Brown v. State ( 2021 )

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
Johnny Brown, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2018-000738
Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge
Unpublished Opinion No. 2021-UP-305
Submitted June 1, 2021 – Filed August 25, 2021
AFFIRMED
Deputy Chief Appellate Defender Wanda H. Carter, of
Columbia, for Petitioner.
Senior Assistant Deputy Attorney General Megan
Harrigan Jameson, of Columbia, for Respondent.
PER CURIAM: A jury convicted Johnny Brown of two counts of first-degree
criminal sexual conduct (CSC) with a minor and one count of third-degree CSC with
a minor. We granted Brown's petition for certiorari for this belated review of his
direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). On
appeal, Brown argues the trial court abused its discretion in (1) admitting evidence
of his sex offender registration and (2) allowing the state to present evidence that he
had also sexually assaulted Victim several years before the assault charged in the
indictment occurred. Because these errors were harmless, we affirm.
1. Brown contends the trial court erred in admitting evidence he was on the sex
offender registry as an element of proof under section 16-3-655(A)(2) of the
South Carolina Code (2015), because it was unduly prejudicial under Rule
403, SCRE. We agree this was error. Our supreme court has held that in CSC
cases, the prejudicial effect of evidence of a defendant's prior sexual assault
conviction is "exceedingly high," yet generally has no probative force in
proving whether the defendant committed the sexual battery for which he is
being tried. State v. Cross, 427 S.C. 465, 477–78, 482, 832 S.E.2d 281, 287–
88, 290 (2019) (finding trial court erred by denying defendant's bifurcation
motion and overruling defendant's Rule 403, SCRE objection because the
"probative value of the evidence at the point in trial when the evidence was
introduced was substantially outweighed by the danger of unfair prejudice"
and "the prejudice would have been totally eliminated had the trial been
bifurcated"). Like the court in Cross, we conclude the trial court's limiting
instruction did not remove the danger of unfair prejudice. Id. at 484, 832
S.E.2d at 291. While the trial court did not have the benefit of Cross as it was
decided after Brown's trial, it is binding upon us because Brown's direct appeal
was pending when it was decided. See State v. Jones, 312 S.C. 100, 102, 439
S.E.2d 282, 282–83 (1994) (per curiam). Therefore, despite the trial court's
faithful application of the correct law at the time of Brown's trial, we are
compelled to conclude that error occurred due to the subsequent arrival of
Cross.
2. Likewise, the trial court erred in admitting Victim's testimony that Brown had
sexually assaulted her several years before. The trial court admitted this
evidence after applying the "similarity" test mandated by State v. Wallace,
384 S.C. 428, 683 S.E.2d 275 (2009). After Brown's trial, our supreme court
overruled Wallace. See State v. Perry, 430 S.C. 24, 34–37, 842 S.E.2d 654,
659–61 (2020). While the trial court did not have the benefit of Perry as it
was decided after Brown's trial, it is binding upon us because Brown's direct
appeal was pending when it was decided. See Jones, 312 S.C. at 102, 439
S.E.2d at 282–83. Pursuant to Perry, we find there was insufficient logical
connection between these prior bad acts and the crimes for which Brown was
being tried. See Rule 404(b), SCRE; Perry, 430 S.C. at 39–41, 842 S.E.2d at
662–63 (finding defendant's "methods and means" of sexually abusing his
daughters were not "unique" and "[i]t is not enough to meet the 'logical
connection' standard for admission of other crimes under the common scheme
or plan exception to Rule 404(b) that the defendant previously committed the
same crime"); id. at 41, 842 S.E.2d at 663 ("Repetition of the same act or same
crime does not equal a 'plan.'" (quoting State v. Perez, 423 S.C. 491, 502, 816
S.E.2d 550, 556 (2018) (Hearn, J., concurring))); id. ("The common scheme
or plan exception demands more. There must be something in the defendant's
criminal process that logically connects the 'other crimes' to the crime
charged.").
3. However, we find the errors harmless given the overwhelming evidence of
Brown's guilt. See State v. Gathers, 295 S.C. 476, 480–81, 369 S.E.2d 140,
143 (1988) (finding an error to be harmless beyond a reasonable doubt in light
of overwhelming evidence of appellant's guilt). Victim testified regarding the
particular sexual assault for which Brown was indicted in this trial. Victim's
testimony was corroborated in part by Victim's mother's testimony regarding
what Victim recounted to her about the assault. Additionally, several
witnesses testified about Victim's consistent disclosures of the sexual assault,
including the forensic interviewer and two nurses. Further, there was
evidence establishing that Brown's GPS tracking device pinged within 100
feet of Victim's house for several hours during the time Victim reported the
sexual assault occurred. While no DNA evidence was presented, there was
testimony that both Victim and Brown tested positive for gonorrhea although
the source of the disease was unknown. A SLED forensic scientist testified
a substance consistent with semen was identified from a vaginal swab
collected from Victim by a nurse practitioner at the MUSC pediatric
emergency room the day of the assault. See State v. Northcutt, 372 S.C. 207,
217, 641 S.E.2d 873, 878 (2007) ("Whether an error is harmless depends on
the circumstances of the particular case. No definite rule of law governs this
finding; rather, the materiality and prejudicial character of the error must be
determined from its relationship to the entire case. Error is harmless when it
could not reasonably have affected the result of the trial." (quoting State v.
Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985))).
AFFIRMED.1
WILLIAMS, THOMAS, and HILL, J.J., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.