THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
Paul M. Watkins, Appellant.
G. Thomas Cooper, Jr., Circuit Court Judge
Unpublished Opinion No. 2009-UP-402
Submitted April 1, 2009 – Filed August 12, 2009
John D. Delgado, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Michelle J. Parsons, Warren B. Giese, of Columbia, for Respondent.
PER CURIAM: In this criminal case from Richland County, Paul Watkins appeals his conviction for commission of a lewd act on a minor under the age of sixteen and two counts of contributing to the delinquency of a minor. Specifically Watkins appeals; (1) the trial court's admission of a photograph depicting the victim and her friend posing in bikinis; and (2) the trial court's refusal to allow him to introduce evidence that the victim's brother had been convicted of sexual misconduct with a minor in Florida. We affirm.
On the night of August 27, 2004, the victim ("Victim") and her friend ("Friend") spent an evening at Watkins's home. Victim and Friend, both age thirteen at the time, played pool, used the computer, and soaked in the hot tub, while Victim's mother, Watkins and Watkins's wife ("Wife") socialized. Victim and Friend allege that Watkins poured them both a shot of "Fireball" when they first arrived, which they drank. Victim maintains that although Watkins spent much of his time socializing with the adults, he on two or three occasions again offered the girls more "Fireball," which they declined.
Later that evening, Victim noticed that Friend was lying on the staircase "half asleep." Tired herself, Victim also decided to lie down on the staircase. Victim asserts that Watkins roused her and Friend, telling them they could sleep in the guest bedroom if they were tired. Assenting, the girls moved to the guest room, closed the door, changed clothes, and went back to sleep.
Victim alleges that she awoke to find Watkins standing over her, kissing her neck and cheek. She testified he was whispering "[s]hhh [i]t's okay," while rubbing her body, buttocks, and vagina; and asking "does it feel good?" Victim claims she attempted to end the assault by stating "goodnight Uncle Paul" and rolling over. Unsuccessful, she reached for her cell phone on the far nightstand, waking Friend in the process. Not realizing what was happening, Friend got out of bed and walked toward the bathroom. Victim followed her, hoping to enter the bathroom with her, however Friend had closed and locked the door behind her. Victim claims Watkins followed her to the bathroom door continuing to rub and fondle her body while she waited for Friend to come out of the bathroom.
As soon as Friend emerged from the bathroom, Victim told her they needed to leave. The girls immediately returned to Victim's home; however, without a key they had to rouse Victim's mother from a deep sleep by banging on her bedroom window. Victim told her mother and Friend what happened, and called her father, a member of the armed forces stationed in Tennessee. Neither Victim nor her mother called the police; however, the Victim's father, from Tennessee, contacted the authorities and had officers dispatched to Victim's home.
Watkins and Wife maintain that the girls were never invited to spend the night and, rather, they asked the girls to leave after discovering them in the liquor cabinet. Claiming that Victim retorted "I'll get you for this," it is Watkins's position that Victim fabricated the allegations in an effort to retaliate against him and avoid trouble for drinking.
The intial trial of this matter ended in a mistrial when the jury failed to reach a unanimous verdict. The second trial took place March 12-16, 2007.
In limine, Watkins moved the court to suppress a photograph depicting Victim and Friend in bikinis taken two months prior to the night of the incident. Watkins also sought to introduce what he deemed impeachment evidence that Victim's brother had been convicted in Florida of sexual misconduct with a minor. Victim's testimony was proffered and she stated that she was aware of her brother's conviction and that this equipped her with knowledge of the power and consequence of the accusations. The trial court ruled, in limine, that the photo and the evidence about the conviction were irrelevant and prohibited reference to either in opening arguments.
During the course of Victim's testimony, while the State was attempting to lay the foundation for the photograph, Watkins objected on the basis that the photo was irrelevant. The court found that the portion of the photo depicting Victim had nothing to do with this case. Then the court reasoned that the portion depicting Friend may establish some fact in the case which would perhaps make it relevant. However, the court found that evidence had yet to establish the relevance of the portion of the picture depicting Friend and therefore ruled the portion depicting Friend could not be introduced through Victim.
Later, during the direct examination of Friend, the State again sought to introduce the picture. Watkins objected, both on the relevancy of the photo and arguing it was not probative of anything. The court again sustained the objection as to the portion of the photo depicting Victim; however, it overruled the objection as to the portion depicting Friend. The trial court found that because the photo depicted the actual bikini Friend wore on the night of the incident and there was evidence that the bikini top was left at Watkins's home, the photo may be determinative of some fact. The photo was cut in two, and the portion depicting Friend was admitted into evidence.
Finally, during the State's cross-examination of Wife, she testified that Victim generally wore "two-piece" bathing suits, and the State apparently showed her the portion of the photo depicting Victim in her bikini. Watkins objected, and the trial court held a bench conference off the record. When the proceedings resumed on the record, the photo was introduced into evidence, with the trial court noting Watkins's objection. The basis for the objection is not on the record. At the end of Wife's testimony, when the trial court asked if Watkins had anything he wished to put in the record, he responded in the negative.
Watkins was convicted and this appeal follows.
ISSUES ON APPEAL
I. Did the trial court err in admitting the photo of the two thirteen (13) year old girls?
II. Did the trial court err in refusing to allow Watkins to introduce evidence that Victim's brother had previously been convicted in Florida of sexual misconduct with a minor?
STANDARD OF REVIEW
In criminal cases, the appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court is bound by the trial court’s factual findings unless they are clearly erroneous. Id. The admission of evidence is in the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006); State v. Gaster, 340 S.C. 545, 557, 564 S.E.2d 87, 93 (2002).
Watkins first alleges that the trial court committed reversible error by admitting the picture of Victim and Friend. We disagree.
Relevant evidence, is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Rule 401, SCRE; State v. Alexander, 303 S.C. 377, 380, 401 S.E.2d 146, 148 (1991). However, not all relevant evidence is admissible. See Rule 403, SCRE (stating that "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury"). In order to reverse the trial court's admission of evidence we must find (1) an abuse of discretion on the part of the trial judge; and (2) likely prejudice. State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004).
Generally, a photo may be relevant if it corroborates testimony of a witness. See State v. Weik, 356 S.C. 76, 84, 587 S.E.2d 683, 687 (2002) (finding photos depicting the location and severity of shotgun wounds relevant as illustrative of testimony received as to the same); State v. Martucci, 380 S.C. 232, 250, 669, S.E.2d 598, 608 (Ct. App. 2008) (finding photos to be relevant in a prosecution for child abuse because the photos corroborated the testimony of a doctor as to severity of the child's injuries based on discolorations, bruising, and internal trauma). However, although relevant to corroborate testimony, as a matter of course, the photos must depict that which was testified to, as well as be demonstrative of a fact of consequence. See also Rule 401, SCRE (establishing that relevant evidence, is evidence "having any tendency to make the existence of any fact that is of consequence . . . more or less probable").
a. Photo of Friend
The trial court based its finding of relevance as to the photo of Friend on the fact that Friend testified to having worn that particular flower print bikini on the night of the incident, and after changing and falling asleep at Watkins's home, she apparently left the bikini top there and never returned to retrieve it. The trial court seemed to accept the State's argument that the photo was relevant as corroborating Friend's account that the bikini top was in fact left at Watkins's home, thus—somehow—making it more probable that the girls spent the night at Watkins's home, rather than having been asked to leave as the Watkins contends.
Here, the photo of Friend corroborates her testimony only as to the fact that she owned a flower print bikini. The photo however, in no way makes it more or less probable that Friend left her bikini top at Watkins's house or spent the night there. Nor can it logically be deemed to corroborate her testimony as to the same.
Moreover, the picture, which was taken some two months prior, does not actually support Friend's testimony that she donned that particular bikini that night. While the photo, in the loosest sense, corroborates her testimony as to what she looked like on that particular night, no facts were developed in this case to demonstrate it was of any consequence what particular bikini she wore on that night or how she appeared in it. See Rule 401 (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence”). Accordingly, because the photo did not corroborate Friend's testimony, and was not probative of any fact of consequence in the case, it should not have been admitted over Watkins's objection.
b. Photo of Victim
Similarly, we agree with Watkins that the portion of the photo depicting Victim was also irrelevant.
During the course of cross-examining Wife, the State presented the photo to her in what it deems an effort to refresh her memory. Watkins objected, at which time a conference was held off the record. When the record resumes, the photo is immediately entered into evidence "over [Watkins's] objection." Watkins put nothing further in the record.
Reviewing the record as a whole, it would seem the objection was again based on relevance. Although the court made no specific statement as to the relevance of the photo on this occasion, it apparently found something had changed to make the photo relevant. However, as we stated, to whatever extent this photo was deemed relevant it was error. It did not make any fact of consequence more or less probable, nor did it serve to corroborate or depict any testimony. While the State seems to suggest that the photo was admissible because it used the photo to refresh Wife's memory, this argument is unsupported by law. See Rule 612, SCRE (stating that a writing used to refresh memory may be introduced into evidence by an adverse party in the trial court's discretion, as necessary to serve the interest of justice) (emphasis added).
Notwithstanding the irrelevance of the photo depicting Victim and Friend, this Court will not reverse a trial court's admission of evidence absent a prejudicial abuse of discretion. State v. Douglas, 367 S.C. 498, 508, 629 S.E.2d 59, 64 (Ct. App. 2006) (stating that in order to warrant reversal of the trial court based on admission of evidence, there must be both an abuse of discretion as well as a demonstration of prejudice). In order to show prejudice, the court must find there was a reasonable probability that the jury's verdict was influenced by the evidence. Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005); Douglas, 367 S.C. at 508, 629 S.E.2d at 64. As it pertains more specifically to photographs, to amount to unfair prejudice, the photographs must create an "undue tendency to suggest a decision on an improper basis." State v. Jackson, 364 S.C. 329, 334, 613 S.E.2d, 374, 376 (2005) (citing State v. Alexander, 303 S.C. 377, 382, 401 S.E.2d 146, 149 (1991)) (internal quotations omitted).
In this case, Watkins has not demonstrated how he was prejudiced by the photograph, nor do we find it manifestly prejudicial. The challenged photo is that of two teen-aged girls in bathing suits, leaning against a wall. It is an admittedly accurate depiction of how the girls often appeared that summer. Although notably bearing little relevance to the particular issues of this case, it is not the type of photo to inflame the passions of the jury. It is mundane and platonic; the girls are not posed provocatively or suggestively. It would not seem reasonable to conclude that this picture influenced the decision of the jury. Accordingly, although irrelevant, the trial court's admission of the photograph does not amount to a prejudicial abuse of discretion and we therefore do not find reversible error.
Next Watkins argues that it was error to deny the admission of evidence that Victim's brother had been convicted in Florida of sexual misconduct with a minor. We disagree.
Watkins argues the evidence was relevant impeachment evidence as it tended to show Victim's special knowledge of the "stigma" and "power" of the allegations and thus was demonstrative of her motive to manufacture these allegations. Watkins argues that the evidence was specifically admissible under Rule 608(c), SCRE, and the trial court therefore erred in analyzing the admissibility of the evidence under Rule 403, SCRE.
Initially we note that the trial court found the evidence of the conviction "neither . . . relevant or probative of anything." The record does not indicate that the trial court excluded the evidence under Rule 403, but rather simply found it irrelevant pursuant to Rule 401. Further, Watkins seems to tangle two different arguments by seeking to admit the conviction as impeachment evidence. While Rule 608(c) does permit evidence of bias, prejudice, or any motive to misrepresent, to impeach a witness, Watkins's argument that Victim's knowledge of her brother's conviction demonstrates motive is unfounded. Rather, if there were any motive, that motive would be the alleged personal vendetta. Although the brother's conviction may have demonstrated knowledge of this type of accusation, the fact that her brother was convicted of sexual misconduct is not the driving force for making the allegations.
During the proffer of Victim's testimony she admitted knowledge of her brother's conviction as well as knowledge of the power and stigma of the accusations; thus, evidence or inquiry of the conviction was not necessary to impeach her. Accordingly, as the conviction was not permissible impeachment evidence it was within the trial court's discretion to determine the relevance of the evidence, and we find no error in the trial court finding the conviction to be irrelevant. Moreover, we note that the trial court's decision to exclude evidence of the conviction did not prevent Watkins from inquiring whether the Victim was aware of the nature and power of her accusations. As such, the trial court did not err in excluding evidence of the brother's conviction or inquiry thereon.
Because the trial court's admission of the photo did not amount to prejudicial error and Watkins was not deprived of the opportunity to inquire whether Victim appreciated the power and stigma of her accusations, the ruling of the trial court is
SHORT, THOMAS and GEATHERS JJ., concur.
 We decide this case without oral argument pursuant to Rule 215, SCACR.
 Fireball is a cinnamon flavored, sixty-six proof liqueur.
 Watkins is not Victim's actual uncle, but due to their families' close friendship she called Watkins and his wife "Uncle" and "Aunt" respectively.
 Although the trial court admitted the two portions of the original photograph as two separate photos, for ease of discussion we now address the two photographs collectively, in its original state, as a single photograph depicting both Victim and Friend.