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2004-UP-197 - State v. Brown

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Worley Lee Brown,        Appellant.


Appeal From Anderson County
J. C. Buddy Nicholson, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-197
Submitted February 9, 2004 – Filed March 25, 2004.


AFFIRMED


H.W. Pat Paschal, Jr., of Greenville and L. Patrick Mulligan, of Dayton, Ohio, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Druanne Dykes White, of Anderson, for Respondent.

PER CURIAM:  Worley Lee Brown was indicted on one count of first-degree criminal sexual conduct with a minor and one count of committing or attempting a lewd act upon a child under the age of sixteen.  He was convicted on the second charge and sentenced to fifteen years incarceration, suspended upon service of ten years and five years probation.  He raises several issues on appeal.  We affirm. [1]  

FACTS

Victim, a ten-year-old female, was spending the night at the home of Worley Lee Brown and his wife, Annie Brown.  Victim wanted to play a computer game, and Brown agreed to help her.  Annie walked up to them while they were playing the game and saw Brown’s hand on Victim’s genital area.  Upon seeing this, Annie became upset and told Brown to leave the house.  

The incident was reported to Rusty Garrett, an investigator with the Anderson County Sheriff’s Department.  With Investigator Jami Brothers, Garrett interviewed Victim at her school.  Brown was indicted following the investigation. 

Brown voluntarily submitted to a polygraph examination.  During an interview before the examination, Brown stated Victim had put his hand down her panties immediately before Annie walked up, and admitted there was a possibility that his finger penetrated Victim’s vagina. 

At trial, Victim testified Brown had touched her breasts and her vagina. 

The State then called Dr. Horace Smith, a pediatrician and expert in child sexual assault who had examined Victim.  When the State asked Dr. Smith what Victim had given him as far as background or history, Brown objected.  Outside the jury’s presence, Brown’s attorney argued: 

Your Honor, according to the State v. Dawkins and Jolly v. State, my objection is, number one, it’s hearsay; and, number two, it’s corroboration or bolstering of her witness.  And they – she can introduce evidence that this person indicated there was an assault, but it’s limited.  The details and the particulars are not admissible, but so much of the complaint as identifies a time and a place may be shown.

The court overruled Brown’s objection, and Dr. Smith testified Victim told him someone had touched her on her genital area on more than one occasion, and that it sometimes hurt.  He also testified Victim told him she was touched repeatedly on the breasts.  

During the State’s direct examination of Annie, Brown objected to a leading question and was overruled.  After Brown cross-examined Annie, the court indicated that Brown’s objection was overruled pursuant to Rule 611(c), SCRE, because Annie was “very well identified” with Brown because she had been married to him for twenty years.  Accordingly, the trial court allowed the State to ask Annie leading questions on re-direct examination. 

During the cross-examination of Mary Lesley, one of Brown’s neighbors, Brown asked if Annie had ever told her that Victim had accused her grandfather of molesting her.  The court sustained the State’s objection to the question.  At the conclusion of her testimony, and outside the jury’s presence, Lesley stated that she was unaware of any allegations about Victim’s grandfather.  

LAW/ANALYSIS

I.  Other Bad Acts

Brown contends the trial court erred in permitting evidence that Brown had touched Victim’s breasts at least ten times.  He argues this evidence, provided through Victim’s testimony and Dr. Smith’s testimony, constituted impermissible bad acts evidence.  This issue is not preserved.

To be preserved for appellate review, an issue must have been raised to and ruled on by the trial judge.  Brown did not object to Victim’s testimony regarding these acts.  Thus this issue is not preserved as to her testimony.  See State v. Perez, 334 S.C. 563, 565-66, 514 S.E.2d 754, 755 (1999) (issues not raised to and ruled upon by the trial court will not be considered on appeal).  Further, although Brown did object to Dr. Smith’s testimony regarding these acts, his only objection to this testimony was that it constituted hearsay and improper corroboration.  Because his argument on appeal differs from the one asserted at trial, it is also not preserved for our review.  State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989) (holding a party cannot argue grounds on appeal different than those argued to the trial judge).

II.  Rape Shield Law

Brown argues the trial court improperly excluded under the rape shield statute evidence of unpursued sexual abuse accusations Victim made against her grandfather.  We find no error.

During cross-examination of Brown’s neighbor Mary Lesley, Brown asked if Annie told her Victim had initially accused her grandfather of the sexual abuse in question.  When the State objected, the trial court held a bench conference and sustained the objection.  Neither the grounds for the objection nor the court’s rationale in sustaining it appear in the record.

Although the record does not reflect the court’s reasoning, we find the objection was properly sustained because the testimony would have been impermissible hearsay.  Repeating whether Annie had told her about an accusation made by Victim would have been offered for the truth of the matter asserted—that Victim accused her grandfather of sexual abuse—and does not fall within any of the exceptions to the rule against hearsay.  Rule 801, SCRE (hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted); 802, SCRE (hearsay is inadmissible except as provided in statute or court rule); 803, SCRE (hearsay exceptions – availability of declarant immaterial).  Thus the trial court properly excluded the testimony.  See I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 418-21, 526 S.E.2d 716, 721-25 (2000) (holding an appellate court can affirm for any reason appearing in the record).  Additionally, at the conclusion of Lesley’s testimony, she testified outside the jury’s presence she was not aware of any allegations against Victim’s grandfather.  Thus, Brown could not have been prejudiced by the exclusion of Lesley’s testimony on the matter. 

III.  Bolstering Hearsay

Brown asserts the trial court erred in allowing corroborative testimony from Dr. Smith, Inspector Garrett, and Inspector Brothers.  He contends their testimony improperly bolstered Victim’s testimony.  Additionally, he argues the prosecutor personally bolstered Victim’s testimony by asking her about prior conversations she had with the prosecutor and Dr. Smith.  We find no error.

Initially we note Brown did not object to any corroborative testimony offered by Inspectors Garrett and Brothers.  Thus this issue is not preserved as to these grounds. 

Brown did object to Dr. Smith’s testimony, but the same was permitted under the well-recognized medical diagnosis and treatment exception to the hearsay rule.  Dr. Smith testified the child reported she was repeatedly touched on the breasts, touched on her vagina, and that sometimes the vaginal contact hurt.  Because this information was necessary for Dr. Smith to better assess any mental and physical injury, the testimony was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment.  Rule 803(4), SCRE.

IV.  Ineffective Assistance of Counsel

Brown contends his conviction should be reversed because his trial counsel was ineffective for allowing him to submit to a polygraph examination and for failing to accompany him during the examination.

This court is an appellate court for the correction of errors of law committed at the trial level.  We do not consider claims of ineffective assistance of counsel on direct appeal from convictions.  Instead, such claims should be brought in a proceeding for post-conviction relief.  State v. Felder, 290 S.C. 521, 522, 351 S.E.2d 852, 852 (1986) (“Without addressing the merits of appellant’s claim, we hold that post-conviction relief rather than a direct appeal is the proper avenue of relief in this case.”). 

V.  Redirect Examination of Annie Brown

Brown asserts the trial court erred in allowing the State to ask Annie leading questions on redirect.  We disagree.

Ordinarily, leading questions should not be used on direct examination except as necessary to develop the witness’ testimony.  Rule 611(c), SCRE.  However, “[w]hen a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.”  Id.  Contrary to Brown’s contention that the trial court declared Annie a hostile witness, the court clearly indicated it was allowing leading questions under Rule 611(c), SCRE because Annie was identified with Brown.  At the time she testified at trial, Annie had been married to Brown for almost twenty years.  Given that she was testifying for the State while married to the defendant, we find no error in the court’s conclusion that she “identified with an adverse party.”  Id.  Accordingly, the trial court acted well within its discretion under Rule 611 in allowing the State to elicit Annie’s testimony through leading questions.

VI.  Cumulative Errors

Having concluded each of Brown’s issues lack merit, we find application of the cumulative error doctrine inappropriate in this case.

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.