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She stated that when she was nine years old, Perry entered her room one night and digitally penetrated her vagina. Then he got up and left.” Newcomer testified that around that time, Perry also came into the bathroom while she was taking a bath and “had to bathe [her] before [she] could go.” She stated the abuse ended when she was fourteen. Our supreme court also approved of trial courts redacting “dissimilar particulars of sexual conduct to avoid unfair prejudice to the defendant.” Id. 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. During the trial, Daughter Three testified that after Mother and Perry separated, Perry moved into a three-bedroom apartment and she shared a room and an air mattress with Daughter One and Daughter Two. Focusing on the contents of the witness's testimony, our supreme court found the testimony amounted to “evidence of a prior drug transaction” and determined the issue of the witness's credibility was for the jury's consideration. Here, the trial court found there was clear and convincing evidence that the prior bad act had occurred. “When determining whether evidence is admissible as [part of a] common scheme or plan, the trial 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.” Wallace, 384 S. The abuse also occurred at night or early in the morning when the victims were in bed. Rule 403 states, in pertinent part, “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 ․” “[E]ven though we have already considered, pursuant to Rule 404(b), whether the similarities outweighed the dissimilarities, we must now reconsider the similarities and dissimilarities, as well as temporal remoteness and other factors, pursuant to Rule 403 ․” Scott, 405 S. According to Daughter Three, around five or six o'clock in the morning, Perry would come into the bedroom Daughter Three shared with her sisters and would get in bed with them. During the proffer, Newcomer provided a detailed description of the abuse, including where and when the abuse occurred and specific details of the sexual battery. In terms of threats, we note that Newcomer testified Perry told her that no one would believe her and that her accusations would hurt the family, while the threats to Daughter Two and Daughter Three focused on the fact that they would get into trouble and would be taken away from Mother. Mother later contacted the Department of Social Services (DSS) to report the abuse, and DSS reported the incident to the Greenville Police Department. As noted above, the only information in the record about Perry and Newcomer engaging in sexual intercourse came from the solicitor during a discussion with the trial court before the proffer; Newcomer never explicitly testified intercourse occurred. Perry also contends the prior bad act testimony was inadmissible under Rule 403 because there was an issue regarding whether the prior bad act actually occurred. Perry was subsequently indicted for two counts of first-degree CSC and two counts of second-degree CSC. Before the trial began, the State proffered the testimony of Brandy Newcomer, Perry's stepdaughter from a prior marriage, regarding abuse Perry allegedly inflicted on her. Therefore, the trial court was not permitted to consider this information. We are cognizant of the fact that Perry was never convicted of the prior bad act; however, as stated above, the trial court correctly found there was clear and convincing evidence that the prior bad act occurred. Nonetheless, the trial court does not necessarily err when it permits testimony about a bad act occurring many years prior to the charged crime.
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. Kerri Brown Rupert, of Murphy & Grantland, PA, and Chief Appellate Defender Robert Michael Dudek, both of Columbia, for Appellant. Although the prior bad act occurred seven to nine years before the abuse of Daughter Two and fourteen or fifteen years before the abuse of Daughter Three, we do not believe this gap diminishes the probative value of Newcomer's testimony, especially when considering the fact that Daughter Two and Daughter Three were not born until approximately two and four years, respectively, after the abuse of Newcomer ended. “Specifically, it is improper for a witness to testify as to his or her opinion about the credibility of a child victim in a sexual abuse matter.” State v. Attorney General Alan Mc Crory Wilson and Assistant Attorney General Vann Henry Gunter, Jr., both of Columbia; and Solicitor William Walter Wilkins, III, of Greenville, for Respondent. Furthermore, the similarities between the prior bad act and the charged crimes outweigh the dissimilarities, and the dissimilarities do not result in the danger of unfair prejudice substantially outweighing the probative value. E.2d at 244 (stating “[t]he admission or exclusion of evidence is left to the sound discretion of the trial [court],” and the court's “decision will not be reversed on appeal absent an abuse of discretion”). Improperly Commenting on Veracity of Testimony Perry argues the trial court erred in finding Dr. According to the State, Newcomer's testimony was proper under the common scheme or plan exception of Rule 404(b) because of the similarities between Perry's abuse of Newcomer and his abuse of Daughter Two and Daughter Three. Specifically, the court noted the similarities included the defendant's “relationship to the victims (his stepdaughters), abuse beginning at about the same age, abuse occurring in the family home when the mother was absent, and an admonishment not to tell because no one would believe it.” Id. In terms of his first argument regarding the victims' ages, we acknowledge the victims' abuse did not occur for an identical length of time or at the exact same ages: (1) Newcomer stated she was abused between the ages of nine and fourteen; (2) Daughter Three testified she was ten or eleven years old when Perry abused her; and (3) Daughter Two stated the abuse began when she was between five and seven years old and ended when she was fifteen years old. Evidence is unfairly prejudicial if it has an undue tendency to suggest a decision on an improper basis. In response, Perry contended Newcomer's testimony was inadmissible propensity evidence. The Wallace court noted there was a difference in the type of sexual battery inflicted on the victim and her sister. The victim testified the defendant had touched her breasts and had digitally penetrated her before she reported the abuse. There was a discrepancy regarding when Daughter Two was first abused—Daughter Two stated the abuse could have begun when she was five years old but explained that she remembered Perry first sexually abusing her when she was seven years old.