State v. Pierce

485 S.E.2d 913, 326 S.C. 176, 1997 S.C. LEXIS 97

• Court: Supreme Court of South Carolina
• Decided: May 12, 1997
• Docket: 24613
• Status: Published

Opinions

MOORE, Justice.

Appellant was convicted of homicide by child abuse under S.C. Code Ann. § 16 — 3—85(A)(1) (Supp.1995). We reverse and remand.

FACTS

The victim was appellant’s two-year-old son, Kindal.¹ Appellant testified Kindal hit his head on the comer of a table on the night he died. She testified he seemed to be uninjured, so she gave him a bath and put him to bed. He was later found dead. Dr. Nichols, a forensic pathologist testified Kindal died from a head injury.

ISSUE

Did the trial court err in admitting testimony regarding prior injuries and appellant’s treatment of Kindal?

DISCUSSION

Two employees of Access Medical Hospital (Access) testified Kindal had been treated previously for a “split lip” and a swollen eye. The testimony was offered to prove a common scheme or plan under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).² The trial court admitted the testimony because it tended to establish a pattern of child abuse. Appellant contends the admission of this testimony was error because there was no clear and convincing evidence appellant inflicted these injuries. We agree.

The testimony regarding Kindal’s previous injuries is inadmissible absent a conviction or clear and convincing proof that appellant inflicted the injuries. State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989). The State failed to offer any proof that appellant inflicted these injuries. Thus, this testimony is inadmissible under Lyle and the trial court erred in admitting it.

An employee of Access also testified about appellant’s rough treatment of Kindal at Access one year prior to his death. The employee testified appellant jerked Kindal off the counter by his arm and put him into his stroller. The trial court held the testimony admissible under the common scheme or plan exception of Lyle, supra. Appellant contends this was error. We agree.

This prior act towards Kindal is not of such a close similarity to homicide by child abuse so as to overrule its prejudicial effect. In the case of the common scheme or plan exception under Lyle, a close degree of similarity or connection between the prior bad act and the crime is necessary. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993). See also State v. Douglas, 302 S.C. 508, 397 S.E.2d 98 (1990). The connection between the prior bad act and the crime must be more than just a general similarity. State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983). The prior acts about which the Access personnel testify are not sufficiently similar to the acts which caused Kindal’s death. State v. Rivers, 273 S.C. 75, 254 S.E.2d 299 (1979).³ Therefore, the trial judge erred in admitting this evidence.

Based on the foregoing, we reverse and remand.

REVERSED AND REMANDED.

FINNEY, C.J., and WALLER, J., concur. BURNETT and TOAL, JJ., dissent in separate opinion.

1 . Appellant’s husband was also convicted in connection with Kindal’s death.

2 . Contrary to the dissent’s assertion, the testimony of the Access personnel regarding the prior lip and eye injuries was not offered to prove the "battered child syndrome.” It was offered to prove a common scheme or plan under Lyle, supra, and the trial court admitted the testimony because it tended to establish a pattern of child abuse. Whether this evidence would have been admissible to establish the battered child syndrome is not before us.

3 . Furthermore, DSS conducted an investigation prompted by this incident and found the complaint to be unwarranted.