State v. Nellis

• Court: Court of Appeals of South Carolina
• Decided: July 8, 2003
• Docket: 2003-UP-459
• Status: Unpublished

Opinion

STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Anthony Nellis, Jr.,        Appellant.

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Appeal From Dorchester County
Jackson V. Gregory, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-459
Heard April 9, 2003 – Filed July 8, 2003

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REVERSED

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Jennifer L. Queen, Kelly Knight Boyd, and Mark Alan Leiendecker, all of Summerville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.

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PER CURIAM:  Anthony Nellis, Jr., appeals his conviction for criminal sexual conduct (“CSC”) with a minor in the first degree, arguing the trial court erred by admitting evidence of prior bad acts in violation of Rule 404(b), SCRE.  We reverse.

FACTS/PROCEDURAL HISTORY

Nellis married the victim’s mother (“Mother”) in New Jersey in June, 1998.  At the time of the marriage the victim was seven years old.  Subsequently, Nellis, Mother, and the victim moved first to North Carolina, then to Georgia, and finally to South Carolina.

According to the victim, one afternoon in October 1999, Mother was working at the office of the apartment complex where the family lived.  While Nellis was in the family’s apartment, the victim entered the apartment to change into her swimsuit.  Nellis entered the victim’s room and vaginally penetrated the victim with his penis.  Following the assault, Nellis instructed the victim not to tell Mother.  A few days later, the victim went to the school nurse and complained of seeing blood while urinating.  The nurse gave the victim a sanitary napkin and called Mother to inform her the nurse thought the victim might have begun to menstruate.  Later, the victim told Mother Nellis had been having sex with her.

Nellis was indicted for CSC with a minor.  At trial, subject to Nellis’ objection, the victim testified Nellis vaginally penetrated her several times while the family lived in North Carolina, Georgia, and South Carolina.  She testified further that on each occasion Nellis instructed her not to tell Mother.  She testified some of the encounters occurred while Mother was home, while others occurred with Mother away from the home.  Also subject to Nellis’ objection, other witnesses offered similar, hearsay testimony based on information obtained from conversations they had with the victim prior trial.

Nellis was convicted of CSC with a minor and sentenced to sixteen years imprisonment.  Nellis appeals.

LAW/ANALYSIS

Nellis asserts the trial court erred in admitting the testimony, alleging prior bad acts in violation of 404(b), SCRE.  Nellis argues the prior bad acts were not so substantially similar to the charged offense to fall within the common scheme or plan exception.  We agree.

Evidence of an accused’s other acts is not admissible to prove the propensity of the accused to commit the crime charged.  Rule 404(b), SCRE.  However, evidence of prior bad acts may be admitted “to show . . . the existence of a common scheme or plan.”  Id.; see State v. Lyle, 125 S.C. 406, 416, 118 S.E. 803, 807 (1923).  For evidence to be admissible under the common scheme or plan exception, the “[t]he record must support a logical relevance between the prior bad act and the crime for which the defendant is accused.”  State v. Brooks, 341 S.C. 57, 61, 522 S.E.2d 325, 327 (2000).  Thus, the trial court should not admit the evidence if the court does not clearly perceive the connection between the prior bad act and the crime charged.  Id. at 61-62; 533 S.E.2d at 327-28.

Both this Court and our supreme court have addressed the admissibility of Lyle evidence in child sexual assault cases on numerous occasions.  In State v. McClellan, 283 S.C. 389, 323 S.E.2d 772 (1984), a father was tried for the sexual abuse on only one of his three daughters.  The trial court permitted all three daughters to testify regarding how their father abused them.  With each daughter, the father’s abuse began when the girl turned twelve.  He demanded they come to his bedroom, where he quoted the same Bible verse to each of them and informed them he was teaching them how to “be with their husbands.”  McClellan, 283 S.C. at 391, 323 S.E.2d at 773.  The McClellan court found no error with the admission of the other daughters’ testimony because the facts of the prior bad acts were substantially similar to the charged offense and showed the father’s common scheme and plan.  283 S.C. at 391, 323 S.E.2d at 773.

Similarly, in State v. Adams, 332 S.C. 139, 504 S.E.2d 124 (Ct. App. 1998), the defendant was charged with assault with intent to commit criminal sexual conduct against his step-daughter.  The trial court admitted evidence of the defendant’s prior sexual abuse of his other step-daughter.  This Court found no error in the trial court’s admission of the evidence because the abuse of both step-daughters occurred when the girls were approximately the same age, the defendant abused the victims in the same manner --- the defendant used his relationship as their step-father to control the victims --- the abuse of both victims began in a hammock, both victims were also attacked in the defendant’s truck, the defendant showed both victims pornographic movies, and the defendant picked the locks of both victims’ rooms to watch the victims dressing.  Id. at 142-42; 504 S.E.2d at 126.

After having reviewed the record, we find it difficult to clearly perceive the connection between the charged offense and Nellis’ prior acts of sexual misconduct.  Specifically, the testimony regarding Nellis’ prior sexual assaults does not establish the existence of a substantial similarity with the sexual assault for which he is currently charged.  See State v. Tutton, 354 S.C. 319, ___, 580 S.E.2d 186, 191, 194 (Ct. App. 2003) (holding “there must be evidence that the defendant employed a common scheme or plan in the commission of the [sex] crimes”).

The victim testified Nellis assaulted her on several occasions, in various rooms of the home, and in multiple geographic locations.  Some acts were performed while Mother was home, while other acts were performed while Mother was away from the home.  The other witnesses who testified simply reiterated hearsay testimony almost identical to that offered by the victim.

Based on this limited testimony, the record lacks sufficient detail from which this Court could “‘clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy[; thus,] the accused should be given the benefit of the doubt and the evidence should be rejected.’”  See State v. Berry, 332 S.C. 214, 219, 503 S.E.2d 770, 773 (Ct. App. 1998) (quoting Lyle, 125 S.C. at 417, 118 S.E. at 807).  Therefore, we conclude the trial court erred in admitting the testimony of Nellis’ prior bad acts.

Furthermore, we think it clear Nellis suffered prejudice as a result of the admission of this testimony.  See State v. Parker, 315 S.C. 230, 234, 433 S.E.2d 831, 833 (1993) (holding the improper admission of bad acts evidence is subject to a harmless error analysis).  “Whether the improper introduction of this evidence is harmless requires us to look at the other evidence admitted at trial to determine whether the defendant’s ‘guilt [was] conclusively proven by competent evidence, such that no other rational conclusion could be reached.’”  Berry, 332 S.C. at 220, 503 S.E.2d at 773 (quoting Parker, 315 S.C at 234, 433 S.E.2d at 833).

In the present case, the evidence introduced at trial consisted almost entirely of the testimony regarding Nellis’ prior bad acts, none of which was admissible.  Moreover, Mother vehemently denied Nellis committed the charged offense, and no physical evidence established Nellis as the perpetrator of the charged offense.  Thus, we cannot say that without the testimony of Nellis’ prior bad acts, the evidence before the jury was so overwhelming that a guilty verdict was the only rational conclusion.  See id.

CONCLUSION [1]

For the foregoing reasons, we find the trial court erred in admitting evidence of Nellis’ prior bad acts.  The admission of this evidence was not harmless, and thus, Nellis’ conviction is

REVERSED.

STILWELL and HOWARD, JJ., and STROM, Acting Judge, concur.

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[1] Although Nellis raises numerous additional issues on appeal, because of our holding regarding the admission of prior bad act evidence, we need not address these issues.