THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
James Barney Warren, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Dorchester County
Luke N. Brown, Jr., Circuit Court Judge
Opinion No. 25160
Heard November 17, 1999 - Filed June 26, 2000
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott and
Assistant Attorney General G. Robert Deloach, III,
all of Columbia; and Walter M. Bailey, Jr., of
Summerville, for petitioner.
Assistant Appellate Defender Robert M. Pachak, of
Office of Appellate Defense, of Columbia; and Francis
X. McCann, of Charleston, for respondent.
PER CURIAM: This case is before the Court on a writ of
certiorari to review the Court of Appeals' decision in State v. Warren, 330
S.C. 584, 500 S.E.2d 128 (Ct. App. 1998). We reverse.
Respondent was convicted of second degree criminal sexual
conduct with a minor, his stepdaughter Christy. During Christy's cross-
examination, respondent's counsel elicited the fact that respondent had also
allegedly sexually abused Christy's sister Brandy. When the State
attempted to exploit this information, respondent's objection was sustained
and a curative instruction was given. Never-the-less, respondent's counsel
continued to elicit information about Brandy's allegations, and the State
continued to exploit these opportunities and others. Respondent's counsel
objected to some, but not all, of the solicitor's questions. 1
At the close of the evidence, respondent's counsel asked for an
instruction telling the jury not to consider prior bad acts as proof of the crime
with which respondent was charged. The judge declined to give the charge,
and respondent appealed. The Court of Appeals addressed this issue by
reviewing numerous appellate decisions, some involving the use of prior bad
acts as impeachment evidence 2 and others where the prior bad act was
admitted under Lyle 3 as substantive proof that the defendant had committed
the crime charged. 4 The Court concluded the evidence of the alleged assault
on Brandy must have been admitted as substantive evidence under Lyle, and
therefore the limiting instruction should have been given pursuant to State
v. Timmons, 327 S.C. 48, 488 S.E.2d 323 (1997). We disagree.
The fundamental problem with this case is that the "bad act"
2 e.g., State v. Brown, 296 S.C. 191, 371 S.E.2d 523 (1988).
3 State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
4 e.g., State v. Nix, 288 S.C. 492, 343 S.E.2d 627 (Ct. App. 1986).
evidence was not presented by the State as substantive evidence of guilt,
nor was it introduced by the State in an attempt to impeach respondent's
character. Instead, it was introduced largely through the questioning
conducted by respondent's attorney. While we appreciate the efforts of the
Court of Appeals to find an avenue affording respondent relief, it simply
cannot be done on this record. We express no opinion whether respondent
may be entitled to relief in a collateral proceeding. Accordingly, the opinion
of the Court of Appeals is