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2004-UP-581 - State v. Green

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.

Latorey J. Green, Appellant.


Appeal From Sumter County
 Howard P. King, Circuit Court Judge


Unpublished Opinion No. 2004-UP-581
Submitted October 1, 2004 – Filed November 17, 2004


AFFIRMED


Assistant Appellate Defender Aileen P. Clare, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,

 Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Cecil Kelley Jackson, of Sumter, for Respondent.

PER CURIAM: Latorey J. Greene was convicted of first-degree criminal sexual conduct, first-degree burglary, and assault and battery of a high and aggravated nature.  He appeals, arguing the trial court abused its discretion by allowing the solicitor to impeach him with his juvenile adjudication for criminal sexual conduct with a minor.  We affirm.

FACTS

On July 11, 1998, Greene and the victim were partying at a mutual friend’s home.  The victim admitted she was drinking alcohol and using crack cocaine “off and on” all day.  Late that evening, the victim testified that Greene offered her a ride home, which she accepted.  She explained that she trusted Greene to bring her home because she had dated his uncle in the past and thought of Greene as a nephew.  When Greene brought the victim home, a cousin of Greene’s, Christopher Billie, came along. 

The victim testified that both Greene and Billie walked her inside.  She claimed that Greene made unwanted sexual advances toward her, which she fought off.  Billie heard the commotion, talked to Greene, and the two men left the victim’s home.  After they left, the victim locked her front door and the door to her bedroom, and she went to bed.  She fell asleep on her stomach and later woke up when she realized that a man was on her back, raping her.  After ejaculating inside her, the man left, and though the victim never saw his face, she recognized that he was wearing the same tennis shoes that Greene had been wearing earlier that night.

The victim waited for about five minutes before she dressed and ran to a nearby pay phone.  She called 911, reported the rape, and was transported by ambulance to the hospital.  At the hospital, a sample of semen was taken from her underwear.   The DNA of the semen matched the DNA of a blood sample Greene gave to investigators.    

After the State rested its case against Greene, defense counsel explained that Greene was planning to testify on his own behalf and made a motion to prevent the solicitor from revealing to the jury Greene’s juvenile adjudication for criminal sexual conduct with a minor.  The trial court determined that because the past conviction was within the past ten years and the conviction’s probative value outweighed its prejudicial effect, the conviction could be used to impeach Greene’s credibility. 

Greene claimed that he and the victim had known each other for years and that they had had sex in the past.   He described the victim as a long-time crack addict who would have sex in exchange for drugs or money.  On the night he is accused of raping the victim, Greene testified that the victim asked him for a ride home and told him she would have sex with him if he paid her $20.  Greene claims he gave the victim $20, and the two had consensual sex. 

After deliberating for over twelve hours, the jury found Greene guilty of all charges.  Greene was sentenced to concurrent terms of confinement totaling thirty-five years.  This appeal followed.

STANDARD OF REVIEW

The decision to admit prior convictions to impeach a defendant’s credibility is a matter left to the sound discretion of the trial court, and absent an abuse of discretion, the appellate courts will not reverse that decision.     Green v. State, 338 S.C. 428, 433, 527 S.E.2d 98, 101 (2000).  To amount to an abuse of discretion, the trial court’s conclusions must either lack evidentiary support or be controlled by an error of law.  State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). 

Rule 609(d), SCRE, provides that juvenile adjudications can be used to impeach the accused when the crime adjudicated would be admissible to attack the credibility of an adult.  Pursuant to subsections (a)(1) and (b) of Rule 609, a crime is admissible to attack the credibility of an adult when: (1) the crime was punishable by death or imprisonment in excess of one year, (2) the probative value of the prior crime outweighs its prejudicial effect, and (3) the prior conviction is less than ten years old. [1]   When weighing the probative value of the defendant’s prior convictions, the trial court should consider the impeachment value of the prior crime, the amount of time between the conviction and the defendant’s subsequent history, the similarity between the past conviction and the present charge, the importance of the defendant’s testimony, and the centrality of the credibility issue.  Green, 338 S.C. at 433, 527 S.E.2d at 101.

LAW/ANALYSIS

Greene argues the trial court erred by allowing the solicitor to impeach him with his juvenile adjudication for criminal sexual conduct with a minor.  This issue is not preserved for review.

At the close of the State’s case, defense counsel explained that Greene planned to take the stand in his own defense and made a motion requesting that the solicitor not be allowed to impeach Greene on his juvenile adjudication for criminal sexual conduct.  Specifically, Greene’s counsel stated: “I would make a motion at this time in limine that they not be allowed to go into [Greene’s] juvenile record.”  The trial court denied the motion, and the following colloquy then took place:

DEFENSE COUNSEL: Unless you can tell me that I can preserve this and still ask [Greene] about the juvenile record on direct I will simply ask him about his adult record and I’m sure [the solicitor] will bring out the juvenile . . . unless you allow me to preserve it and still ask the question.

TRIAL COURT: I don’t know if I can or not.  I don’t know that I have that authority.  I think you’ll have to just do it whatever way you want to do it and I . . . you know, I can’t say that your objection when you bring it out . . . that’s going to be the ruling when the question is asked.  And you can handle it anyway that you want to.

(Emphasis added.)

The defense then proceeded with its case, first calling Greene’s cousin, Christopher Billie, to the stand.  After Billie’s testimony, Greene testified on his own behalf.  During cross-examination, the solicitor asked Greene if he was convicted for criminal sexual conduct in 1993.  Defense counsel did not object to the question, and Greene admitted to having this prior conviction. 

Despite defense counsel’s own characterization of his motion to exclude Greene’s juvenile record, it was not a motion in limine because it was made after the trial had begun.  State v. Mueller, 319 S.C. 266, 269 n.1, 460 S.E.2d 409, 410 n.1 (Ct. App. 1995) (“A motion in limine is a pretrial procedure[.]”). However, like an in limine motion, the purpose of defense counsel’s motion was to receive a preliminary ruling that would prevent the disclosure of a prejudicial matter to the jury.  See, e.g., State v. Floyd, 295 S.C. 518, 369 S.E.2d 842 (1988) (explaining that the purpose of a motion in limine is to prevent the disclosure of a potentially prejudicial matter to the jury). Because the ruling was preliminary, it was subject to change based on developments at trial.  Had no evidence been presented between the time of the trial court’s ruling and the presentation of the objectionable evidence, then no contemporaneous objection would be needed to preserve the issue for appeal.  State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001) (finding no contemporaneous objection was necessary because the trial court had denied the motion in limine immediately before the witness testified). However, because the trial court heard the direct and cross examination of the defendant’s cousin and the direct testimony of Greene before the objectionable testimony was elicited by the solicitor, defense counsel needed to make a contemporaneous objection to allow the trial court to make a final ruling on the issue.  State v. Simpson, 325 S.C. 37, 42, 479 S.E.2d 57, 60 (1996).  Because no objection was made when the solicitor questioned Greene about his juvenile adjudication, the issue of whether the trial court erred in allowing Greene’s record to be admitted is not preserved for our review.  Accordingly, Greene’s convictions are

AFFIRMED.

HEARN, C.J., HUFF and KITTREDGE, JJ., concur.


[1] A conviction that is greater than ten years old may be admitted if the defendant’s release from prison was within the last ten years or when the court finds “in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”  Rule 609(b), SCRE.