650 n.1 (Ky. 1991) (quoting
Webster's Ninth New Collegiate Dictionary (1983 ed.)).
6 Considering that the ultimate goal behind preservation of error rules
is to insure that an issue raised on appeal has first been addressed to and
ruled on by the trial court, we reject the State's argument that consideration
of this issue is procedurally barred under the facts of this case. Cf. State v.
p.16
STATE v. NELSON
In a criminal case, the State cannot attack the character of the
defendant unless the defendant first places his character in issue. Mitchell
v. State, 298 S.C. 186, 379 S.E.2d 123 (1989) (per curiam). In a similar vein,
evidence of other crimes or bad acts is generally inadmissible to prove the
crime charged unless the evidence tends to establish (1) motive, (2) intent,
(3) absence of mistake or accident, (4) a common scheme or plan, or (5)
identity. State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983); State v. Lyle,
125 S.C. 406, 118 S.E. 803 (1923).7 Both rules are grounded on the policy
that character evidence is not admissible "for purposes of proving that the
accused possesses a criminal character or has a propensity to commit the
crime with which he is charged." State v. Peake, 302 S.C. 378, 380, 396
S.E.2d 362, 363 (1990).
We find the evidence clearly inadmissible under these standards. As
the trial judge himself recognized, its only relevance is as it reflects on an
aspect of Petitioner's character, i.e. that he is a pedophile.8 We find the
Ross, 272 S.C. 56, 249 S.E.2d 159 (1978) (once the court rules on an objection
to a line of questioning, it is not necessary that counsel repeat the objection
after each question).
7 The substance of these common law rules has now been codified in
SCRE 404 (not in effect at the time of Petitioner's trial):
(a) Character evidence generally. Evidence of a person's
character or a trait of character is not admissible for the purpose
of proving action in conformity therewith on a particular occasion,
except: [exceptions not pertinent here].
(b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible to show motive, identity, the existence of
a common scheme or plan, the absence of mistake or accident, or
intent.
8 In admitting the evidence, the judge stated:
I don't think it has anything to do with impugning his character
at all. It's not a character issue. It's a personality characteristic
that is consistent with perhaps the testimony of the [expert
witness] as to the profile of what is referred to as a pedophile,
p.17
STATE v. NELSON
distinction between "character" and "personality characteristic" misplaced.
"The term 'character' refers to a generalized description of a person's
disposition or a general trait such as honesty, temperance or peacefulness.
Generally speaking, character refers to an aspect of an individual's
personality which is usually described in evidentiary law as a 'propensity.'"
State v. Smith, 617 N.E.2d 1160, 1169 (Ohio Ct. App. 1992), cert. denied, 612
N.E.2d 1244 (Ohio 1993) (internal quotation omitted) (finding testimony
regarding pedophile characteristics probative of the issue of character). See
also Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 4.11
(1995) (as used in federal rules, "character" means "a person's disposition or
propensity to engage or not engage in various forms of conduct"). Such
evidence could only invite the jury to infer Petitioner was acting in
conformity with this character trait when he committed the crimes with
which he was charged. Because this is an improper basis upon which to
determine guilt, the evidence should not have been admitted. See, e.g.,
Underwood v. State, 309 S.C. 560, 563-64, 425 S.E.2d 20, 23 (1992) (expert
testimony regarding "common profile" of people who sexually abuse children
admissible because it was offered to explain physical injuries of victim as
opposed to "personality or character traits which petitioner possessed in order
to identify him as the offender").
Several states have rejected testimony or evidence showing a defendant
is a pedophile for this exact reason. See, e.g., Turtle v. State, 600 So. 2d
1214, 1221 (Fla. Dist. Ct. App. 1992) (error in admitting expert testimony
about characteristics of pedophile because it was asking "the jury to convict
because the defendant fit a pedophile profile"); Francis v. State, 512 So. 2d
280, 282 (Fla. Dist. Ct. App. 1987) (error in admitting expert testimony that
defendant has a "personality characteristic of being attracted to children");
State v. Hester, 760 P.2d 27 (Idaho 1988) (error in admitting expert
testimony that defendant had character traits consistent with those of known
child abusers); People v. Bagarozy, 522 N.Y.S.2d 848, 853 (N.Y. App. Div.
1987) (error in admitting evidence seized from defendant's apartment
including NAMBLA9 newsletters, photographs, and films because "the true
purpose behind the introduction of this evidence was to expose defendant's
sexual preferences and attitudes in order to demonstrate a propensity to
commit the crimes charged"); Smith, 617 N.E.2d at 1160 (error in admitting
which appears to be consistent with the charges and the facts
here.
9 North American Man-Boy Love Association, which advocates sexual
activity between adults and boys.
p.18
STATE v. NELSON
expert testimony on general pedophile characteristics); Brewington v. State,
802 S.W.2d 691, 692 (Tex. Crim. App. 1991) (en banc) (reversing conviction
because "it is clear from the record that the prosecutor sought to introduce
testimony that appellant was a fixated pedophile solely to prove appellant's
propensity to molest children and that he acted in conformity therewith when
he committed the charged offense").
In Dyer, the Supreme Court of Kentucky addressed a factual scenario
very similar to the case sub judice. 816 S.W.2d 647. The defendant was on
trial for sodomizing a child under the age of twelve. The state introduced
evidence seized from the defendant's apartment, including old posters of
former teenage idols, nude pictures and articles from pornographic magazines,
a pamphlet about homosexual activity, pictures of boys cut from newspapers,
and other publications. The police officer describing the seized evidence was
allowed to testify about general pedophile characteristics, and to state that
in the search of defendant's house he was looking for any evidence that
would "relate to, ah, possible characteristics of a pedophile." Id. at 650. In
reversing defendant's conviction, the court stated:
It is obvious the real purpose, the sole purpose, of this evidence
was, in general, to prove the appellant was a sexual pervert, and,
in particular, to prove that his perversion was pedophilia, and to
do so on the basis of reading material found in his possession
some of which would offend a substantial number of jurors,
prejudicing them against the appellant without regard to whether
it proved anything against him. The various pornographic
pictures and articles and the nondescript photographs and
memorabilia were devoid of meaning except that provided by the
investigating police officer's testimony and the prosecutor's
argument labeling the material seized proof that the appellant
was a pedophile.
We declare, unqualifiedly, that citizens and residents of Kentucky
are not subject to criminal conviction based upon the contents of
their bookcase unless and until there is evidence linking it to the
crime charged. . . . If this material is supposed to provide a
picture of the appellant as a pedophile, such profile evidence is
inadmissible in criminal cases to prove either guilt or innocence.
p.19
STATE v. NELSON
Id. at 652.10
The State argues the evidence was not offered to show Petitioner's
character, but was instead admissible under Lyle to show motive, intent, and
a common scheme or plan. We disagree, finding little to no probative value
regarding any of these theories.11 Furthermore, the very apparent prejudicial
10 We have found no cases in South Carolina directly addressing the
issue involved here. Most cases even remotely similar concern the admission
of a defendant's prior sexual offenses or misconduct, as opposed to physical
evidence showing sexual preferences or tendencies, usually analyzed under
the "common scheme or plan" exception in Lyle. See, e.g., State v. Bell, 302
S.C. 18, 393 S.E.2d 364, cert. denied, 498 U.S. 881 (1990); State v. Rogers,
293 S.C. 505, 362 S.E.2d 7 (1987), overruled on other grounds, State v.
Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993); Stokes, 279 S.C. 191, 304
S.E.2d 814; State v. Rivers, 273 S.C. 75, 254 S.E.2d 299 (1979); State v.
Henry, 313 S.C. 106, 432 S.E.2d 489 (Ct. App. 1993); State v. Atkins, 309
S.C. 542) 424 S.E.2d 554 (Ct. App. 1992).
11 For the purposes of this discussion, we are assuming without so
deciding that this evidence invokes the Lyle analysis. Lyle is generally
thought of as involving evidence of a prior crime or bad act. While the
evidence introduced here connotes bad character, it is questionable whether
it is evidence of a prior "bad act." It certainly is not evidence of a prior
crime. This Court has applied Lyle to evidence not outwardly showing a
crime or bad act, but which connotes bad character. See, e.g., Mitchell v.
State, 298 S.C. 186, 379 S.E.2d 123 (1989) (applying Lyle rules to testimony
defendant was a Mafia member, as well as evidence found in defendant's
residence implying she was a devil worshiper, but which in itself was
innocuous: wax candles of little devils, devil figurines, surveillance cameras);
State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983) (applying Lyle to
evidence defendant offered victim money to "meet him at the railroad
tracks"). Other cases have described Lyle without referring to "bad acts."
See, e.g., State v. Rogers, 293 S.C. 505, 362 S.E.2d 7 (1987) ("Evidence of
prior acts is generally not admissible . . . ."); State v. Bright, 323 S.C. 221,
473 S.E.2d 851 (Ct. App. 1996) ("conviction must be based on proof of the
offense for which [defendant] is accused, rather than prior immoral acts").
In any event, even if Lyle were inapplicable, the evidence would still
fall under the more general rule against attacking a defendant's character.
See, e.g., Mitchell, 298 S.C. at 186, 379 S.E.2d at 123; State v. McElveen, 280
S.C. 325, 313 S.E.2d 298 (1984). Because we find the evidence would be
p.20
STATE v. NELSON
impact such evidence would have upon a jury outweighs what probative
value, if any, it may have. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146
(1991) (even relevant and otherwise admissible evidence may be excluded for
undue prejudice).
The Court of Appeals agreed with the State's argument regarding
motive, primarily relying on our decisions in State v. Bell, 302 S.C. 18, 393
S.E.2d 364 (1990), and State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991),
cert. denied, 503 U.S. 993 (1992). Both cases are distinguishable from the
instant case.
In Bell, we held tape recordings in which Bell discussed the details of
sexual experiences he had with a prior murder victim were properly admitted
as demonstrating a possible sexual motive for kidnaping the current victim.12
Bell was not on trial for a sex crime, and the evidence showed a possible
motive for a crime that could have been committed for any number of
reasons. The evidence also involved Bell's admitting he kidnaped and
murdered the first victim (the implication being he was similarly sexually
motivated in committing that crime).
Here, Petitioner was on trial for sexual offenses; there is little doubt
the motivation for such offenses is, at least in part, sexual gratification. In
Smith, the Ohio Court of Appeals rejected a similar argument that evidence
of other sexual misconduct was admissible to show motive in committing the
charged sex crime:
[T]he motive for the alleged crimes involved in the present case
[is] apparent. A person commits or attempts to commit [a sexual
offense] for the obvious motive of sexual gratification. Since
motive can not be deemed to have been a material issue at
inadmissible under either standard, the issue of whether this is evidence of
a prior bad act or merely reflects on his character is largely academic. A
more interesting issue would be whether the same exceptions noted in Lyle
would apply to the general character rule, and thus allow into admission
evidence attacking a person's character (but not evidence of a prior crime or
bad act) if the State can show it is not being offered as propensity evidence
but as probative to some other issue. Again, we need not reach this issue
here because we find this evidence inadmissible under the exceptions
advanced by the State.
12 We also found the evidence probative of a common scheme or plan.
p.21
STATE v. NELSON
[defendant's] trial, "other acts" testimony was not admissible to
prove this matter.
. . . While the acts of which the defendant was accused would
certainly be viewed as perverted and depraved according to most
views, the motive and intent of the alleged action remain,
nevertheless, those of sexual gratification. That fact is apparent
from the charges and is not a material issue. Evidence of other
crimes, wrongs, or acts may not be introduced to prove his motive
or intent in committing the operative acts of the offenses alleged.
617 N.E.2d at 1172-73 (internal citations omitted).13
Somewhat similar reasoning has been applied regarding the issue of
intent. "In the trial of sex offenses, extrinsic evidence of intent is admissible
only in those cases where there is no challenge to the occurrence of the
physical contact itself, but the intent of the actor is at issue because the
nature of the contact is subject to varying interpretations." Bagarozy, 522
N.Y.S.2d at 854 (finding intent not an issue in case where defendant
consistently denied any sexual contact with accusers). See also State v.
Tizard, 897 S.W.2d 732, 744 (Tenn. Crim. App. 1994) (evidence of sexually
explicit videotapes and booklet, found in defendant's home, not probative of
intent: "[T]o the extent that the ultimate inference sought to be drawn by
the state, i.e., the defendant's intent to commit a sexual battery upon the
victim, must be derived from initial inferences about the defendant's
character traits circumstantially drawn from the questioned evidence, such
evidence's probative value on the ultimate inference is greatly attenuated").
Cf. State v. Millar, 871 P.2d 482 (Ore. 1994) (evidence defendant possessed
pornographic magazine of young girls probative of intent where defendant
admitted placing hand down victim's pants but claimed his intent was to
retrieve a toy, not sexual contact).
Here, Petitioner denied any sexual contact with the victim, making it
13 Johnson is even more readily distinguishable. That case also involved
the admission of evidence of a prior murder. We held evidence the defendant
had murdered someone and hidden the body in the vehicle he was driving
tended to establish his motive for killing a state trooper who stopped him for
a driving violation. 306 S.C. at 125, 410 S.E.2d at 551. The evidence was
not admitted to show that because the defendant had killed before, he was
a "killer" and in shooting the state trooper was merely acting in conformity
with this characteristic.
p.22
STATE v. NELSON
highly questionable whether the element of intent was a material issue in the
case. We find the State's argument this evidence was relevant to show
motive or intent is merely a cleverly disguised way of asserting Petitioner
committed the crimes because he has a propensity to commit sexual offenses.
See Stokes, 279 S.C. at 193, 304 S.E.2d at 815 (judge's instruction that
evidence was being admitted to show the "inclination of the defendant to do
that" was erroneous because "the rationale for excluding evidence of prior
'bad acts' is to prevent the jury from considering an accused's inclinations
rather than his actual conduct in the incident before the court"). 14
Equally unpersuasive is the State's argument the evidence was
admissible as part of the res gestae. See State v. Hough, ____ S.C.____, 480
S.E.2d 77 (1997) ("One of the accepted bases for the admissibility of evidence
of other crimes arises when such evidence furnishes part of the context of the
crime or is necessary to a full presentation of the case"). We find this
evidence was not necessary to provide a complete picture of the crime or the
context in which it occurred. See State v. Lachterman, 812 S.W.2d 759, 767
(Mo. Ct. App. 1991), overruled on other grounds, State v. Bernard, 849
S.W.2d 10 (Mo. 1993) ("complete picture" exception "seldom has application
in child sexual abuse cases").
In State v. Melcher, 678 A.2d 146 (N.H. 1996), the defendant
challenged the admission of evidence of prior bad acts he allegedly committed
14 We find the common scheme or plan argument patently without merit.
There was absolutely no allegation Petitioner molested another person. We
also find unpersuasive the State's argument the evidence was admissible
because it corroborated the expert witness's testimony regarding pedophile
characteristics. While both the expert testimony and the evidence tended to
prove the State's theory Petitioner was a pedophile, the latter did not
corroborate the former. "Corroborate" is defined as "[t]o strengthen; to add
weight or credibility to a thing by additional and confirming facts or
evidence." "Corroborating evidence" is defined as "[e]vidence supplementary
to that already given and tending to strengthen or confirm it. Additional
evidence of a different character to the same point." Black's Law Dictionary
344 (6th ed. 1990) (emphasis added).
The expert's testimony was limited to describing general pedophile
characteristics. The contested evidence went to whether Petitioner was a
pedophile, a point never addressed by the expert. The contested evidence
would not have corroborated the expert's testimony unless the expert testified
she thought Petitioner was a pedophile.
p.23
STATE v. NELSON
with the victim. The New Hampshire Supreme Court noted that in analyzing
whether evidence is relevant under Rule 404(b), 15 it "must tend to prove or
disprove an issue actually in dispute, without relying upon forbidden
inferences of predisposition, character, or propensity. In other words, no link
in the chain of inferences justifying relevance can be derived from the prior
conduct's tendency to show character or disposition." Id. at 149 (internal
citations omitted) (emphasis supplied).
Melcher first rejected the argument the evidence was relevant to show
a common scheme or plan, stating, "For prior sexual misconduct to be
relevant to show that the defendant had a plan, the mutual dependence
between the prior conduct and the charged act still must be divorced from
any actual or implicit reliance on the defendant's character." Id. at 150. It
then rejected the argument the evidence was relevant to show the context in
which the crime occurred (i.e. "res gestae"), finding the term "context" to be
"merely a synonym for propensity."
To infer from this [evidence] . . . an understanding of how the
charged act could have occurred, we must necessarily assume
that the defendant acted on the occasion of the charged act in
conformity with his prior conduct; this "assumption is the
inescapable link between the charged and uncharged crimes."
When, in this manner, an assumption based upon the defendant's
propensity toward certain action is the essential connection in the
inferential chain supporting relevance, the evidence is
inadmissible. . . .
Id. (internal citations omitted). We find this reasoning applicable here: the
evidence is only relevant to show the "context" of the crime when the
assumption is made that Petitioner was acting in conformity with the
character trait of being a pedophile. Again, this argument is but another
cleverly disguised way of getting impermissible character evidence before the
jury.16
15 Rule 404(b) of the New Hampshire Rules of Evidence is substantially
similar to SCRE 404(b), see supra note 7, and contains the same general
exceptions enunciated in Lyle.
16 In spite of the ban on character or propensity evidence, some states
have nonetheless admitted evidence of collateral sexual crimes or sexual bad
acts in sex offense cases, carving out specific exceptions they variously term
"lustful disposition," "depraved sexual instinct," or the like. See, e.g., State
p.24
STATE v. NELSON
v. Roscoe, 910 P.2d 635 (Ariz.) (en banc), cert. denied, 117 S. Ct. 150 (1996)
(recognizing specific exception to general rule disallowing evidence of other
bad acts to show bad character when acts involve "sexual aberration" to show
propensity to commit a similar crime); Caldwell v. State, 436 S.E.2d 488, 492
(Ga. 1993) (allowing admission of four adult movies found in defendant's
apartment because it showed defendant's "bent of mind toward the sexual
activity with which he [is] charged and his lustful disposition," regardless of
whether it also incidentally reflected on character); State v. Chapman, 683
So. 2d 1236, 1240 (La. Ct. App. 1996), cert. denied, 700 So. 2d 505 (La. 1997)
(pornographic pictures of teenagers admissible to demonstrate defendant's
(unnatural interest in young females"); Mitchell v. State 539 So. 2d 1366
(Miss. 1989) (evidence of other sexual relations between defendant and victim
admissible to show lustful, lascivious disposition toward that particular
victim); Findley v. State, 577 P.2d 867, 868 (Nev. 1978) (admitting evidence
showing possession of "specific emotional propensity for sexual aberration");
State v. Reeder, 413 S.E.2d 580 (N.C. Ct. App.), cert. denied, 417 S.E.2d 68
(N.C. 1992) (evidence of prior sexual offenses admissible to show defendant's
unnatural lust, intent or state of mind"); State v. Edward Charles L., 398
S.E.2d 123 (W. Va. 1990) (evidence of collateral acts or crimes admissible in
child sexual abuse cases to show perpetrator had a lustful disposition).
South Carolina has not recognized such an exception, nor are we
inclined to do so. Other states have similarly resisted this urge to make
exception for one class of crimes. "Given the emotionally charged nature of
the crime, there exists a natural temptation to regard Rule 404(b) differently
when a defendant has been indicted for sexual assault.... But the fairness
and due process concerns underlying Rule 404(b) are no less pertinent in
sexual assault cases . . . ." Melcher, 678 A.2d at 149. See also Tizard, 897
S.W.2d at 744 (noting Tennessee's refusal to adopt a sex crime or acts
exception); State v. Bernard, 849 S.W.2d 10 (Mo. 1993) (en banc) (refusing to
adopt a "depraved sexual instincts" exception).
In Lannan v. State, the Supreme Court of Indiana decided to abandon
its "depraved sexual instinct" exception in favor of a more general analysis
under FRE 404(b). 600 N.E.2d 1334 (Ind. 1992) (noting approximately
twenty other states have or have had such exceptions). In doing so, it noted
the traditional rationale for this type of exception is twofold: (1) that "acts
showing a perverted sexual instinct are circumstances which . . . may have
a tendency to connect an accused with a crime of that character;" and (2) the
need to bolster victim testimony "which describe[s] acts which would
otherwise seem improbable standing alone." Id. at 1335. While assuming
p.25
STATE v. NELSON
"A necessary corollary to the presumption of innocence is that a
defendant must be tried for what he did, not for who he is." Melcher, 678
A.2d at 151. We hold the evidence in this case was inadmissible as improper
character evidence.
II. Police Statements
Petitioner argues post-arrest statements he made to police were
erroneously admitted into evidence. We agree. 17
At trial, Sergeant Belk testified when he and Detective Frazier went
to interview Petitioner, he requested that Sergeant Belk come back another
time without Detective Frazier because he was uncomfortable around adult
women. When Belk came back later alone, Petitioner told him he had
fantasies about children. Detective Frazier testified to essentially the same
thing. No written statement was admitted into evidence. The trial judge
overruled Petitioner's objection to any testimony "concerning any fantasies or
likes or dislikes of females."
Generally, only those parts of a confession or statement made to police
which are relevant and material to the crime charged should be received into
evidence. State v. Gamble, 247 S.C. 214, 146 S.E.2d 709 (1966), overruled
on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). For
the same reasons as discussed supra in Issue I, we find Petitioner's general
sexual attitudes were not relevant or material to the crime charged because
they were admitted to show character. See, e.g., Stevens v. State, 748 P.2d
771, 774 (Alaska Ct. App. 1988) (error, in trial for attempted sexual abuse
of a minor, in admitting defendant's statements to police regarding his sexual
fantasies about homosexuality and children because it was "relevant, if at all,
recidivism among sexual offenders may be high, it pointed out that equally
high was recidivism among, for example, drug offenders. Yet no exception
for character evidence was carved out for drug offenses. Further, it found the
need to bolster victim testimony not as great because of our current, "more
jaded" society's willingness to believe sexual offenses occur. Thus, it held
evidence of prior sexual misconduct would only be admissible if it fit into one
of the "Lyle"-type exceptions under the general rule prohibiting such evidence.
17 The Court of Appeals did not rule on this issue, although it was
raised to them and Appellant argued it in his petition for rehearing.
p.26
STATE v. NELSON
only to show [defendant's] propensity to commit a sex crime); Erickson v.
State, 565 So. 2d 328, 330-31 (Fla. Dist. Ct. App. 1990), cert. denied, 576 So.
2d 286 (Fla. 1991) (error in admitting defendant's statements to psychiatrist
regarding sexual fantasies about female children). Therefore, the judge
committed error in allowing the jury to hear these statements.
For the foregoing reasons, we find it was error to admit the above
evidence and testimony.18 The opinion of the Court of Appeals affirming
Petitioner's conviction is therefore reversed and the case is hereby remanded
for a new trial.
REVERSED AND REMANDED.
BURNETT, A.J., Acting Associate Justices George T. Gregory Jr.,
and Thomas W. Cooper Jr., concur. MOORE, A.C.J., dissenting
in separate opinion.
18 Under the circumstances of this case, we cannot find these errors
harmless beyond a reasonable doubt, as would be required in order to affirm
Petitioner's conviction. Whether the admission of this evidence subsequently
affected defendant's trial strategy and/or testimony is not for this Court to
opine. See e. g. State v. Smith, 309 S.C. 48, 419 S.E.2d 816 (1992); State v.
Singleton, 303 S.C. 313, 400 S.E.2d 487 (1991) (refusing to find error
harmless where there was not overwhelming evidence of guilt).
p.27
STATE v. NELSON
MOORE, A.C.J.: I respectfully dissent. I would affirm
petitioner's convictions.
Unlike the majority, I would not summarily reject the State's
argument that consideration of the admission of the evidence is
procedurally barred. I would hold petitioner did not preserve his
objections to the items introduced into evidence. The majority relies upon
State v. Ross 272 S.C. 56, 249 S.E.2d 159 (1978), which holds an objection
to a line of questioning is sufficient to object to a particular question. In
my opinion, the separate and distinct introduction of several items is
entirely different.
During trial, petitioner objected to the introduction of the
homemade videotapes described in the majority opinion and the trial judge
overruled petitioner's objection by stating he was "going to allow the
subject of theses tapes to be mentioned without introducing the tapes."
Petitioner also objected to a photo album containing pictures from
magazines of young girls, some dressed in bathing suits, underwear, and
gymnastic clothes. Further, petitioner objected to the statements which he
made to the police.1a
Petitioner, however, did not object to the introduction of his
wallet containing his Punky Brewster fan club membership, a photograph
of Punky Brewster which had been displayed in his room, and numerous
photographs of young girls found in his room. A police officer also
testified, without objection, that numerous other items of the same type
were seized which were not introduced into evidence.
Here, the challenged evidence goes to the same issue regarding
petitioner's character as the evidence admitted without objection. State v.
Sebasky, 547 N.W.2d 93 (Minn. 1996)(although bulletins from organization
advocating sexual relationships between men and boys should not have
been admitted, defendant was not prejudiced when other sexually related
evidence - e.g. homosexual magazines; dildos; and four sexually explicit
1a Petitioner objected to the introduction of the Grimm's Complete
Fairy Tales without stating any ground. Thus, this objection is not
preserved. "A general objection which does not specify the particular
ground on which the objection is based is insufficient to preserve a
question for review." State v. Bailey, 253 S.C. 304, 170 S.E.2d 376
(1969)(trial judge commits no error in overruling general objection).
p.28
STATE v. NELSON
videos of homosexuals - was introduced). Accordingly, I would hold the
admission of the videotapes, photo album, and his statements was
harmless because they are merely cumulative to other evidence admitted
without objection. State v. Rochester, 301 S.C. 196, 391 S.E.2d 244
(1990).
Further, petitioner's own testimony is much more damning
than the evidence introduced by the State. "Pedophile" is defined in the
majority opinion as someone who has a "sexual perversion in which
children are the preferred sex object." Petitioner's own testimony
establishes he is a pedophile.
Petitioner testified on direct examination he had told the police
officers he likes young girls. He further stated, "My intention was to say
that I like young girls and, yes, Amber could possibly be one of those. I
didn't mention that Amber was one of those. I said - - I told him when I
was telling him about where my tapes and these pictures were, I was
telling him that I do like young girls. That's my problem . . . ." Referring
to the videotapes which he possessed, petitioner stated that the subject of
the tapes were young girls ranging in age from about 8 or 9 up to 22 or
23. He further stated he did not like 18 year-old-girls because he
considered that grownup.
On direct examination, he also testified that "when you get
down to around four or five, three years old, you kind of have to force
yourself to fantasize about them. So, you don't even fantasize about them
often . . ." When asked on direct examination if he had any thoughts of
doing anything to Amber, he replied: "No. I tried one time. I started one
time. A thought come into my mind and I was going to let it go like I do
any other time, but the first thing that came into my mind was her
mother's face, and there was no more to it . . ."
On cross-examination, the solicitor asked petitioner about a
videotape he had introduced of his bedroom. Petitioner stated his pictures
of "the little girls" and Punky Brewster were missing. He then elaborated
and stated one picture of a young girl was not displayed in the tape and
he used it for "sexual purposes" and his "sexual desire for [her]." Later,
during cross-examination he admitted that the album was for sexual
fantasies. In fact, he admitted "almost 99 percent of everything besides
[Punky Brewster] as far as theses pictures and things, that is sexual." He
stated only the Grimm's Complete Fairy Tales book and the "Save the
Children" advertisement were accidental or coincidental.
p.29
STATE v. NELSON
I also note petitioner never objected to the expert witness's
testimony regarding the general characteristics of a pedophile. Further,
there was additional evidence about petitioner's behavior introduced,
without objection, which when looked at along with the expert's testimony
implied petitioner was a pedophile. Amber's mother testified without
objection that petitioner gave Amber numerous gifts, including candy, an
umbrella, a lunch box, a nightgown, stuffed animals, and cartoon tapes.
Accordingly, I would affirm.
p.30