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In March 2012, Daughter Three revealed to Mother that Perry had sexually abused her during visitation.
After Daughter Three's disclosure, Daughter Two informed Mother that she had also been sexually abused by Perry. Perry first argues the trial court, when performing its Rule 403 analysis, failed to consider the fact that Newcomer testified the abuse progressed to intercourse, which was different from Daughter Two's and Daughter Three's testimony. E.2d at 653 (“It is well established that counsel's statements regarding the facts of a case and counsel's arguments are not admissible evidence.”).
Wallace Steve Perry appeals his convictions for two counts of first-degree criminal sexual conduct (CSC) and two counts of second-degree CSC. See Rule 403, SCRE (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ․”). Henderson did not improperly comment on the veracity of Daughter Three's testimony.
He argues the trial court erred in (1) finding his former stepdaughter's testimony was admissible as evidence of a common scheme or plan and (2) allowing a doctor to improperly comment on the veracity of his daughter's testimony. FACTS/PROCEDURAL HISTORYIn 1993, Perry met and began dating Laura Jones (Mother). E.2d at 247 (“The trial court did not abuse its discretion in admitting evidence of [the appellant's] bad acts, occurring some eleven to twenty years prior to the crimes charged.”); State v. Accordingly, the trial court did not abuse its discretion in admitting Newcomer's testimony. We disagree.“While experts may give an opinion, they are not permitted to offer an opinion as to the credibility of others.” State v.
According to Newcomer, Perry continued to abuse her periodically over the next four years, and she estimated he digitally penetrated her about twenty times. Newcomer stated she did not disclose the abuse right away because Perry had told her no one would believe her and her accusations would hurt the family. The trial court determined that to avoid unfair prejudice to the defendant, any testimony regarding sexual intercourse would not be allowed when the sister testified before the jury. Our supreme court agreed with the trial court's decision to redact a portion of the sister's testimony and found it did not make the two acts seem more similar than they actually were. Rather, our supreme court noted the trial court had “redacted only the last step in a progressive course of abuse” and “[t]he fact that [the victim's] abuse was interrupted before it could culminate in intercourse [did] not diminish the similarity between the progression the abuse took in each case.” Id. In the instant case, there was a close degree of similarity between the testimony of Newcomer and that of Daughter Two and Daughter Three.
According to Daughter Two, Perry orally penetrated her vagina late one night while she was sitting in a chair and early one morning while she was in bed with Daughter Three. For evidence of a prior bad act to be admissible to show the existence of a common scheme or plan, the trial court must find the evidence (1) is clear and convincing and (2) bears a close degree of similarity to the crimes charged.
Daughter Two stated the abuse ended when she was fifteen years old, and she disclosed the abuse to Mother after Daughter Three's disclosure. If the trial court finds the evidence relevant, the court must then determine whether the bad act evidence is admissible under Rule 404(b) to show, inter alia, the existence of a common scheme or plan. Even if the testimony is relevant and admissible under Rule 404(b), the trial court must apply Rule 403 and exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant.
Daughter Two When asked about the first time Perry abused her, Daughter Two stated she was lying on Perry's bed watching television when he entered the room, lay down next to her, and digitally penetrated her vagina. “[W]e do not review a trial [court's] ruling on the admissibility of other bad acts by determining de novo whether the evidence rises to the level of clear and convincing.” State v. During a discussion with the trial court before the proffer, the solicitor noted that unlike with Daughter Two and Daughter Three, Perry's abuse of Newcomer “progress[ed] on into actual vaginal/penile penetration.” The solicitor acknowledged that portion of Newcomer's account of the abuse would “not be admissible because it [went] beyond the scope of similar” and could be excluded by the court pursuant to Wallace. Although Newcomer's proffered testimony regarding the abuse progressing and the penetration starting could have been a reference to sexual intercourse, it is not clear from her testimony whether sexual intercourse occurred. However, even assuming arguendo that sexual intercourse occurred and can be considered by this court, it was permissible for the trial court to redact any dissimilar portions of Newcomer's testimony in light of all of the existing similarities.
According to Daughter Two, Perry stated that if she told anyone about what had happened, she “would get in just as much trouble as he would” and would be taken away from Mother. During the proffer, Newcomer testified that Perry had digitally penetrated her numerous times and then stated the abuse progressed when she was thirteen or fourteen. Because the only information in the record about Perry and Newcomer engaging in sexual intercourse came from the solicitor, this court cannot consider that information when determining whether Newcomer's testimony was admissible under Rule 404(b).