OF CERTIORARI TO THE COURT OF APPEALS
November 30, 2016
from Charleston County J. C. Nicholson, Jr., Circuit Court
S. Luck, of Garrett Law Offices, of North Charleston, and
Chief Appellate Defender Robert M. Dudek, of Columbia, for
Attorney General Alan M. Wilson and Special Assistant
Attorney General Amie L. Clifford, both of Columbia, and
Solicitor Scarlett A. Wilson, of Charleston, for
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the Court of Appeals' unpublished decision in State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 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.
Factual and Procedural History
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
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.
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.
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
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.
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
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?
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.
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