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2008-UP-069 - State v. Springer

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.

John Daniel Springer, Appellant.


Appeal From Darlington County
 J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2008-UP-069
Heard January 8, 2008 – Filed January 23, 2008   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, 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 Norman Mark Rapoport, all of Columbia; and Solicitor Jay Hodge, Fourth Circuit Solicitor’s Office, of Cheraw, for Respondent.

PER CURIAM: John Daniel Springer (Springer) appeals his conviction and sentence for two counts each of first-degree criminal sexual assault with a minor, committing a lewd act on a minor, and contributing to the delinquency of a minor.  Springer alleges the trial court erred in improperly joining and refusing to sever cases involving separate alleged incidents and different victims.  We affirm. 

FACTS

In February 2002, Officer Dennis Carter took an incident report identifying alleged sexual assaults by Springer on his daughter (Jane Doe) and niece (Jane Roe).[1]  Based on the evidence gathered through the subsequent investigation, Springer was arrested and charged with various criminal acts against the victims.

Prior to trial, Springer filed a motion to sever the trials involving the alleged crimes against the victims.  At a pre-trial hearing, Springer argued the cases did not contain sufficient similarities to warrant consolidation.  The trial court denied Springer’s motion to sever.  The trial court found the cases involving the victims were “very similar,” including similarities in the nature, location, and execution of the alleged acts.  In addition, the trial court acknowledged each victim would be a witness in the other’s case.  Based on this reasoning, the trial court held the cases should be consolidated. 

For acts committed against Jane Doe and Jane Roe, the jury found Springer guilty of two counts each of first-degree criminal sexual assault with a minor, committing a lewd act on a minor, and contributing to the delinquency of a minor.  The trial court sentenced Springer to thirty years imprisonment for each of the charges of first degree criminal sexual assault with a minor, fifteen years for each of the charges of committing a lewd act on a minor, and three years for each of the charges of contributing to the delinquency of a minor, all to run concurrently. 

Pursuant to Anders v. California, 386 U.S. 738 (1967), counsel for Springer attached to the final brief a petition to be relieved as counsel, stating she reviewed the record and concluded the appeal was without legal merit sufficient to warrant a new trial.  After a thorough review of the record, we ordered the parties to brief whether the circuit court improperly consolidated the charges.    

STANDARD OF REVIEW

The trial court has broad discretion when determining whether to consolidate charges for trial.  State v. Grace, 350 S.C. 19, 23, 564 S.E.2d 331, 333 (Ct. App. 2002).  The trial court’s decision will be reversed if an abuse of discretion has occurred.  Id.    

LAW/ANALYSIS

The trial judge has the power, in his discretion, to order offenses charged in separate indictments to be tried together when the offenses are of the same general nature involving connected transactions closely related in kind, place, and character, and the defendant’s substantive rights would not be prejudiced.  State v. Simmons, 352 S.C. 342, 350, 573 S.E.2d 856, 860 (Ct. App. 2002). 

“Offenses are considered to be of the same general nature where they are interconnected.”  Id.  “Conversely, offenses which are of the same nature, but which do not arise out of a single chain of circumstances and are not provable by the same evidence may not properly be tried together.”  State v. Jones, 325 S.C. 310, 315, 479 S.E.2d 517, 519 (Ct. App. 1996). 

Accordingly, the Supreme Court of South Carolina has held, “Charges can be joined in the same indictment and tried together where they (1) arise out of a single chain of circumstances, (2) are proved by the same evidence, (3) are of the same general nature, and (4) no real right of the defendant has been prejudiced.”  State v. Harris, 351 S.C. 643, 652, 572 S.E.2d 267, 272 (2002).  The court may consolidate trials involving multiple defendants, multiple victims, or both.  See Jones, 325 S.C. at 313-16, 479 S.E.2d at 518-20 (holding consolidation of cases against two adults involving the sexual abuse of two minor victims was proper). 

In the present case, the charges arise out of a single chain of circumstances.  Jane Doe and Jane Roe, both young females, were assaulted in Springer’s home.  The young victims were assaulted at night.  The girls were assaulted at times when others were present in the house. The victims are related to Springer.  Additionally, the acts committed against the victims were of the same general nature, including vaginal fondling and performing cunnilingus. 

The charges are proved by the same evidence.  For example, Jane Doe and Jane Roe would argue about which side of the bed each would sleep.  The bed in which the victims slept was a bunk bed.  The bed was positioned such that it was placed against the wall of the bedroom.  Consequently, one side of the bed was up against the wall, while the other side was open to the bedroom.  The victims would sleep together in the bottom part of the bunk bed.  Jane Roe testified that she and Jane Doe would argue as to which one would sleep on the side of the bed facing the wall.  The desire of each victim to sleep on the inside of the bed was fueled by their wish to escape the possibility of sexual abuse during the night by Springer.

Moreover, Jane Doe testified to an occurrence during which Springer entered the bedroom and sexually abused Jane Roe.  Jane Doe testified that during the night, Springer entered the bedroom when the victims were asleep.  Jane Doe stated, “I thought it was just a dream but it wasn’t because in the morning, I woke up and [Jane Roe] was acting all weird.”  Jane Roe, in describing this occasion, testified that “[Springer] came in and I was [a]sleep on the outside [of the bed] because [Jane Doe] was sleeping on the inside.  [Springer] just touched my private.”  When asked whether she informed anyone, Jane Roe responded, “I remember I told [Jane Doe], but she told me it happened to her, but she never said what happened to her.”  The foregoing demonstrates that Jane Doe and Jane Roe were necessary witnesses to corroborate the circumstances of sexual abuse that occurred to each other. 

The final factor to consider in determining whether consolidation is warranted is if any real right of the defendant has been prejudiced.  Springer argues consolidation prevented him from calling his wife (Wife) as a material witness for charges relating to Jane Roe.  Wife was charged with unlawful neglect involving Jane Doe.  During trial, Wife was called as a witness.  However, Wife refused to testify on the grounds of her Fifth Amendment right to remain silent.  Springer contends consolidation prevented him from calling Wife as a witness for charges involving Jane Roe because Wife was charged with unlawful neglect involving only Jane Doe. 

Even if Springer was tried separately, and Wife testified as a witness for charges relating to Jane Roe, there is sufficient evidence to conclude the trial judge did not abuse his discretion in consolidating the charges.  In addition to Jane Doe’s and Jane Roe’s testimony described above, Jane Roe gave additional testimony which described in graphic detail Springer’s acts.

Q: Was there ever a time when something happened that made you feel uncomfortable?

A: Yes, ma’am.

Q: Can you tell us what you remember about that?

A: Yes, ma’am.  [Springer] would touch and lick my private.

. . .

Q: And has that happened one time or more than one time?

A: More than once.

. . .

Q: I want to ask you about one of the first times you remember something happening, and can you kind of just describe where you were when it first started?

A: I don’t remember where, but I remember what happened.

Q: Okay. Can you tell us about that?

A: [Springer] would just touch my private.

Q: About how old were you when this first started to happen?

A: Eight or nine.

. . .

Q: Would these things normally happen in the daytime or nighttime?

A: Nighttime.

Q: What do you remember about that?

A: I’d be sleep, [sic] and [Springer would] just wake me up.

Q: How would you wake up?

A: With him touching me.

Q: And would that be on top or underneath your clothes?

A: Underneath.

Q: Can you tell us what part or parts of your body?

A: My private.

. . .

Q: And did he touch your private part one time or more than one time?

A: More than one time.

Q: Okay. I need to ask you if you can describe what kind of touching that was.

A: He just rubbed my private.

Q: Okay. Can you tell us what you mean by rubbing on your private. What part of your private?

A: It was the outside.

Q: Okay.  You said before that something else had happened to your private?

A: Yes, ma’am.

Q: Okay. Can you tell us what that was?

A: He would lick inside my private.

 Additionally, our decision to affirm the trial court is supported by case law.  In Jones, two appellants were indicted on numerous charges arising out of their sexual abuse of two minors.  Id. at 313-14, 479 S.E.2d at 518-19.  The abuse of the minors occurred in December 1991, January 1992, and September 1992.  Id.  The trial court consolidated the charges against each appellant into one of two indictments, and they were tried jointly on each charge.  Id.  Consequently, the appellants were each convicted of three counts of first-degree criminal sexual conduct, two counts of second-degree criminal sexual conduct, five counts of criminal conspiracy, and one count of contributing to the delinquency of a minor.  Id.

On appeal, one of the issues presented was whether the trial court improperly consolidated the case.  Id. at 314-15, 479 S.E.2d at 519-20.  This Court, in affirming the trial court, held the charged offenses were of the same general nature involving allegations of a pattern of sexual abuse involving the two minor victims.  Id.  We also noted the evidence presented showed both victims had been taken to the same locations and were present in the same motel room on an occasion of abuse.  Id. 

As explained above, the record indicates similarities exist in the assaults against the victims.  Jane Doe and Jane Roe were assaulted in Springer’s home.  Both were assaulted in the nighttime. Both were assaulted at times when others were present in the house, and some of the acts committed against the victims were similar in nature, including vaginal fondling and performing cunnilingus.  See State v. Grace, 350 S.C. 19, 24, 564 S.E.2d 331, 333 (Ct. App. 2002) (affirming consolidation when crimes were “interconnected,” “[a]ll incidents concerned the same parties,” incidents “took place in the same location,” incidents occurred “within a relatively short time period,” and the evidence showed “a pattern of sexual abuse and was essentially the same for all charges”).  Based on the foregoing, we conclude the trial court did not abuse its discretion in consolidating the charges.                                       

CONCLUSION

Accordingly, the circuit court’s decision is

AFFIRMED.

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


[1] The actual names of the victims have been changed.