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2009-UP-437 - State v. Thomas

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,

v.

Randy B. Thomas, Appellant.


Appeal From Richland County
James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-437
Heard May 27, 2009 – Filed September 10, 2009   


AFFIRMED


Deputy Chief Appellate Defender for Capital Appeals Robert M. Dudek, 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 William M. Blitch, Jr., and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

PER CURIAM:  Randy Thomas appeals his convictions of first-degree criminal sexual conduct (CSC), assault and battery of a high and aggravated nature (ABHAN), and two counts of kidnapping, asserting the circuit court erred in admitting evidence of a previous, alleged, and un-charged CSC under the motive, intent, or common scheme or plan exceptions to Rule 404(b), SCRE.  Thomas also contends the circuit court erred in finding the State had satisfied its requirement of proving chain of custody with respect to certain evidence admitted at trial, and in denying his right of confrontation under the Sixth Amendment of the United States Constitution.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. Based on the supreme court's recent opinion in State v. Wallace, we affirm the circuit court's admission of prior bad acts evidence under Rule 404(b).  Op. No. 26703 (S.C. Sup. Ct. Aug. 17, 2009) (Shearouse Adv. Sh. No. 37 at 18) (stating a close degree of factual similarity between the alleged bad acts and crime charged is sufficient to admit the evidence under the common scheme or plan exception to the general rule under Rule 404(b) and State v. Lyle, 125 S.C. 406, 11 S.E. 803 (1923)).  We find the allegations against Thomas were proven by clear and convincing evidence, and that the evidence is relevant.  See State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); see also Rule 401, SCRE.  Additionally, we find the non-exhaustive list of factors to consider in determining whether there is a close degree of similarity between the bad act and the crime charged leads to our affirmance of the circuit court.  Wallace, (Shearouse Adv. Sh. No. 37 at 22) (listing the factors to consider:  (1) the age of the victims when the abuse occurred; (2) the relationship between the victims and the perpetrator; (3) the location where the abuse occurred; (4) the use of coercion or threats; and (5) the manner of the occurrence, for example, the type of sexual battery).  Furthermore, we find the probative value of victim's testimony substantially outweighs the danger of unfair prejudice.  See Rule 403, SCRE.

2.  We find any violation of the chain of custody requirement in the admission of the DNA evidence to be irrelevant and harmless to the outcome of the verdict, as Thomas himself testified that he had consensual sex with the victim in the vicinity of the items which produced the DNA.  Sligh v. Johnson, 288 S.C. 364, 367, 342 S.E.2d 620, 622 (Ct. App. 1986) (finding any error in the admission of evidence through a defective chain of custody is harmless when it is merely cumulative to other evidence properly admitted).  We additionally find any error in the admission of the investigative report to be harmless as cumulative to the photographs and testimony otherwise admitted without objection.  See State v. Holder, 382 S.C. 278, 285, 676 S.E.2d 690, 694 (2009) ("Violations of the Confrontation Clause are subject to a harmless error analysis. . . . A Confrontation Clause error is harmless if the evidence is overwhelming and the violation so insignificant by comparison that we are persuaded, beyond a reasonable doubt, that the violation did not affect the verdict. . . . Considerations include the importance of the witness's testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case."); State v. Gaines, 380 S.C. 23, 29, 667 S.E.2d 728, 731 (2008) (stating error in the admission of evidence is harmless when it is cumulative to other evidence that was properly admitted).

Accordingly, the circuit court is

AFFIRMED.

HEARN, C.J., THOMAS, J., and KONDUROS, J., concur.