State v. Washington ( 2020 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Shane Alexander Washington, Appellant.
Appellate Case No. 2016-000907
Appeal From Abbeville County
R. Lawton McIntosh, Circuit Court Judge
Unpublished Opinion No. 2020-UP-003
Submitted November 1, 2019 – Filed January 8, 2020
AFFIRMED
Appellate Defender Lara Mary Caudy, of Columbia, for
Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia; and Solicitor David Matthew Stumbo, of
Greenwood, all for Respondent.
PER CURIAM: Shane Washington appeals his conviction of first-degree criminal
sexual conduct with a minor, for which he was sentenced to thirty years'
imprisonment. Washington argues the circuit court erred in 1) admitting evidence
of subsequent acts of unindicted sexual misconduct; and 2) refusing to enter a
directed verdict when the State failed to present evidence of sexual battery on the
date alleged in the indictment. We affirm.
FACTS
On September 3, 2010, Minor told her father that Washington had been
sexually assaulting her since the beginning of July, most recently on September 2,
2010. Minor's father reported the abuse to the police on the same day and, on
September 9, 2011, Washington was indicted for first-degree criminal sexual
conduct with a minor. On April 6, 2015, Washington's case proceeded to trial, but
Washington could not be located. Consequently, Washington was tried in absentia.
During the trial, the State presented Minor's October 14, 2010 forensic
interview. In the video, Minor described the first instance of abuse. After this
description, Washington moved to exclude the remainder of the video from
evidence, arguing the remaining instances of abuse described in the video constituted
subsequent, unindicted crimes. Washington argued that because he was indicted for
conduct on July 1, 2010, the first instance of abuse described in the video was the
crime for which he was indicted. Thus, Washington argued, the subsequent crimes
were irrelevant to the indicted offense and overly prejudicial.
The circuit court determined that the remainder of the forensic interview was
admissible, reasoning the bad acts evidence was part of the res gestae and
demonstrated motive, intent, and lack of mistake. Before the remainder of the video
was published, the circuit court instructed the jury that, to the extent any evidence
was presented other than the alleged acts on or around July 1, 2010, it should not
consider Washington's guilt or innocence in committing these acts, but should only
consider the acts for the purpose of determining motive, intent, absence of mistake,
or to present a setting of the case and its environment.
During the remainder of the video, Minor described four instances of abuse.
First, Minor described the last instance of abuse, indicating that Washington had put
his "private" in her butt. Additionally, Minor described another instance of abuse,
asserting that Washington had placed his "private" in her butt, and two additional
instances in which Washington made Minor perform fellatio.
After the video concluded, Minor testified that Washington began abusing her
around July 2010, when she was seven years old, by touching "both spots on the
outside," that he put his "private" in her butt multiple times, and that such abuse
occurred in her mother's bathroom and in the "tattoo room." Minor also indicated
that Washington put his "private" in her butt at least once in July, around the time of
the first assault, further indicating that it occurred "in the summertime" when she
was not in school.
After Minor's testimony, Washington moved for a directed verdict, arguing
there was no evidence of sexual battery occurring on or about July 1, 2010.
Washington again argued that because the indictment read "on or about July 1,
2010," it could only be referring to the first instance of abuse. The State argued the
date in the indictment was not a material element of the crime and that the indictment
was a charging instrument that merely needed to put Washington on notice.
Ultimately, the circuit court denied the directed verdict.
After deliberating, the jury found Washington guilty of first-degree criminal
sexual conduct with a minor, specifically finding "the defendant committed the acts
upon Minor, fellatio, any intrusion however slight into any part of her genital or anal
openings or any object being inserted into her genital or anal openings." After the
jury returned its verdict, the sentence was sealed. On April 20, 2016, the Honorable
Donald B. Hocker1 unsealed Washington's sentence, which was thirty years'
imprisonment. This appeal followed.
ISSUES ON APPEAL
1. Did the circuit court err in admitting subsequent acts of unindicted sexual
misconduct?
2. Did the circuit court err in failing to enter a directed verdict on the ground that
the State did not present evidence of sexual battery on the date alleged in the
indictment?
STANDARD OF REVIEW
"In criminal cases, the appellate court sits to review errors of law only." State
v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). Therefore, "[an appellate court
is] bound by the [circuit] court's factual findings unless they are clearly erroneous."
Id. at 6, 545 S.E.2d at 829.
Admissibility of subsequent bad acts
"This same standard of review applies to preliminary factual findings in
determining the admissibility of certain evidence in criminal cases." Id. "The
1
Washington's trial was before the Honorable R. Lawton McIntosh.
admission of evidence is within the discretion of the [circuit] court and will not be
reversed absent an abuse of discretion. An abuse of discretion occurs when the
conclusions of the [circuit] court either lack evidentiary support or are controlled by
an error of law." State v. Goodwin, 384 S.C. 588, 601, 683 S.E.2d 500, 507 (Ct.
App. 2009) (quoting State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006)).
Accordingly, "[an appellate court] does not re-evaluate the facts based on its own
view of the preponderance of the evidence but simply determines whether the
[circuit court]'s ruling is supported by any evidence." Wilson, 345 S.C. at 6, 545
S.E.2d at 829. As such, "[i]f there is any evidence to support the admission of [] bad
act evidence, the [circuit court]'s ruling will not be disturbed on appeal." Id.Unfair Prejudice
"A [circuit court]'s decision regarding the comparative probative value and
prejudicial effect of relevant evidence should be reversed only in exceptional
circumstances." State v. Sweat, 362 S.C. 117, 129, 606 S.E.2d 508, 514 (Ct. App.
2004). "If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of
a [circuit] court is reviewed by an appellate tribunal." Id. (quoting State v. Hamilton,
344 S.C. 344, 358, 543 S.E.2d 586, 598 (Ct. App. 2001), overruled on other grounds
by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005)).
Directed Verdict
"When a motion for a directed verdict of acquittal is made in a criminal case,
the [circuit] court is concerned with the existence or non-existence of evidence, not
its weight." State v. Brown, 360 S.C. 581, 586, 602 S.E.2d 392, 395 (2004). "On
appeal from the denial of a motion for directed verdict, [an appellate c]ourt must
view the evidence in a light most favorable to the State." Id. An appellate court
must find that a case was properly submitted to the jury when "the State presents any
evidence [that] reasonably tends to prove the defendant[']s guilt, or from which the
defendant[']s guilt can be fairly and logically deduced . . . ." Id.; State v. Morgan,
352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct. App. 2002) ("If there is any direct
evidence or any substantial circumstantial evidence reasonably tending to prove the
guilt of the accused, th[e appellate c]ourt must find the case was properly submitted
to the jury.").
LAW/ANALYSIS
I. Subsequent bad acts
Washington argues the circuit court erred in admitting the remainder of the
forensic interview because it constituted evidence of subsequent bad acts. The State
argues the circuit court properly admitted the evidence as an exception to
Rule 404(b), SCRE, or as part of the res gestae of the case. We agree with the State.
"Generally, South Carolina law precludes evidence of a defendant's prior
crimes or other bad acts to prove the defendant's guilt for the crime charged." Sweat,
362 S.C. at 123, 606 S.E.2d at 511; see also State v. Lyle, 125 S.C. 406, 416, 118
S.E. 803, 807 (1923) ("[E]vidence of other distinct crimes committed by the accused
may not be adduced merely to raise an inference or to corroborate the prosecution's
theory of the defendant's guilt of the particular crime charged."). However, such
evidence is admissible
when it tends to establish (1) motive; (2) intent; (3)
absence of mistake; (4) a common scheme or plan
embracing the commission of two or more crimes so
related to each other that proof of one tends to establish
the other; and (5) the identity of the person charged with
commission of the present crime.
Sweat, 362 S.C. at 123, 606 S.E.2d at 511; see also Rule 404(b), SCRE ("[Evidence
of other bad acts] may . . . be admissible to show motive, identity, the existence of a
common scheme or plan, the absence of mistake or accident, or intent.").
Additionally, evidence of other bad acts may be admitted under the res gestae theory,
which "recognizes [such] evidence . . . may be an integral part of the crime with
which the defendant is charged, or may be needed to aid the fact finder in
understanding the context in which the crime occurred." State v. King, 334 S.C. 504,
512, 514 S.E.2d 578, 582 (1999).
Before the circuit court may admit bad acts evidence, it must make several
determinations: 1) the proffered evidence must be relevant; 2) when a defendant has
not been convicted of the bad acts, the evidence of such acts must be clear and
convincing; 3) the bad act evidence must fit within a Rule 404(b) exception or form
part of the res gestae; and 4) the probative value of such evidence must not be
substantially outweighed by the danger of unfair prejudice. State v. Clasby, 385 S.C.
148, 154–56, 682 S.E.2d 892, 895–96 (2009); King, 334 S.C. at 512–13, 514 S.E.2d
at 582–83.
While we do not agree that all four incidents described by Minor in the
remainder of the video constitute evidence of subsequent bad acts, at a minimum,
the last incident described likely constitutes evidence of a subsequent bad act.2
Accordingly, we will analyze whether the circuit court erred in admitting the entire
forensic interview. On appeal, Washington does not dispute that the other bad acts
were proven by clear and convincing evidence. Therefore, we will review the circuit
court's determinations regarding relevance, common scheme, res gestae, and unfair
prejudice.
a. Relevance
Washington argues the bad acts evidence is not relevant because the acts
occurred after the date of the crime alleged in the indictment. The State argues the
acts were relevant because they were intimately connected to the abuse and provided
context regarding the time period in which the abuse occurred. The State also argues
there is significant probative value in evidence demonstrating continuous illicit
intercourse between Washington and Minor. We agree with the State.
"As a threshold matter, the trial judge must initially determine whether the
proffered evidence is relevant as required under Rule 401 of the South Carolina
Rules of Evidence." Clasby, 385 S.C. at 154, 682 S.E.2d at 895. "'Relevant
evidence' means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence." Rule 401, SCRE. "Evidence [that] assists
the jury in arriving at the truth of an issue is relevant and admissible unless otherwise
incompetent." Sweat, 362 S.C. at 126, 606 S.E.2d at 513. "Evidence is relevant if
it tends to establish or make more or less probable some matter in issue upon which
it directly or indirectly bears, and it is not required that the inference sought should
necessarily follow from the fact proved." Id. at 126–27, 606 S.E.2d at 513.
Our courts have previously found that bad acts evidence can be relevant in
establishing charged criminal sexual conduct. See Clasby, 385 S.C. at 158–59, 682
S.E.2d at 898 (finding because "there was no physical evidence to corroborate
[Minor]'s testimony regarding the indicted offenses of CSC with a minor, first degree
and lewd act upon a child, . . . her testimony of Clasby's sustained illicit conduct was
extremely probative to establish the charged criminal sexual conduct underlying the
offense of lewd act upon a child" (emphasis added)). Additionally, under the res
gestae theory, "evidence of other bad acts may be an integral part of the crime with
which the defendant is charged[] or may be needed to aid the fact finder in
understanding the context in which the crime occurred." King, 334 S.C. at 512, 514
2
When Minor reported her abuse on September 3, 2010, she claimed that
Washington had last abused her the day before.
S.E.2d at 582 (emphases added). Thus, the circuit court properly found the bad acts
evidence was relevant.
b. Bad acts exceptions
Washington argues the circuit court erred in admitting the bad acts evidence
because it constituted propensity evidence precluded by Rule 404(b), SCRE. The
State argues the circuit court properly admitted the evidence because it satisfies the
"common scheme or plan" exception to Rule 404(b) and forms part of the res gestae.
We agree with the State.
"If the [circuit court] finds the evidence to be relevant, the [court] must then
determine whether the bad act evidence fits within an exception of Rule 404(b)[,]"
or whether it forms part of the res gestae. Clasby, 385 S.C. at 154, 682 S.E.2d at
895; King, 334 S.C. at 512–13, 514 S.E.2d at 582–83. Pursuant to Rule 404(b),
SCRE, "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." However,
such evidence may "be admissible to show motive, identity, the existence of a
common scheme or plan, the absence of mistake or accident, or intent." Id. "To be
admissible, the bad act must logically relate to the crime with which the defendant
has been charged." Clasby, 385 S.C. at 155, 682 S.E.2d at 895 (quoting State v.
Gaines, 380 S.C. 23, 29, 667 S.E.2d 728, 731 (2008)); see also Sweat, 362 S.C. at
127, 606 S.E.2d at 513 ("The record must support a logical relevance between the
prior bad act and the crime for which the defendant is accused." (quoting King, 334
S.C. at 512, 514 S.E.2d at 582)). "If the court does not clearly perceive the
connection between the extraneous criminal transaction and the crime charged, that
is, its logical relevancy, the accused should be given the benefit of the doubt, and the
evidence should be rejected." Sweat, 362 S.C. at 127, 606 S.E.2d at 513.
Common scheme or plan
"The common scheme or plan exception 'is generally applied in cases
involving sexual crimes, where evidence of acts prior and subsequent to the act
charged in the indictment is held admissible as tending to show continued illicit
intercourse between the same parties.'" State v. Weaverling, 337 S.C. 460, 469, 523
S.E.2d 787, 791 (Ct. App. 1999) (quoting State v. Whitener, 228 S.C. 244, 265, 89
S.E.2d 701, 711 (1955)). "Where there is a close degree of similarity between the
crime charged and the prior bad act, [our courts] have held prior bad acts are
admissible to demonstrate a common scheme or plan." Clasby, 385 S.C. at 155, 682
S.E.2d at 896 (quoting Gaines, 380 S.C. at 30, 667 S.E.2d at 731). "When
determining whether evidence is admissible as common scheme or plan, the [circuit]
court must analyze the similarities and dissimilarities between the crime charged and
the bad act evidence to determine whether there is a close degree of similarity." Id.
(quoting State v. Wallace, 384 S.C. 428, 433, 683 S.E.2d 275, 277–78 (2009)).
"When the similarities outweigh the dissimilarities, the bad act evidence is
admissible under Rule 404(b)." Id. (quoting Wallace, 384 S.C. at 433, 683 S.E.2d
at 278). Moreover, when a "defendant's []bad acts are directed toward the same
victim and are very similar in nature, those acts are admissible as a common scheme
or plan." State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d 107, 117 (Ct. App. 2008).
Here, the similarities between all of the incidents described by Minor in the
interview strongly outweigh the dissimilarities. The following details are consistent
among all of the alleged assaults: 1) Minor was the victim, see id. ("When a criminal
defendant's []bad acts are directed toward the same victim and are very similar in
nature, those acts are admissible as a common scheme or plan."); 2) all of the alleged
assaults constituted sexual battery; 3 3) the assaults occurred in Minor's home; 4) the
assaults occurred while Minor's mother was asleep or out of the house; 5) most of
the assaults occurred at night; and 6) Washington made Minor wear a blindfold or
cover her eyes each time. There are two main dissimilarities between the assaults:
1) the location within the house—the tattoo room, her mother's room, and her
brother's room—where the abuse occurred; and 2) the type of sexual battery that
occurred. Accordingly, we find the similarities between the incidents alleged by
3
Washington argues the first assault did not constitute sexual battery because Minor
did not describe any penetration, but indicated the incident merely involved touching
on the outside of Minor's "private" and butt. However, Minor also indicated
Washington 1) "rubbed on her," touching her "private" and butt on the outside with
skin touching skin; 2) blindfolded her; and 3) pulled his pants down and told her to
bend over. Minor further indicated she did not know what Washington did to her,
but felt something "wet" on her butt when he was finished. Based on this evidence,
the circuit court found Minor provided a sufficient description to demonstrate that a
sexual battery had occurred. See Wilson, 345 S.C. at 6, 545 S.E.2d at 829 ("[An
appellate court is] bound by the [circuit] court's factual findings unless they are
clearly erroneous."). We agree that Minor sufficiently described a sexual battery
when describing the first incident. See S.C. Code Ann. § 16-3-651(h) (2015)
("'Sexual battery' means . . . anal intercourse, or any intrusion, however slight, of
any part of a person's body . . . into the genital or anal openings of another person's
body . . . ."); see, e.g., State v. Mathis, 287 S.C. 589, 593, 340 S.E.2d 538, 541 (1986)
("The six-year-old prosecutrix testified that Mathis touched her with his penis. She
could not remember if he put it inside her body. However, when asked if it hurt, she
replied that it had. This is evidence of some 'intrusion, however slight' . . . .").
Minor strongly outweigh the dissimilarities such that the circuit court did not abuse
its discretion in admitting the evidence as an exception to Rule 404(b), SCRE. See
Clasby, 385 S.C. at 155, 682 S.E.2d at 896 ("When the similarities outweigh the
dissimilarities, the bad act evidence is admissible under Rule 404(b)." (quoting
Wallace, 384 S.C. at 433, 683 S.E.2d at 278)); see also Wilson, 345 S.C. at 6, 545
S.E.2d at 829 ("If there is any evidence to support the admission of []bad act
evidence, the [circuit court]'s ruling will not be disturbed on appeal.").
Res gestae
"Evidence of other crimes is admissible under the res gestae theory when the
other actions are so intimately connected with the crime charged that their admission
is necessary for a full presentation of the case." Anderson v. State, 354 S.C. 431,
435, 581 S.E.2d 834, 836 (2003); see also King, 334 S.C. at 512, 514 S.E.2d at 582("The res gestae theory recognizes evidence of other bad acts may be an integral part
of the crime with which the defendant is charged[] or may be needed to aid the fact
finder in understanding the context in which the crime occurred."). "When evidence
is admissible to provide this full presentation of the offense, there is no reason to
fragmentize the event under inquiry by suppressing parts of the res gestae." State v.
McGee, 408 S.C. 278, 288, 758 S.E.2d 730, 735 (Ct. App. 2014) (quoting State v.
Preslar, 364 S.C. 466, 474, 613 S.E.2d 381, 385 (Ct. App. 2005)). "Under this
theory, it is important that the temporal proximity of the prior bad act be closely
related to the charged crime." King, 334 S.C. at 513, 514 S.E.2d at 583.
Accordingly, "evidence of []bad acts is inadmissible as part of the res gestae[]
'whe[n] the record does not support any relationship between the crime and'" the bad
acts.'" Id. (quoting State v. Hough, 325 S.C. 88, 92, 480 S.E.2d 77, 79 (1997)).
The circuit court properly admitted the bad acts evidence under the res gestae
theory because the unindicted conduct was so intimately tied to the charged offense
that it was necessary for a full presentation of the case. First, the acts were all
relatively close in time as they occurred over the course of two months. See King,
334 S.C. at 513, 514 S.E.2d at 583 ("Under this theory, it is important that the
temporal proximity of the []bad act be closely related to the charged crime.").
Second, we believe the bad acts evidence provided context to the crime as part of
Washington's sustained illicit conduct. See id. at 512, 514 S.E.2d at 582 ("The res
gestae theory recognizes evidence of other bad acts may be . . . needed to aid the
fact finder in understanding the context in which the crime occurred."). Thus, the
evidence was helpful to the jury by demonstrating the alleged sexual battery was not
a one-time event that may have been misinterpreted or misremembered. Third, we
believe the evidence was necessary to complete the "story of the crime on trial." See
Sweat, 362 S.C. at 133, 606 S.E.2d at 517 (finding bad acts evidence properly
admitted under the res gestae theory "to 'complete the story of the crime on trial.'").
The bad acts evidence provided a time range for the alleged sexual misconduct, the
sustained nature of the abuse, and the consistent methods by which Washington
perpetrated the abuse. Accordingly, the circuit court properly admitted the bad acts
evidence under the res gestae theory. See McGee, 408 S.C. at 288, 758 S.E.2d at
735 ("When evidence is admissible to provide this full presentation of the offense,
there is no reason to fragmentize the event under inquiry by suppressing parts of the
res gestae." (quoting Preslar, 364 S.C. at 474, 613 S.E.2d at 385)); see also Wilson,
345 S.C. at 6, 545 S.E.2d at 829 ("If there is any evidence to support the admission
of []bad act evidence, the [circuit court]'s ruling will not be disturbed on appeal.").
c. Unfair prejudice
Washington argues the circuit court erred in admitting the bad acts evidence
because the danger of unfair prejudice substantially outweighed the evidence's
probative value. The State argues the probative value of the bad acts evidence
outweighs any danger of unfair prejudice. We agree with the State.
"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . ." Rule 403, SCRE.
As such, even if bad acts evidence falls within an exception to Rule 404(b) or forms
part of the res gestae, it must be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Clasby, 385 S.C. at 155–56, 682
S.E.2d at 896; King, 334 S.C. at 512, 514 S.E.2d at 582. However, "[a]ll evidence
is meant to be prejudicial; it is only unfair prejudice [that] must be scrutinized under
Rule 403." McGee, 408 S.C. at 289, 758 S.E.2d at 736 (alterations in original)
(quoting State v. Collins, 398 S.C. 197, 207, 727 S.E.2d 751, 757 (Ct. App. 2012),
rev'd on other grounds, 409 S.C. 524, 763 S.E.2d 22 (2014)). Thus, "[u]nfair
prejudice does not mean the damage to a defendant's case that results from the
legitimate probative force of the evidence; rather it refers to evidence [that] tends to
suggest [a] decision on an improper basis." Id. at 288–89, 758 S.E.2d at 736 (quoting
State v. Dennis, 402 S.C. 627, 636, 742, S.E.2d 21, 26 (Ct. App. 2013)). "The
determination of prejudice must be based on the entire record[,] and the result will
generally turn on the facts of each case." Wilson, 345 S.C. at 7, 545 S.E.2d at 830.
Here, the probative value of the bad acts evidence substantially outweighs the
risk of unfair prejudice. First, the risk of unfair prejudice was low because the bad
acts evidence, like the evidence of the crime itself, hinged on Minor's credibility.
Thus, if the jury found Minor to be credible, it would likely believe her testimony
that Washington was guilty of the crime charged and have no reason to consider the
bad acts evidence. See State v. Aiken, 322 S.C. 177, 181, 470 S.E.2d 404, 406–07
(Ct. App. 1996) ("[T]he chance that the admission of this evidence unfairly
prejudiced [appellant] was small because if the jury found [witness] to be credible,
it would likely believe his testimony that [appellant] was guilty of the crime he was
charged with and have no reason to consider the testimony concerning the other
[crimes]."). Second, the probative value of the bad acts evidence was extremely high
because there was no physical evidence of assault. See Clasby, 385 S.C. at 158–59,
682 S.E.2d at 897–98 ("[W]e hold the probative value of this evidence substantially
outweighed the danger of unfair prejudice to [appellant]. Given there was no
physical evidence to corroborate [victim's] testimony regarding the indicted offenses
of CSC with a minor, first degree and lewd act upon a child, we find her testimony
of [appellant's] sustained illicit conduct was extremely probative to establish the
charged criminal sexual conduct underlying the offense of lewd act upon a child."
(emphases added)). Thus, the circuit court properly found that the probative value
of the bad acts evidence outweighed the danger of unfair prejudice. 4 See Sweat, 362
S.C. at 129, 606 S.E.2d at 514 ("A [circuit court]'s decision regarding the
comparative probative value and prejudicial effect of relevant evidence should be
reversed only in exceptional circumstances.").
Because the bad acts evidence was relevant and fit a bad acts exception and
its probative value outweighed the danger of unfair prejudice, the circuit court did
not abuse its discretion in admitting the evidence. See Goodwin, 384 S.C. at 601,
683 S.E.2d at 507 ("The admission of evidence is within the discretion of the [circuit]
court and will not be reversed absent an abuse of discretion." (quoting Pagan, 369
S.C. at 208, 631 S.E.2d at 265)).
II. Directed verdict
"When a motion for a directed verdict of acquittal is made in a criminal case,
the [circuit] court is concerned with the existence or non-existence of evidence, not
its weight." Brown, 360 S.C. at 586, 602 S.E.2d at 395. As such, "[t]he [defendant]
4
Washington argues the prejudicial effect of the bad acts evidence is enhanced by
the State's allegedly improper closing argument in which it argued, "If you find as a
jury that he stuck his penis in her bottom, he stuck his penis in her mouth like she
testified, if you find that she told the truth, then you find the Defendant guilty." This
issue has not been preserved for appellate review as Washington did not object to
the closing argument at trial. See Ligon v. Norris, 371 S.C. 625, 633 n.1. 640 S.E.2d
467, 471 n.1 (Ct. App. 2006) ("When a party fails to make a timely objection to an
improper closing argument, the issue is not preserved for appellate review.").
is entitled to a directed verdict when the evidence merely raises a suspicion of
guilt[,]" or "when the State fails to present evidence on a material element of the
offense charged." Id. Conversely, "[a]ny evidence, direct or circumstantial, tending
to prove the guilt of the accused creates a jury issue." Mathis, 287 S.C. at 593, 340
S.E.2d at 541. Thus, "if the State presents any evidence [that] reasonably tends to
prove the defendant[']s guilt, or from which the defendant[']s guilt can be fairly and
logically deduced, the case must go to the jury." Brown, 360 S.C. at 586, 602 S.E.2d
at 395.
"A person is guilty of criminal sexual conduct with a minor in the first degree
if the actor engages in sexual battery with a victim who is less than eleven years of
age." S.C. Code Ann. § 16-3-655(A)(1) (2015). "'Sexual battery' means sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight,
of any part of a person's body or of any object into the genital or anal openings of
another person's body, except when such intrusion is accomplished for medically
recognized treatment or diagnostic purposes." S.C. Code Ann. § 16-3-651(h). In
regard to the element of intrusion, "[f]ull penetration is not necessary." State v.
Johnson, 334 S.C. 78, 85, 512 S.E.2d 795, 798 (1999). Moreover, "[a] conviction
for a sexual battery may be sustained on the uncorroborated testimony of the victim."
Id. at 84–85, 512 S.E.2d at 798.
"Strict common law practice requires an indictment to allege the day of the
month and year when the offense was committed." State v. Thompson, 305 S.C. 496,
500, 409 S.E.2d 420, 423 (Ct. App. 1991). "This rule still applies in any case where
the date is a material element of the offense." Id. "A material variance between
charge and proof entitles the defendant to a directed verdict." State v. Watts, 321
S.C. 158, 168, 467 S.E.2d 272, 278 (Ct. App. 1996). "However, a variance is not
material 'where the matter alleged is not an element of the offense.'" Id. (quoting
State v. Hiott, 276 S.C. 72, 81, 276 S.E.2d 163, 167 (1981)). "The specific date and
time is not an element of the offense of first degree criminal sexual conduct."
Thompson, 305 S.C. at 501, 409 S.E.2d at 423. Accordingly, an indictment for
first-degree criminal sexual conduct with a minor "must sufficiently apprise the
defendant of what he or she should be prepared to meet[,]" but the "indictment need
not specifically charge the precise time the offense allegedly occurred." State v.
Wingo, 304 S.C. 173, 175, 403 S.E.2d 322, 323 (Ct. App. 1991); 75 C.J.S. Rape §
61, Westlaw (database updated December 2019) ("Any variance between the date
on which an indictment alleges that a rape offense occurs and the date proved at the
trial does not entitle the accused to an acquittal since the date and time are not
elements of the charged offense, and the accused has sufficient knowledge of the
charge against him to adequately prepare a defense."). Rather, "the indictment must
show the offense was committed prior to the finding of the indictment." Wingo, 304
S.C. at 175, 403 S.E.2d at 323; 65 Am. Jur. 2d Rape § 36, Westlaw, (database
updated November 2019) ("Thus, rape can be proved to have been committed at any
time before the date of the information and within the period of the statute of
limitations . . . .").
Based on our state's law, the date of the alleged sexual battery is not a material
element of first-degree criminal sexual conduct with a minor. See Thompson, 305S.C. at 501, 409 S.E.2d at 423 ("The specific date and time is not an element of the
offense of first degree criminal sexual conduct."). Therefore, because the indictment
was sufficient to put Washington on notice of the crime for which he was accused,
the State was required to prove only that the sexual battery occurred before the date
of the indictment. See Wingo, 304 S.C. at 175, 403 S.E.2d at 323 ("[T]he indictment
must show the offense was committed prior to the finding of the indictment.").
While there is significant evidence in the record upon which the jury could have
determined Washington committed sexual battery, we focus on Minor's testimony
for the sake of brevity. Minor testified Washington put his "private" in her butt
sometime in July around the time of the first incident. This testimony alone
constitutes evidence of sexual battery upon which the jury could have found
Washington guilty of first-degree criminal sexual conduct with a minor. See S.C.
Code Ann. § 16-3-651(h) ("'Sexual battery' means . . . anal intercourse, or any
intrusion, however slight, of any part of a person's body . . . into the genital or anal
openings of another person's body . . . ."); see also Mathis, 287 S.C. at 593, 340
S.E.2d at 541 ("Any evidence, direct or circumstantial, tending to prove the guilt of
the accused creates a jury issue."); Johnson, 334 S.C. at 84–85, 512 S.E.2d at 798("A conviction for a sexual battery may be sustained on the uncorroborated
testimony of the victim."). Thus, the circuit court properly denied Washington's
motion for a directed verdict.
CONCLUSION
For the foregoing reasons, Washington's conviction is
AFFIRMED. 5
SHORT, THOMAS, and GEATHERS, JJ., concur.
5
We decide this case without oral argument pursuant to Rule 215, SCACR.