April 11, 2017
From Greenville County Edward W. Miller, Circuit Court Judge.
Brown Rupert, of Murphy & Grantland, PA, and Chief
Appellate Defender Robert Michael Dudek, both of Columbia,
Attorney General Alan McCrory Wilson and Assistant Attorney
General Vann Henry Gunter, Jr., both of Columbia; and
Solicitor William Walter Wilkins, III, of Greenville, for
Steve Perry appeals his convictions for two counts of
first-degree criminal sexual conduct (CSC) and two counts of
second-degree CSC. 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. We affirm.
1993, Perry met and began dating Laura Jones (Mother). Perry
and Mother had two sets of twins: Daughter One and Daughter
Two born in 1994 and Daughter Three and Son born in 1996.
After Mother and Perry separated in August 2000, they agreed
Perry would have visitation with the children on weekends and
holidays. 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. Mother later contacted the Department of
Social Services (DSS) to report the abuse, and DSS reported
the incident to the Greenville Police Department. Perry was
subsequently indicted for two counts of first-degree CSC and
two counts of second-degree CSC. His trial was held in
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. The State
proffered this testimony under Rule 404(b), SCRE, as evidence
of a common scheme or plan. 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." However, 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 State v. Wallace.
the proffer, Newcomer testified her mother married Perry when
Newcomer was five years old. She stated that when she was
nine years old, Perry entered her room one night and
digitally penetrated her vagina. 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 testified the abuse progressed when she was
thirteen or fourteen. She stated, "One incident, I had
two friends over. He snuck into my bedroom. The penetration
and everything started. 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.
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. Newcomer told her mother
about the abuse when she was fourteen years old, and her
mother divorced Perry shortly thereafter. When asked why the
case did not go to trial, Newcomer stated she had told her
mother she did not want to go to court because she was afraid
Perry would kill her family.
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. In response, Perry
contended Newcomer's testimony was inadmissible
propensity evidence. When the court inquired whether DSS had
any records of Perry's abuse of Newcomer, the State said
it had some records that indicated the allegations were
investigated. However, the State noted Perry was not tried
for the charges of abuse against Newcomer because, at the
time, Newcomer was pregnant, she suffered from some mental
health issues, and there were concerns that the defense would
characterize her as sexually promiscuous. As a result, Perry
completed a pretrial intervention program and did not admit
any guilt. After hearing the proffer and the parties'
arguments, the trial court decided to reserve its ruling on
whether Newcomer would be permitted to testify.
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. 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. When asked to describe the abuse, Daughter Three
recalled Perry digitally penetrating her vagina about five
times but stated the abuse did not progress beyond that.
According to Daughter Three, the abuse occurred when she was
around ten or eleven years old.
the abuse ended, Daughter Three continued visiting Perry on
the weekends until she disclosed the abuse when she was
around sixteen years old. Daughter Three explained that she
waited to tell Mother what was going on because Perry had
told her "that if we told anybody, we would be the ones
who got in trouble and [would] get taken away from my
mom." Daughter Three stated she initially disclosed the
abuse to her youth group leader, who encouraged her to tell
subsequently testified. She stated Perry first molested her
when she was between five and seven years old. 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. 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. Daughter Two testified that after the first
incident, Perry began molesting her almost every weekend
during visitation. She stated that around five or six a.m. on
Saturday and Sunday mornings, Perry would get in the bed
Daughter Two shared with her sisters or lie on the floor next
to the bed and digitally penetrate her. Daughter Two
testified she never tried to wake up her sisters because she
was scared they would tell Mother.
Two recalled Perry moved into a two-bedroom apartment in
2007, where she shared a room and a bed with Daughter Three,
Perry shared a room with Son, and Daughter One slept on the
couch. Daughter Two testified Perry continued digitally
penetrating her in the early morning hours at the new
apartment; however, the abuse also progressed to oral sex on
two occasions. 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. Daughter Two stated the abuse ended when she
was fifteen years old, and she disclosed the abuse to Mother
after Daughter Three's disclosure.
beginning the second day of trial, the trial court informed
the parties that after considering Newcomer's proffer, it
was inclined to allow her to testify. Perry again objected,
arguing Newcomer's testimony was prejudicial and would
confuse the jury. He further argued Newcomer's testimony
was inadmissible to show a common scheme or plan because it
was not similar enough to Daughter Two's and Daughter
Three's testimony. Additionally, Perry argued he could
not determine whether Newcomer had changed her story about
the abuse because the records from the solicitor's office
relating to the previous charges against him had been
destroyed. The trial court subsequently found there was clear
and convincing evidence that the prior bad act had occurred
and Newcomer's testimony was probative and admissible
under the 404(b) exception.
testimony before the jury was substantially similar to her
proffered testimony, including that (1) the abuse began when
she was nine years old and ended when she was fourteen; (2)
Perry was her stepfather at the time of the abuse; (3) the
abuse typically occurred in her bedroom, except for one
incident when she was fourteen when Perry bathed her; (4)
Perry told her that if she disclosed the abuse, no one would
believe her and her accusations would hurt the family; and
(5) the abuse typically consisted of digital penetration.
However, Newcomer added that the abuse had progressed to oral
sex one time, which she failed to specifically discuss in her
proffer. She also estimated Perry had digitally penetrated
her five times, rather than the estimate of twenty she made
during the proffer.
State also called Dr. Nancy Henderson, a pediatrician for
Greenville Health System, to testify. After being qualified
as an expert in the field of pediatric medicine and child
sexual assault examinations, Dr. Henderson testified about
examining Daughter Two and Daughter Three after they
disclosed the sexual abuse. Dr. Henderson stated that before
the examinations, she spoke to Daughter Two and Daughter
Three about what had occurred.
her discussion of her examination of Daughter Three, Dr.
Henderson testified the results were normal and noted
"[i]t would have been very unlikely . . . to find
anything on the exam" because of the delayed disclosure.
Dr. Henderson was subsequently asked whether her findings
were consistent with Daughter Three having experienced sexual
abuse. She responded, "Yes." Perry objected,
arguing Dr. Henderson was improperly vouching for Daughter
Three. The trial court noted the issue was "close";
however, it ultimately overruled the objection, stating Dr.
Henderson had merely "testified that [her] findings were
the State rested, Perry took the stand and denied molesting
Daughter Two and Daughter Three. At the conclusion of the
trial, the jury found Perry guilty of all charges. The trial
court sentenced Perry to concurrent sentences of thirty
years' imprisonment for each conviction of first-degree
CSC and twenty years' imprisonment for each conviction of
second-degree CSC. This appeal followed.
the trial court err in finding Newcomer's testimony was
admissible as evidence of a common scheme or plan?
the trial court err in finding Dr. Henderson did not
improperly comment on the veracity of Daughter Three's
criminal cases, an appellate court may review only errors of
law. State v. Baccus,367 S.C. 41, 48, 625 S.E.2d
216, 220 (2006). "The 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." State v.
Saltz,346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001). An
abuse of discretion occurs when the decision of the trial
court is controlled by ...