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24778 - State v. Nelson

Davis Adv. Sh. No. 13
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State of South

Carolina, Respondent,

v.

Larry Don Nelson, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Lexington County

Julius H. Baggett, Judge

Opinion No. 24778

Heard October 22, 1997 - Filed April 6, 1998

REVERSED AND REMANDED

Jack B. Swerling, of Columbia, for petitioner.

Charles Molony Condon, Attorney General, John

W. McIntosh, Deputy Attorney General, Donald J.

Zelenka, Assistant Deputy Attorney General,

William Edgar Salter, III, Senior Assistant

Attorney General, all of Columbia; and Donald V.

Myers, Solicitor, Eleventh Judicial Circuit, of

Lexington, for respondent.

WALLER, A.J.: Petitioner Larry Don Nelson was convicted of

p.13


STATE v. NELSON

four counts of first degree criminal sexual conduct ("CSC") with a minor, and

four counts of lewd act on a minor. The victim was a three year old child.

The offenses allegedly occurred between December 1991 and June 1992, when

the victim would accompany her father to Petitioner's home (to visit

Petitioner's brother, with whom Petitioner lived). All of the offenses allegedly

occurred in Petitioner's bedroom.

Petitioner was sentenced to thirty years imprisonment for each count

of CSC, and to ten years imprisonment for each count of lewd act. The

sentences were ordered to run consecutively. The Court of Appeals affirmed

Petitioner's conviction. State v. Nelson, 322 S.C. 377, 471 S.E.2d 767 (Ct.

App. 1996). This Court granted certiorari to consider whether certain

evidence was properly admitted at trial. We find it was not, reverse

Petitioner's convictions, and remand for a new trial.

ISSUES

I. Did the trial court err in admitting certain physical evidence found in

Petitioner's bedroom?

II. Did the trial court err in admitting details of post-arrest statements

Petitioner made to police?

DISCUSSION

I. Physical Evidence

At trial, the State introduced the following evidence, consisting of

exhibits or testimony about exhibits seized from Petitioner's bedroom after his

arrest1 :

(1) Two stuffed animals, "Cookie Monster" and "Oscar the

Grouch."

(2) Testimony about some fifty-eight homemade videotapes

containing various segments taped from television

programs, including a school district's schedule of events,

"Mr. Knozit" shows, children's aerobics, cartoons, children's


1 Petitioner gave police written consent to search his residence.

p.14


STATE v. NELSON

game shows, young girls' Olympic gymnastic events, and a

"just say no"-type show teaching children about molestation.

(3) Excerpts from Grimm's Complete Fairy Tales, specifically

"The Fitcher's Bird Tale," a story about a wizard who takes

young girls from their homes (parts of which had been

underlined). Attached to the front page was a laminated

picture of a young, three to four year-old white child with

long brown hair.2 Inserted in the book elsewhere were

pictures of "Save the Children" advertisements about young

female children with brown hair. On the back of one of

these advertisements was an article entitled "Modern Day

Monsters," the subject of which was child molestation.

(4) A photo album containing a collage of magazine pictures of

young girls dressed variously in gymnastic clothes,

underwear, bathing suits, and full clothing.

(5) Petitioner's wallet, containing his driver's license (showing

his DOB as 1/4/50), a "punch-out label" containing Punky

Brewster's name, and Petitioner's membership card to the

official Punky Brewster fan club.3

(6) A picture frame containing a commercial picture of a young

white female with long brown hair, dressed in gymnastic

clothing.

(7) A laminated picture of a young white female with shoulder-

length brown hair, lying on a couch.

(8) A laminated picture on a card of a young white female with

long brown hair, wearing night clothing, apparently cut

from a magazine advertising circular.

(9) A picture frame containing two laminated pictures of the

same young white girl, apparently cut from a magazine


2 Testimony was introduced that this and other photos resembled the

victim.

3 Punky Brewster is a child celebrity, a young white female with long

brown hair.

p.15


STATE v. NELSON

advertisement, with long brown hair.

(10) One of six offered pictures of Punky Brewster.4

Petitioner argued the evidence was improper character evidence and should

be excluded.

While initially, during a motion in limine hearing, the judge thought

the offer of evidence was "ludicrous," he changed his mind after the State put

up the testimony of an expert on sexual trauma and abuse of children. In

part, this witness testified about general characteristics of pedophiles.5 She

testified pedophiles often have fantasies about taking children away from

other adults. She also testified pedophiles often "have a pretty good stash"

of childlike items, including videotapes, children's books, children's clothing,

children's toys, photographs, drawings, and pictures, in part used for sexual

gratification. When the State then moved to introduce the physical evidence

later in the trial, the judge overruled Petitioner's argument it was improper

character evidence, finding it was probative not of a "character issue" but of

a "personality characteristic."

The Court of Appeals affirmed the admission of evidence, holding that

"[w]hether or not the evidence in question incidentally reflected poorly on

[Petitioner's] character, it was relevant to show [Petitioner's] motive to

commit the crimes for which he was charged." 322 S.C. at 381, 471 S.E.2d

at 769. It then found the probative value of the evidence outweighed any

danger of unfair prejudice from its admission. Id. at 382, 471 S.E.2d at 770.

Petitioner argues error in this holding. We agree.6


4 The Court of Appeals recited a slightly different list of evidence than

this. See Nelson, 322 S.C. at 380, 471 S.E.2d at 769. Apparently, that Court

made its list from what the State contended it would introduce at the motion

in limine hearing, not what was actually introduced at trial.

5 The expert testified pedophile means "love of children." Pedophilia has

been defined as "sexual perversion in which children are the preferred sex

object." Dyer v. Commonwealth, 816 S.W.2d 647, 650 n.1 (Ky. 1991) (quoting

Webster's Ninth New Collegiate Dictionary (1983 ed.)).

6 Considering that the ultimate goal behind preservation of error rules

is to insure that an issue raised on appeal has first been addressed to and

ruled on by the trial court, we reject the State's argument that consideration

of this issue is procedurally barred under the facts of this case. Cf. State v.

p.16


STATE v. NELSON

In a criminal case, the State cannot attack the character of the

defendant unless the defendant first places his character in issue. Mitchell

v. State, 298 S.C. 186, 379 S.E.2d 123 (1989) (per curiam). In a similar vein,

evidence of other crimes or bad acts is generally inadmissible to prove the

crime charged unless the evidence tends to establish (1) motive, (2) intent,

(3) absence of mistake or accident, (4) a common scheme or plan, or (5)

identity. State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983); State v. Lyle,

125 S.C. 406, 118 S.E. 803 (1923).7 Both rules are grounded on the policy

that character evidence is not admissible "for purposes of proving that the

accused possesses a criminal character or has a propensity to commit the

crime with which he is charged." State v. Peake, 302 S.C. 378, 380, 396

S.E.2d 362, 363 (1990).

We find the evidence clearly inadmissible under these standards. As

the trial judge himself recognized, its only relevance is as it reflects on an

aspect of Petitioner's character, i.e. that he is a pedophile.8 We find the


Ross, 272 S.C. 56, 249 S.E.2d 159 (1978) (once the court rules on an objection

to a line of questioning, it is not necessary that counsel repeat the objection

after each question).

7 The substance of these common law rules has now been codified in

SCRE 404 (not in effect at the time of Petitioner's trial):

(a) Character evidence generally. Evidence of a person's

character or a trait of character is not admissible for the purpose

of proving action in conformity therewith on a particular occasion,

except: [exceptions not pertinent here].

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may,

however, be admissible to show motive, identity, the existence of

a common scheme or plan, the absence of mistake or accident, or

intent.

8 In admitting the evidence, the judge stated:

I don't think it has anything to do with impugning his character

at all. It's not a character issue. It's a personality characteristic

that is consistent with perhaps the testimony of the [expert

witness] as to the profile of what is referred to as a pedophile,

p.17


STATE v. NELSON

distinction between "character" and "personality characteristic" misplaced.

"The term 'character' refers to a generalized description of a person's

disposition or a general trait such as honesty, temperance or peacefulness.

Generally speaking, character refers to an aspect of an individual's

personality which is usually described in evidentiary law as a 'propensity.'"

State v. Smith, 617 N.E.2d 1160, 1169 (Ohio Ct. App. 1992), cert. denied, 612

N.E.2d 1244 (Ohio 1993) (internal quotation omitted) (finding testimony

regarding pedophile characteristics probative of the issue of character). See

also Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence ยง 4.11

(1995) (as used in federal rules, "character" means "a person's disposition or

propensity to engage or not engage in various forms of conduct"). Such

evidence could only invite the jury to infer Petitioner was acting in

conformity with this character trait when he committed the crimes with

which he was charged. Because this is an improper basis upon which to

determine guilt, the evidence should not have been admitted. See, e.g.,

Underwood v. State, 309 S.C. 560, 563-64, 425 S.E.2d 20, 23 (1992) (expert

testimony regarding "common profile" of people who sexually abuse children

admissible because it was offered to explain physical injuries of victim as

opposed to "personality or character traits which petitioner possessed in order

to identify him as the offender").

Several states have rejected testimony or evidence showing a defendant

is a pedophile for this exact reason. See, e.g., Turtle v. State, 600 So. 2d

1214, 1221 (Fla. Dist. Ct. App. 1992) (error in admitting expert testimony

about characteristics of pedophile because it was asking "the jury to convict

because the defendant fit a pedophile profile"); Francis v. State, 512 So. 2d

280, 282 (Fla. Dist. Ct. App. 1987) (error in admitting expert testimony that

defendant has a "personality characteristic of being attracted to children");

State v. Hester, 760 P.2d 27 (Idaho 1988) (error in admitting expert

testimony that defendant had character traits consistent with those of known

child abusers); People v. Bagarozy, 522 N.Y.S.2d 848, 853 (N.Y. App. Div.

1987) (error in admitting evidence seized from defendant's apartment

including NAMBLA9 newsletters, photographs, and films because "the true

purpose behind the introduction of this evidence was to expose defendant's

sexual preferences and attitudes in order to demonstrate a propensity to

commit the crimes charged"); Smith, 617 N.E.2d at 1160 (error in admitting


which appears to be consistent with the charges and the facts

here.

9 North American Man-Boy Love Association, which advocates sexual

activity between adults and boys.

p.18


STATE v. NELSON

expert testimony on general pedophile characteristics); Brewington v. State,

802 S.W.2d 691, 692 (Tex. Crim. App. 1991) (en banc) (reversing conviction

because "it is clear from the record that the prosecutor sought to introduce

testimony that appellant was a fixated pedophile solely to prove appellant's

propensity to molest children and that he acted in conformity therewith when

he committed the charged offense").

In Dyer, the Supreme Court of Kentucky addressed a factual scenario

very similar to the case sub judice. 816 S.W.2d 647. The defendant was on

trial for sodomizing a child under the age of twelve. The state introduced

evidence seized from the defendant's apartment, including old posters of

former teenage idols, nude pictures and articles from pornographic magazines,

a pamphlet about homosexual activity, pictures of boys cut from newspapers,

and other publications. The police officer describing the seized evidence was

allowed to testify about general pedophile characteristics, and to state that

in the search of defendant's house he was looking for any evidence that

would "relate to, ah, possible characteristics of a pedophile." Id. at 650. In

reversing defendant's conviction, the court stated:

It is obvious the real purpose, the sole purpose, of this evidence

was, in general, to prove the appellant was a sexual pervert, and,

in particular, to prove that his perversion was pedophilia, and to

do so on the basis of reading material found in his possession

some of which would offend a substantial number of jurors,

prejudicing them against the appellant without regard to whether

it proved anything against him. The various pornographic

pictures and articles and the nondescript photographs and

memorabilia were devoid of meaning except that provided by the

investigating police officer's testimony and the prosecutor's

argument labeling the material seized proof that the appellant

was a pedophile.

We declare, unqualifiedly, that citizens and residents of Kentucky

are not subject to criminal conviction based upon the contents of

their bookcase unless and until there is evidence linking it to the

crime charged. . . . If this material is supposed to provide a

picture of the appellant as a pedophile, such profile evidence is

inadmissible in criminal cases to prove either guilt or innocence.

p.19


STATE v. NELSON

Id. at 652.10

The State argues the evidence was not offered to show Petitioner's

character, but was instead admissible under Lyle to show motive, intent, and

a common scheme or plan. We disagree, finding little to no probative value

regarding any of these theories.11 Furthermore, the very apparent prejudicial


10 We have found no cases in South Carolina directly addressing the

issue involved here. Most cases even remotely similar concern the admission

of a defendant's prior sexual offenses or misconduct, as opposed to physical

evidence showing sexual preferences or tendencies, usually analyzed under

the "common scheme or plan" exception in Lyle. See, e.g., State v. Bell, 302

S.C. 18, 393 S.E.2d 364, cert. denied, 498 U.S. 881 (1990); State v. Rogers,

293 S.C. 505, 362 S.E.2d 7 (1987), overruled on other grounds, State v.

Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993); Stokes, 279 S.C. 191, 304

S.E.2d 814; State v. Rivers, 273 S.C. 75, 254 S.E.2d 299 (1979); State v.

Henry, 313 S.C. 106, 432 S.E.2d 489 (Ct. App. 1993); State v. Atkins, 309

S.C. 542) 424 S.E.2d 554 (Ct. App. 1992).

11 For the purposes of this discussion, we are assuming without so

deciding that this evidence invokes the Lyle analysis. Lyle is generally

thought of as involving evidence of a prior crime or bad act. While the

evidence introduced here connotes bad character, it is questionable whether

it is evidence of a prior "bad act." It certainly is not evidence of a prior

crime. This Court has applied Lyle to evidence not outwardly showing a

crime or bad act, but which connotes bad character. See, e.g., Mitchell v.

State, 298 S.C. 186, 379 S.E.2d 123 (1989) (applying Lyle rules to testimony

defendant was a Mafia member, as well as evidence found in defendant's

residence implying she was a devil worshiper, but which in itself was

innocuous: wax candles of little devils, devil figurines, surveillance cameras);

State v. Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983) (applying Lyle to

evidence defendant offered victim money to "meet him at the railroad

tracks"). Other cases have described Lyle without referring to "bad acts."

See, e.g., State v. Rogers, 293 S.C. 505, 362 S.E.2d 7 (1987) ("Evidence of

prior acts is generally not admissible . . . ."); State v. Bright, 323 S.C. 221,

473 S.E.2d 851 (Ct. App. 1996) ("conviction must be based on proof of the

offense for which [defendant] is accused, rather than prior immoral acts").

In any event, even if Lyle were inapplicable, the evidence would still

fall under the more general rule against attacking a defendant's character.

See, e.g., Mitchell, 298 S.C. at 186, 379 S.E.2d at 123; State v. McElveen, 280

S.C. 325, 313 S.E.2d 298 (1984). Because we find the evidence would be

p.20


STATE v. NELSON

impact such evidence would have upon a jury outweighs what probative

value, if any, it may have. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146

(1991) (even relevant and otherwise admissible evidence may be excluded for

undue prejudice).

The Court of Appeals agreed with the State's argument regarding

motive, primarily relying on our decisions in State v. Bell, 302 S.C. 18, 393

S.E.2d 364 (1990), and State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991),

cert. denied, 503 U.S. 993 (1992). Both cases are distinguishable from the

instant case.

In Bell, we held tape recordings in which Bell discussed the details of

sexual experiences he had with a prior murder victim were properly admitted

as demonstrating a possible sexual motive for kidnaping the current victim.12

Bell was not on trial for a sex crime, and the evidence showed a possible

motive for a crime that could have been committed for any number of

reasons. The evidence also involved Bell's admitting he kidnaped and

murdered the first victim (the implication being he was similarly sexually

motivated in committing that crime).

Here, Petitioner was on trial for sexual offenses; there is little doubt

the motivation for such offenses is, at least in part, sexual gratification. In

Smith, the Ohio Court of Appeals rejected a similar argument that evidence

of other sexual misconduct was admissible to show motive in committing the

charged sex crime:

[T]he motive for the alleged crimes involved in the present case

[is] apparent. A person commits or attempts to commit [a sexual

offense] for the obvious motive of sexual gratification. Since

motive can not be deemed to have been a material issue at


inadmissible under either standard, the issue of whether this is evidence of

a prior bad act or merely reflects on his character is largely academic. A

more interesting issue would be whether the same exceptions noted in Lyle

would apply to the general character rule, and thus allow into admission

evidence attacking a person's character (but not evidence of a prior crime or

bad act) if the State can show it is not being offered as propensity evidence

but as probative to some other issue. Again, we need not reach this issue

here because we find this evidence inadmissible under the exceptions

advanced by the State.

12 We also found the evidence probative of a common scheme or plan.

p.21


STATE v. NELSON

[defendant's] trial, "other acts" testimony was not admissible to

prove this matter.

. . . While the acts of which the defendant was accused would

certainly be viewed as perverted and depraved according to most

views, the motive and intent of the alleged action remain,

nevertheless, those of sexual gratification. That fact is apparent

from the charges and is not a material issue. Evidence of other

crimes, wrongs, or acts may not be introduced to prove his motive

or intent in committing the operative acts of the offenses alleged.

617 N.E.2d at 1172-73 (internal citations omitted).13

Somewhat similar reasoning has been applied regarding the issue of

intent. "In the trial of sex offenses, extrinsic evidence of intent is admissible

only in those cases where there is no challenge to the occurrence of the

physical contact itself, but the intent of the actor is at issue because the

nature of the contact is subject to varying interpretations." Bagarozy, 522

N.Y.S.2d at 854 (finding intent not an issue in case where defendant

consistently denied any sexual contact with accusers). See also State v.

Tizard, 897 S.W.2d 732, 744 (Tenn. Crim. App. 1994) (evidence of sexually

explicit videotapes and booklet, found in defendant's home, not probative of

intent: "[T]o the extent that the ultimate inference sought to be drawn by

the state, i.e., the defendant's intent to commit a sexual battery upon the

victim, must be derived from initial inferences about the defendant's

character traits circumstantially drawn from the questioned evidence, such

evidence's probative value on the ultimate inference is greatly attenuated").

Cf. State v. Millar, 871 P.2d 482 (Ore. 1994) (evidence defendant possessed

pornographic magazine of young girls probative of intent where defendant

admitted placing hand down victim's pants but claimed his intent was to

retrieve a toy, not sexual contact).

Here, Petitioner denied any sexual contact with the victim, making it


13 Johnson is even more readily distinguishable. That case also involved

the admission of evidence of a prior murder. We held evidence the defendant

had murdered someone and hidden the body in the vehicle he was driving

tended to establish his motive for killing a state trooper who stopped him for

a driving violation. 306 S.C. at 125, 410 S.E.2d at 551. The evidence was

not admitted to show that because the defendant had killed before, he was

a "killer" and in shooting the state trooper was merely acting in conformity

with this characteristic.

p.22


STATE v. NELSON

highly questionable whether the element of intent was a material issue in the

case. We find the State's argument this evidence was relevant to show

motive or intent is merely a cleverly disguised way of asserting Petitioner

committed the crimes because he has a propensity to commit sexual offenses.

See Stokes, 279 S.C. at 193, 304 S.E.2d at 815 (judge's instruction that

evidence was being admitted to show the "inclination of the defendant to do

that" was erroneous because "the rationale for excluding evidence of prior

'bad acts' is to prevent the jury from considering an accused's inclinations

rather than his actual conduct in the incident before the court"). 14

Equally unpersuasive is the State's argument the evidence was

admissible as part of the res gestae. See State v. Hough, ____ S.C.____, 480

S.E.2d 77 (1997) ("One of the accepted bases for the admissibility of evidence

of other crimes arises when such evidence furnishes part of the context of the

crime or is necessary to a full presentation of the case"). We find this

evidence was not necessary to provide a complete picture of the crime or the

context in which it occurred. See State v. Lachterman, 812 S.W.2d 759, 767

(Mo. Ct. App. 1991), overruled on other grounds, State v. Bernard, 849

S.W.2d 10 (Mo. 1993) ("complete picture" exception "seldom has application

in child sexual abuse cases").

In State v. Melcher, 678 A.2d 146 (N.H. 1996), the defendant

challenged the admission of evidence of prior bad acts he allegedly committed


14 We find the common scheme or plan argument patently without merit.

There was absolutely no allegation Petitioner molested another person. We

also find unpersuasive the State's argument the evidence was admissible

because it corroborated the expert witness's testimony regarding pedophile

characteristics. While both the expert testimony and the evidence tended to

prove the State's theory Petitioner was a pedophile, the latter did not

corroborate the former. "Corroborate" is defined as "[t]o strengthen; to add

weight or credibility to a thing by additional and confirming facts or

evidence." "Corroborating evidence" is defined as "[e]vidence supplementary

to that already given and tending to strengthen or confirm it. Additional

evidence of a different character to the same point." Black's Law Dictionary

344 (6th ed. 1990) (emphasis added).

The expert's testimony was limited to describing general pedophile

characteristics. The contested evidence went to whether Petitioner was a

pedophile, a point never addressed by the expert. The contested evidence

would not have corroborated the expert's testimony unless the expert testified

she thought Petitioner was a pedophile.

p.23


STATE v. NELSON

with the victim. The New Hampshire Supreme Court noted that in analyzing

whether evidence is relevant under Rule 404(b), 15 it "must tend to prove or

disprove an issue actually in dispute, without relying upon forbidden

inferences of predisposition, character, or propensity. In other words, no link

in the chain of inferences justifying relevance can be derived from the prior

conduct's tendency to show character or disposition." Id. at 149 (internal

citations omitted) (emphasis supplied).

Melcher first rejected the argument the evidence was relevant to show

a common scheme or plan, stating, "For prior sexual misconduct to be

relevant to show that the defendant had a plan, the mutual dependence

between the prior conduct and the charged act still must be divorced from

any actual or implicit reliance on the defendant's character." Id. at 150. It

then rejected the argument the evidence was relevant to show the context in

which the crime occurred (i.e. "res gestae"), finding the term "context" to be

"merely a synonym for propensity."

To infer from this [evidence] . . . an understanding of how the

charged act could have occurred, we must necessarily assume

that the defendant acted on the occasion of the charged act in

conformity with his prior conduct; this "assumption is the

inescapable link between the charged and uncharged crimes."

When, in this manner, an assumption based upon the defendant's

propensity toward certain action is the essential connection in the

inferential chain supporting relevance, the evidence is

inadmissible. . . .

Id. (internal citations omitted). We find this reasoning applicable here: the

evidence is only relevant to show the "context" of the crime when the

assumption is made that Petitioner was acting in conformity with the

character trait of being a pedophile. Again, this argument is but another

cleverly disguised way of getting impermissible character evidence before the

jury.16


15 Rule 404(b) of the New Hampshire Rules of Evidence is substantially

similar to SCRE 404(b), see supra note 7, and contains the same general

exceptions enunciated in Lyle.

16 In spite of the ban on character or propensity evidence, some states

have nonetheless admitted evidence of collateral sexual crimes or sexual bad

acts in sex offense cases, carving out specific exceptions they variously term

"lustful disposition," "depraved sexual instinct," or the like. See, e.g., State

p.24


STATE v. NELSON
v. Roscoe, 910 P.2d 635 (Ariz.) (en banc), cert. denied, 117 S. Ct. 150 (1996)

(recognizing specific exception to general rule disallowing evidence of other

bad acts to show bad character when acts involve "sexual aberration" to show

propensity to commit a similar crime); Caldwell v. State, 436 S.E.2d 488, 492

(Ga. 1993) (allowing admission of four adult movies found in defendant's

apartment because it showed defendant's "bent of mind toward the sexual

activity with which he [is] charged and his lustful disposition," regardless of

whether it also incidentally reflected on character); State v. Chapman, 683

So. 2d 1236, 1240 (La. Ct. App. 1996), cert. denied, 700 So. 2d 505 (La. 1997)

(pornographic pictures of teenagers admissible to demonstrate defendant's

(unnatural interest in young females"); Mitchell v. State 539 So. 2d 1366

(Miss. 1989) (evidence of other sexual relations between defendant and victim

admissible to show lustful, lascivious disposition toward that particular

victim); Findley v. State, 577 P.2d 867, 868 (Nev. 1978) (admitting evidence

showing possession of "specific emotional propensity for sexual aberration");

State v. Reeder, 413 S.E.2d 580 (N.C. Ct. App.), cert. denied, 417 S.E.2d 68

(N.C. 1992) (evidence of prior sexual offenses admissible to show defendant's

unnatural lust, intent or state of mind"); State v. Edward Charles L., 398

S.E.2d 123 (W. Va. 1990) (evidence of collateral acts or crimes admissible in

child sexual abuse cases to show perpetrator had a lustful disposition).

South Carolina has not recognized such an exception, nor are we

inclined to do so. Other states have similarly resisted this urge to make

exception for one class of crimes. "Given the emotionally charged nature of

the crime, there exists a natural temptation to regard Rule 404(b) differently

when a defendant has been indicted for sexual assault.... But the fairness

and due process concerns underlying Rule 404(b) are no less pertinent in

sexual assault cases . . . ." Melcher, 678 A.2d at 149. See also Tizard, 897

S.W.2d at 744 (noting Tennessee's refusal to adopt a sex crime or acts

exception); State v. Bernard, 849 S.W.2d 10 (Mo. 1993) (en banc) (refusing to

adopt a "depraved sexual instincts" exception).

In Lannan v. State, the Supreme Court of Indiana decided to abandon

its "depraved sexual instinct" exception in favor of a more general analysis

under FRE 404(b). 600 N.E.2d 1334 (Ind. 1992) (noting approximately

twenty other states have or have had such exceptions). In doing so, it noted

the traditional rationale for this type of exception is twofold: (1) that "acts

showing a perverted sexual instinct are circumstances which . . . may have

a tendency to connect an accused with a crime of that character;" and (2) the

need to bolster victim testimony "which describe[s] acts which would

otherwise seem improbable standing alone." Id. at 1335. While assuming

p.25


STATE v. NELSON

"A necessary corollary to the presumption of innocence is that a

defendant must be tried for what he did, not for who he is." Melcher, 678

A.2d at 151. We hold the evidence in this case was inadmissible as improper

character evidence.

II. Police Statements

Petitioner argues post-arrest statements he made to police were

erroneously admitted into evidence. We agree. 17

At trial, Sergeant Belk testified when he and Detective Frazier went

to interview Petitioner, he requested that Sergeant Belk come back another

time without Detective Frazier because he was uncomfortable around adult

women. When Belk came back later alone, Petitioner told him he had

fantasies about children. Detective Frazier testified to essentially the same

thing. No written statement was admitted into evidence. The trial judge

overruled Petitioner's objection to any testimony "concerning any fantasies or

likes or dislikes of females."

Generally, only those parts of a confession or statement made to police

which are relevant and material to the crime charged should be received into

evidence. State v. Gamble, 247 S.C. 214, 146 S.E.2d 709 (1966), overruled

on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). For

the same reasons as discussed supra in Issue I, we find Petitioner's general

sexual attitudes were not relevant or material to the crime charged because

they were admitted to show character. See, e.g., Stevens v. State, 748 P.2d

771, 774 (Alaska Ct. App. 1988) (error, in trial for attempted sexual abuse

of a minor, in admitting defendant's statements to police regarding his sexual

fantasies about homosexuality and children because it was "relevant, if at all,


recidivism among sexual offenders may be high, it pointed out that equally

high was recidivism among, for example, drug offenders. Yet no exception

for character evidence was carved out for drug offenses. Further, it found the

need to bolster victim testimony not as great because of our current, "more

jaded" society's willingness to believe sexual offenses occur. Thus, it held

evidence of prior sexual misconduct would only be admissible if it fit into one

of the "Lyle"-type exceptions under the general rule prohibiting such evidence.

17 The Court of Appeals did not rule on this issue, although it was

raised to them and Appellant argued it in his petition for rehearing.

p.26


STATE v. NELSON

only to show [defendant's] propensity to commit a sex crime); Erickson v.

State, 565 So. 2d 328, 330-31 (Fla. Dist. Ct. App. 1990), cert. denied, 576 So.

2d 286 (Fla. 1991) (error in admitting defendant's statements to psychiatrist

regarding sexual fantasies about female children). Therefore, the judge

committed error in allowing the jury to hear these statements.

For the foregoing reasons, we find it was error to admit the above

evidence and testimony.18 The opinion of the Court of Appeals affirming

Petitioner's conviction is therefore reversed and the case is hereby remanded

for a new trial.

REVERSED AND REMANDED.

BURNETT, A.J., Acting Associate Justices George T. Gregory Jr.,

and Thomas W. Cooper Jr., concur. MOORE, A.C.J., dissenting

in separate opinion.


18 Under the circumstances of this case, we cannot find these errors

harmless beyond a reasonable doubt, as would be required in order to affirm

Petitioner's conviction. Whether the admission of this evidence subsequently

affected defendant's trial strategy and/or testimony is not for this Court to

opine. See e. g. State v. Smith, 309 S.C. 48, 419 S.E.2d 816 (1992); State v.

Singleton, 303 S.C. 313, 400 S.E.2d 487 (1991) (refusing to find error

harmless where there was not overwhelming evidence of guilt).

p.27


STATE v. NELSON

MOORE, A.C.J.: I respectfully dissent. I would affirm

petitioner's convictions.

Unlike the majority, I would not summarily reject the State's

argument that consideration of the admission of the evidence is

procedurally barred. I would hold petitioner did not preserve his

objections to the items introduced into evidence. The majority relies upon

State v. Ross 272 S.C. 56, 249 S.E.2d 159 (1978), which holds an objection

to a line of questioning is sufficient to object to a particular question. In

my opinion, the separate and distinct introduction of several items is

entirely different.

During trial, petitioner objected to the introduction of the

homemade videotapes described in the majority opinion and the trial judge

overruled petitioner's objection by stating he was "going to allow the

subject of theses tapes to be mentioned without introducing the tapes."

Petitioner also objected to a photo album containing pictures from

magazines of young girls, some dressed in bathing suits, underwear, and

gymnastic clothes. Further, petitioner objected to the statements which he

made to the police.1a

Petitioner, however, did not object to the introduction of his

wallet containing his Punky Brewster fan club membership, a photograph

of Punky Brewster which had been displayed in his room, and numerous

photographs of young girls found in his room. A police officer also

testified, without objection, that numerous other items of the same type

were seized which were not introduced into evidence.

Here, the challenged evidence goes to the same issue regarding

petitioner's character as the evidence admitted without objection. State v.

Sebasky, 547 N.W.2d 93 (Minn. 1996)(although bulletins from organization

advocating sexual relationships between men and boys should not have

been admitted, defendant was not prejudiced when other sexually related

evidence - e.g. homosexual magazines; dildos; and four sexually explicit


1a Petitioner objected to the introduction of the Grimm's Complete

Fairy Tales without stating any ground. Thus, this objection is not

preserved. "A general objection which does not specify the particular

ground on which the objection is based is insufficient to preserve a

question for review." State v. Bailey, 253 S.C. 304, 170 S.E.2d 376

(1969)(trial judge commits no error in overruling general objection).

p.28


STATE v. NELSON

videos of homosexuals - was introduced). Accordingly, I would hold the

admission of the videotapes, photo album, and his statements was

harmless because they are merely cumulative to other evidence admitted

without objection. State v. Rochester, 301 S.C. 196, 391 S.E.2d 244

(1990).

Further, petitioner's own testimony is much more damning

than the evidence introduced by the State. "Pedophile" is defined in the

majority opinion as someone who has a "sexual perversion in which

children are the preferred sex object." Petitioner's own testimony

establishes he is a pedophile.

Petitioner testified on direct examination he had told the police

officers he likes young girls. He further stated, "My intention was to say

that I like young girls and, yes, Amber could possibly be one of those. I

didn't mention that Amber was one of those. I said - - I told him when I

was telling him about where my tapes and these pictures were, I was

telling him that I do like young girls. That's my problem . . . ." Referring

to the videotapes which he possessed, petitioner stated that the subject of

the tapes were young girls ranging in age from about 8 or 9 up to 22 or

23. He further stated he did not like 18 year-old-girls because he

considered that grownup.

On direct examination, he also testified that "when you get

down to around four or five, three years old, you kind of have to force

yourself to fantasize about them. So, you don't even fantasize about them

often . . ." When asked on direct examination if he had any thoughts of

doing anything to Amber, he replied: "No. I tried one time. I started one

time. A thought come into my mind and I was going to let it go like I do

any other time, but the first thing that came into my mind was her

mother's face, and there was no more to it . . ."

On cross-examination, the solicitor asked petitioner about a

videotape he had introduced of his bedroom. Petitioner stated his pictures

of "the little girls" and Punky Brewster were missing. He then elaborated

and stated one picture of a young girl was not displayed in the tape and

he used it for "sexual purposes" and his "sexual desire for [her]." Later,

during cross-examination he admitted that the album was for sexual

fantasies. In fact, he admitted "almost 99 percent of everything besides

[Punky Brewster] as far as theses pictures and things, that is sexual." He

stated only the Grimm's Complete Fairy Tales book and the "Save the

Children" advertisement were accidental or coincidental.

p.29


STATE v. NELSON

I also note petitioner never objected to the expert witness's

testimony regarding the general characteristics of a pedophile. Further,

there was additional evidence about petitioner's behavior introduced,

without objection, which when looked at along with the expert's testimony

implied petitioner was a pedophile. Amber's mother testified without

objection that petitioner gave Amber numerous gifts, including candy, an

umbrella, a lunch box, a nightgown, stuffed animals, and cartoon tapes.

Accordingly, I would affirm.

p.30