State v. Lee

732 S.E.2d 225, 399 S.C. 521, 2012 S.C. App. LEXIS 234
Court of Appeals of South Carolina·Decided August 22, 2012·No. Appellate Case No. 2009-147706; No. 5026·Published·Cited by 22 cases

Opinion

LOCKEMY, J.

In this criminal action, Glenn R. Lee contends the trial court made many evidentiary errors throughout the trial. Specifically, Lee argues the trial court erred in: (1) admitting testimony concerning Lee’s alleged prior bad acts; (2) admitting a videotape and transcript of an interview with Victim and [525] testimony concerning the statements made in that interview; (3) qualifying a witness as an expert in forensic interview and assessment and delayed reporting; (4) denying a motion to suppress all evidence seized in the search of Lee’s residence and all fruits of that search; (5) admitting evidence of alleged flight by Lee and his co-defendant (Donna Buie); (6) admitting evidence concerning involvement of the Department of Social Services (DSS); and (7) admitting photographs depicting nudity. In the alternative, Lee contends this case should be reversed and remanded because of cumulative error resulting in prejudice to him and a denial of his right to a fair trial. We reverse and remand.

FACTS

Lee was indicted in Darlington County in 2009 on charges of criminal sexual conduct (CSC) with a minor under the age of eleven years, committing or attempting to commit a lewd act upon a child under the age of sixteen years, and two counts of unlawful conduct toward a child. Buie, the mother of Victim, was also charged with two counts of unlawful conduct toward a child.

Lee’s charges stem from allegations by Victim, first reported to law enforcement on November 12, 2007. Victim lived in the home of Lee, with Buie, her younger brother, and Lee, until July 7, 2007, when she left to live with her father. Victim alleged that while she was living in Lee’s home, Lee touched her “lower private part” and penetrated her with his finger and made her touch his “lower private” as well. Victim also alleged she saw Lee and Buie engage in sexual activity with each other and with other individuals, and observed both Buie and Lee engage in drug activity in the home. Further, she alleged she watched pornographic material on television with Lee.

Arrest warrants were issued for Buie and Lee on January 23, 2008, and the U.S. Marshals’ (Marshals) services were employed on January 26. At the pre-trial hearing, Stuart Cottingham, a member of the Marshals, testified Lee was found in Sumter, South Carolina, on February 6, 2008. The Marshals located Buie in Clarendon County living in a camper.

Lee and Buie were tried by a jury the week of October 25, 2009. During the trial, the State proffered twenty-five graph[526] ic images recovered from a digital camera. However, they requested that only two of the photographs, Exhibits 149 and 150, be published to the jury. The two photographs were taken on February 6, 2008, in the camper where Marshals located Buie. The State argued the photographs portrayed an ongoing course of conduct directly related to Victim’s testimony of events as alleged in the indictment, which states Lee participated in sexual activity in the presence of Victim. Lee argued the conduct depicted in the photographs was not relevant on any issue regarding the children or the elements of the indictment. Further, he maintained the evidence was unduly prejudicial. The trial court admitted the two photographs over his objection, stating it found the evidence probative because it corroborated the testimony of the Victim as to what events were occurring in the home. Further, the trial court found the State lessened the prejudicial effect of all the digital camera’s contents by selecting only two photographs.

Lee was found guilty of all four charges and sentenced to concurrent terms of thirty years for the CSC offense, fifteen years for the lewd act offense, and ten years each for the unlawful conduct offenses. Lee moved for a new trial based on multiple alleged evidentiary issues, and the trial court denied his motion. This appeal followed.

STANDARD OF REVIEW

“ ‘In criminal cases, the appellate court sits to review errors of law only.’ ” State v. Kirton, 381 S.C. 7, 22, 671 S.E.2d 107, 114 (Ct.App.2008) (quoting State v. Preslar, 364 S.C. 466, 472, 613 S.E.2d 381, 384 (Ct.App.2005)). “ ‘This court is bound by the trial court’s factual findings unless they are clearly erroneous.’ ” Id. (quoting Preslar, 364 S.C. at 472, 613 S.E.2d at 384). “The appellate court does not re-evaluate the facts based on its own view of the evidence but simply determines whether the trial judge’s ruling is supported by any evidence.” Id. at 23, 671 S.E.2d at 114 (citing State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001); Preslar, 364 S.C. at 472, 613 S.E.2d at 384; State v. Mattison, 352 S.C. 577, 583, 575 S.E.2d 852, 855 (Ct.App.2003)).

“ ‘The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion.’ ” Id. [527] (quoting State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001)). “ ‘A court’s ruling on the admissibility of evidence will not be reversed by this Court absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant.’ ” Id. at 23, 671 S.E.2d at 115 (quoting State v. Hamilton, 344 S.C. 344, 353, 543 S.E.2d 586, 591 (Ct.App. 2001), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005)). “ ‘An abuse of discretion arises from an error of law or a factual conclusion that is without evidentiary support.’ ” Id. (quoting State v. Irick, 344 S.C. 460, 464, 545 S.E.2d 282, 284 (2001)).

“ ‘To show prejudice, there must be a reasonable probability that the jury’s verdict was influenced by the challenged evidence or the lack thereof.’ ” Kirton, 381 S.C. at 24, 671 S.E.2d at 115 (quoting State v. White, 372 S.C. 364, 374, 642 S.E.2d 607, 611 (Ct.App.2007)). “ ‘Error is harmless when it could not reasonably have affected the result of the trial.’ ” Id. (quoting State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985)).

LAW/ANALYSIS

Admission of Sexually Graphic Photographs

Lee contends the trial court erred in admitting Exhibits 149 and 150 into evidence. Specifically, Lee argues these pictures were taken seven to eight months after the last alleged incident; thus, they were irrelevant, had no connection to the children or the crimes charged, and were unduly prejudicial. We find the trial court erred in the admission of the challenged photographs because of their unduly prejudicial nature.

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State v. Lee, 732 S.E.2d 225, 399 S.C. 521, 2012 S.C. App. LEXIS 234 (S.C. Ct. App. 2012).

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