State v. Grace , 350 S.C. 19 ( 2002 )

CURETON, J.

Terry Lee Grace (“Grace”) was convicted of the offense of lewd act on a minor and three charges of simple assault and battery upon the same minor. Grace appeals his convictions arguing the circuit court erred in consolidating the four indictments for trial, and in limiting the testimony of his brother and the cross-examination of his ex-wife. We affirm.

FACTS

Grace and Julie Wilkinson Cowens (“Julie”) were husband and wife and had custody and care of their fourteen-year-old niece (“the niece”) and fifteen-year-old nephew. During the early morning hours of October 17, 1997, Julie went into the niece’s bedroom and did not see her. While searching for her, Julie entered the guest bedroom upstairs, where Grace frequently slept, to look for the niece. Julie pulled the bed covers off the bed, and discovered Grace lying naked in the bed with the niece, who was clad only in a tee shirt. Julie became enraged and asked Grace and the niece whether they had sexual intercourse. The niece responded they had, but Grace denied having sex with the niece.

Upon discovering Grace and the niece together in bed, Julie called 911 and told the operator what had occurred. The 911 operator notified the police who dispatched sheriff's deputies to the scene. The deputies arrested Grace. Lieutenant Hunt, the sexual assault investigator for the Georgetown County Sheriffs Department, investigated the allegations. Hunt asked the niece about the events of October 17 and also whether any similar prior events between the niece and Grace had occurred. The niece responded that they had engaged in sexual intercourse on two prior occasions, and that on October 17 Grace digitally penetrated her. Hunt examined the mattress that Grace and the niece were found lying on and noticed what she thought were old blood stains on the mattress. She cut out the stained portion of the mattress and had it tested to see if the stain matched the niece’s DNA The DNA test results were inconclusive. Also Hunt arranged for the niece to be examined by a doctor. The results of this examination were also inconclusive.

Grace was charged and separately indicted on three counts of criminal sexual conduct with a minor under the age of sixteen, and one count of lewd act on a minor. The jury convicted Grace on the lewd act on a minor charge and three counts of simple assault and battery. This appeal followed.

LAW/ANALYSIS

I. Joinder Issue

Grace argues the trial judge abused his discretion in not requiring the State to try the criminal sexual conduct charges separate from the lewd act with a minor charge because the joinder made the jury more likely to convict him on the lewd act charge. We disagree.

The circuit court has wide discretion when deciding whether to consolidate charges for trial and its decision will only be overturned when an abuse of discretion has occurred. State v. Smith, 322 S.C. 107, 109, 470 S.E.2d 364, 365 (1996). There are several factors to consider when deciding whether the consolidation of charges was proper. “Where the offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place, and character, the trial judge has the power, in his discretion, to order the indietipents tried together if the defendant’s substantive rights would not be prejudiced.” State v. Jones, 325 S.C. 310, 315, 479 S.E.2d 517, 519 (Ct.App.1996). When offenses are interconnected they are considered to be of the same general nature. Id.

There were four separate indictments issued against Grace. The first was for criminal sexual conduct alleging sexual battery by committing the act of fellatio between the dates of August 18 and September 30, 1997. The second was for criminal sexual conduct alleging sexual battery by intercourse between the dates of August 18 and October 12, 1997. The third was for criminal sexual conduct by committing a sexual battery by digital penetration between August 18 and September 30, 1997. The fourth was for lewd act with a minor on or about October 16, and 17, 1997.

The niece testified that on three occasions during the August 18 to October 17,1997 time span, Grace propositioned her to engage in a sexual encounter. Each time, the events occurred in the same place and in the same manner. The niece testified that Grace approached her the first time and stated that he wished to have sex with her. Grace then instructed the niece to come up to the guest bedroom, where Grace slept, when she was certain everyone else in the house was asleep. When the niece complied with Grace’s instructions and went to the guest bedroom, Grace kissed the niece, performed oral sex on the niece, had the niece perform oral sex on him, digitally penetrated the niece, had intercourse with her and ejaculated on her stomach.

The second encounter occurred in mid-September in the same manner, and the same sequence of sexual events occurred. On both occasions, Grace asked the niece “Did she need attention?” which the niece testified was a code for whether she wanted sex. On the evening of October 16, 1997, Grace once again asked the niece to come to his room in the same manner as before; however, this time only digital penetration occurred.

The indictments in this case involved charges of the same general nature. The crimes alleged were all sexual misconduct crimes and were interconnected. All incidents concerned the same parties, Grace and the niece, and took place in the same location, the guest bedroom, within a relatively short time period. The underlying evidence shows a pattern of sexual abuse and was essentially the same for all charges.¹ We reject Grace’s argument that the jury could have been improperly influenced by the criminal sexual conduct charges in considering the lewd act charge. The jury had no trouble sorting out the evidence regarding the criminal sexual conduct charges by convicting Grace on simple assault charges only. There is no reason it could not have done the same for the lewd act charge. In addition, there was ample evidence in the record for the jury to convict Grace on the lewd act charge without considering any evidence from the events which led to the criminal sexual conduct charge. Under the facts of this case the circuit court did not abuse its discretion by consolidating the charges for trial. Moreover, judicial economy was fostered by the consolidation. See United States v. Hines, 39 F.3d 74, 79 (4th Cir.1994), vacated in part on other grounds, Hines v. United States, 516 U.S. 1156, 116 S.Ct. 1038, 134 L.Ed.2d 186 (1996).

II. Limitation on Grace’s Presentation of His Defense

A. Exclusion of Mike Grace’s Testimony

Grace claims the circuit court erred in excluding testimony of his witness Mike Grace regarding prior instances of abuse by Julie against the niece. The circuit court excluded Mike Grace’s testimony finding Grace was attempting to attack Julie’s credibility on the basis of extrinsic evidence, in violation of Rule 608, South Carolina Rules of Evidence, and allowed only testimony regarding Julie’s reputation for truthfulness or untruthfulness.

Grace’s theory of defense was that the niece was so fearful of Julie’s use of physical force to discipline her that the niece concocted the stories of being sexually abused by Grace to escape the household. Grace argues that there was a lack of physical evidence in the case to establish the niece had been sexually assaulted. As a result, the evidence necessary to convict Grace would have to be established through the testimony of the niece and Julie. Therefore, Grace argues, it was essential to his defense that he be allowed to present evidence of Julie’s violent nature, and the niece’s motive for lying about the sexual assaults. Grace contends the circuit court’s ruling limiting his presentation of evidence effectively denied him his right to present his defense.

The Sixth Amendment rights to notice, confrontation, and compulsory process guarantee that a criminal charge may be answered through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence____The Amendment essentially “constitutionalizes” the right to present a defense in an adversary criminal trial.

State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402 (1986).

As we read Grace’s argument at trial for the admission of Mike Grace’s testimony, it was based on Rule 608, SCRE. Rule 608(b) provides when specific acts evidence may be used to impeach a witness’s testimony.

(b) Specific Instances of Conduct. Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness[.]

Rule 608(b), SCRE.

Rule 608(a) permits the credibility of a witness to be impeached in the form of opinion or reputation testimony, but only for “truthfulness or untruthfulness.” Mike Grace was permitted to state without objection that Julie did not have a reputation “as being a truthful and honest person.” As noted above, Rule 608(b) provides, for the purpose of attacking credibility, that specific instances of conduct, other than the conviction of a crime, may not be proven by extrinsic evidence. Moreover, we do not see in the record where Grace proffered the testimony of Mike Grace as required by Rule 103, SCRE.²

Even if the circuit court erred by not permitting Mike Grace to testify about specific instances of alleged physical abuse, such error is harmless because it is cumulative to other testimony regarding Julie’s acts of physical abuse of the niece. See State v. Patterson, 290 S.C. 523, 528, 351 S.E.2d 853, 856 (1986) (holding that excluding medical records was harmless when evidence was cumulative to testimony of the pathologist). The niece testified, “I was kind of afraid of her, because she did have a temper, and she did yell, and she did hit sometimes. And I think she went overboard sometimes about things, because she did have — she does have bipolar.” During the niece’s cross-examination, the following colloquy occurred:

Q: Did he ever — was your Aunt Julie always kind and caring towards you?

A: She was the disciplinary person, so she — no, she wasn’t always kind and caring.

Q: I think you testified that she had — earlier you testified that she had — that you were afraid of her?

A: Yes, when she got angry.

Q: Why would you be afraid of your Aunt?

A: Because she was the one who did the ■ disciplinary things. I didn’t like getting spanked. I didn’t like getting smacked in the mouth.

During Julie’s cross-examination, Julie admitted holding the niece’s head under water in the bathtub, trying to drown the niece. She also testified that she peppered the niece’s tongue when the niece used profanity. Mike Grace testified that he had witnessed Julie being abusive toward her niece. Finally, Grace testified that he had to intervene in Julie’s punishment of the niece because he felt that Julie was going too far. Based on the above testimony, there was plenty of evidence in the record for the jury to have fully considered Grace’s defense and any potential error by excluding Mike Grace’s testimony is harmless beyond a reasonable doubt.

B. Cross-Examination of Julie Cowens

During the trial, Grace sought to question Julie about two prior suicide attempts to impeach Julie’s testimony that she felt she “was the most stable force in the relationship.” Grace also attempted to introduce testimony regarding Julie’s arrest for criminal domestic violence, which charges emanated from conduct occurring in December 1998, over a year after the October 1997 incidents, and were subsequently dismissed by the court. The court refused to allow Grace to question Julie on these matters, concluding that Julie’s prior suicide attempts and criminal domestic violence arrest did not constitute specific acts related to the witness’s character for truthfulness or untruthfulness.

Both the United States and South Carolina Constitutions provide that every criminal defendant has the right to cross examine the witnesses testifying against him. U.S. Const, amend. VI; S.C. Const. art. I § 14. South Carolina courts have discretion to limit the scope of cross-examination. See State v. Saltz, 346 S.C. 114, 131, 551 S.E.2d 240, 249 (2001). However, before the court may limit a criminal defendant’s cross-examination of a witness, the record must show that the cross-examination is somehow improper. See State v. Graham, 314 S.C. 383, 385-86, 444 S.E.2d 525, 527 (1994). If not, then the circuit court abuses its discretion by limiting the cross-examination. Id. at 386, 444 S.E.2d at 527.

Evidence of specific bad conduct must go to the -witness’s credibility. State v. Knox, 98 S.C. 114, 117-18, 82 S.E. 278, 279 (1914). Acts of violence are generally not those types of acts which go to a witness’s credibility. See Danny R. Collins, South Carolina Evidence 155 (2nd ed.2000). A criminal domestic violence charge is an act of violence towards another. As such, this prior act is not related to Julie’s character for truthfulness or untruthfulness, and the circuit court did not err when it limited introduction of evidence regarding the criminal domestic violence charge, as allowing inquiry into this conduct would have been improper under Rule 608(b).

The court concluded under Rule 403, SCRE that the prejudicial effect of admitting the testimony regarding the suicide attempts would outweigh its probative value. A trial court’s decision regarding the comparative probative value versus prejudicial effect of evidence should be reversed only in exceptional circumstances. State v. Hamilton, 344 S.C. 344, 357, 543 S.E.2d 586, 594 (Ct.App.2001). Moreover, the circuit court did not preclude all reference to questions regarding Julie’s stability. The court ruled:

I will allow you to go into the question of — any question regarding her stability, mental health treatment, or anything of that nature, because I think that is probative of the issue of her mental stability; and she has testified that she was the most stable one in the home.

The exclusion of this testimony was also tempered by Julie’s explanation why she was “the more stable of the relationship.” She testified on redirect:³

Terry was never there for them. The children and I, contrary to what the counselor or the other counselor wants to say, had a very close knit relationship. We did things together. We went places together. We worked as a family.

Terry had his own itinerary, Terry did what Terry wanted to do. If Terry wanted to golf, that left the three of us at home. If Terry wanted to go out, that left the three of us at home.

And we spent a lot of quality, good time, we worked hard together at the place that we lived in Ohio. We had — we were a very close knit.

I interceded on many, many times, and many occasions for these children because of the wrath of Terry when he would come home. I had to play the buffer and the brunt — .

At this point, Grace objected, “based on the court’s rulings previously.” Whereupon the court stated “I thought I had ruled that questions of stability could go — could be inquired into and you did not inquire into it.”

Under the facts of this case, we conclude the trial court did not err in excluding cross-examination of Julie regarding her prior suicide attempts⁴ and her arrest on criminal domestic violence charges.

Accordingly, Grace’s conviction is

AFFIRMED.

GOOLSBY, J., concurs. ANDERSON, J., dissents in a separate opinion.

1 . Although Grace argues the witnesses are not the same for the lewd act charge as for the criminal sexual conduct charges, they are the same except for Julie. The niece testified Grace’s modus operandi was the same on the night of October 17 as on the other occasions, except for the fact that the performance of oral sex and sexual intercourse did not occur. The other witnesses at trial testified to their investigation concerning all charges. Moreover, the lewd act charge is integrally connected to the prior charges because it was the vehicle through which the other charges were discovered.

2 . Grace’s attorney at trial, who is not his attorney on appeal, did state at the conclusion of Mike Grace's testimony: “Your Honor, what I anticipated doing was — or attempting to do was have this witness, Mr. Grace, testify as to acts of physical abuse, and domestic violence, and verbal abuse directed toward the two teenagers, or children, that were living in the house.”

3 . Julie was not cross-examined on this specific testimony.

4 . We note that Julie and a police officer testified to a suicide attempt that occurred after the incident of Julie finding the niece in bed with Grace. Additionally, much evidence was adduced regarding Julie’s depression and the treatment of her depression.