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State v. Perez

Supreme Court of South Carolina

June 6, 2018

The State, Respondent/Petitioner,
Venancio Diaz Perez, Petitioner/Respondent. Appellate Case No. 2015-001576


          Heard November 30, 2016

          Appeal from Charleston County J. C. Nicholson, Jr., Circuit Court Judge.

          Jason S. Luck, of Garrett Law Offices, of North Charleston, and Chief Appellate Defender Robert M. Dudek, of Columbia, for Petitioner/Respondent.

          Attorney General Alan M. Wilson and Special Assistant Attorney General Amie L. Clifford, both of Columbia, and Solicitor Scarlett A. Wilson, of Charleston, for Respondent/Petitioner.


         We granted cross-petitions for a writ of certiorari to review the Court of Appeals' unpublished decision in State v. Perez, Op. No. 2015-UP-217 (S.C. Ct. App. filed May 8, 2015), wherein the court determined: (1) the trial court's refusal to admit testimony of a witness' U-visa[1] application was harmless error; (2) the trial court properly admitted evidence of prior bad acts Venancio Diaz Perez committed against another minor; and (3) Perez's sentence was vindictive and a violation of due process. We reverse the Court of Appeals' decision and remand for a new trial.

         I. Factual and Procedural History

         Perez was indicted on charges of criminal sexual conduct with a minor and lewd act on a minor for acts committed on a child ("Minor 1") whom his wife babysat in their residence. Prior to trial, the judge held an in camera hearing to determine whether to allow another child ("Minor 2"), who Perez's wife also babysat, to testify at trial regarding acts of sexual abuse Perez allegedly committed against Minor 2. After hearing testimony from both children, the trial court decided to allow Minor 2 to testify pursuant to State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009).[2]

         At trial, Minor 1 testified to six incidents involving Perez. Minor 1 described two similar incidents wherein she went into one of the bedrooms to retrieve her PlayStation Portable at which time Perez grabbed her, pulled her into the closet, and began touching her. In the first incident, Minor 1 alleged Perez "put his hands under [her] clothes and stuck his finger inside of [her]." In the second, Minor 1 stated Perez touched her "front" and "bottom, " but, unlike the first incident, there was no digital penetration. Minor 1 also described another incident in which Perez touched her "front" and "bottom" after she hid in a closet during a game of hide-and-seek. Like the second encounter, there was no penetration. In the fourth encounter, Minor 1 testified that while Perez's children were standing in front of the television "acting famous, " Perez situated himself in an area of the room so that no one else could see, pulled his pants down, and showed Minor 1 his privates. In another, Minor 1 claimed Perez touched her chest and "front" and bit her on her breasts after she helped him hang wallpaper in the bathroom. In the last incident, Perez began chasing Minor 1 while she was watching a movie so she hid under a bed so that he could not reach her.

         On cross-examination, Minor 1 admitted she told her therapist Perez never pulled her into the closet or digitally penetrated her during the first encounter because Perez's children walked in before anything could happen. Minor 1 also stated she did not mention the incident of Perez chasing her under the bed in her movie narrative with her therapist in which she proclaimed to have disclosed everything that occurred between her and Perez. Nor did she include the incident of Perez biting her chest, but testified she nevertheless disclosed that encounter with her therapist. Additionally, at trial, the State asked Minor 1 whether she was wearing a bra at the time of the wallpaper incident. Minor 1 answered "No, " explaining she was too young to wear a bra at that time. On cross-examination, however, Minor 1 stated she told her therapist that she was wearing a bra during one of the encounters with Perez.

         Minor 2 subsequently testified to two incidents of sexual abuse involving Perez. In one incident, Minor 2 testified she was in one of the bedrooms lying down when Perez got on top of her and touched her on her "top and bottom privates." In the other, Minor 2 stated she fell asleep on the couch in the living room watching a movie and Perez came up behind her and touched her on her "front private."[3]

         In addition to Minor 1 and Minor 2, the State called the mother of Minor 1 ("Mother 1") and the mother of Minor 2 ("Mother 2") to testify. On cross-examination, Mother 1 stated she came to the United States from Mexico illegally in 2000. After Minor 1 reported the abuse, the victim advocate informed Mother 1 about U-visas and directed Mother 1 to an attorney who could assist her in filing an application. As a result of submitting her U-visa application, Mother 1 testified she became eligible for food stamps, which she now receives. Moreover, without the U-visa application, Mother 1 explained she would be considered an illegal immigrant and would be at risk of being deported.

         Defense counsel attempted to elicit similar testimony from Mother 2, who was also in the country illegally, but the trial court refused to admit testimony concerning Mother 2's U-visa application, stating:

I let you go into the visa and the legal status [of Mother 1] because she was the mother of the victim. I'm not going there with this witness. That has nothing to do with this case. I don't think it has anything to do with bias or anything and we're not going there, okay?

         Nevertheless, the trial court permitted defense counsel to proffer the following testimony outside the presence of the jury: Mother 2 learned about U-visas from an information sheet she received at the Lowcountry Children's Center when her daughter was being examined; Mother 2 had applied for a U-visa with the assistance of an attorney; and, unlike Mother 1, Mother 2 had not applied for any government benefits.

         At the conclusion of the trial, the jury returned a verdict of not guilty of criminal sexual conduct with a minor, but ultimately found Perez guilty of lewd act on a minor and of assault and battery of a high and aggravated nature ("ABHAN"). The trial court sentenced Perez to fifteen years for the lewd act on a minor conviction and to a consecutive ten years for the ABHAN conviction with credit for time served. Perez subsequently objected, arguing the sentence was vindictive and punishment for exercising his ...

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