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2010-UP-228 - State v. Campbell

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.

Joe Harold Campbell, Appellant.


Appeal From Greenville County
 C. Victor Pyle, Jr., Circuit Court Judge


Unpublished Opinion No. 2010-UP-228
Heard March 3, 2010 – Filed April 1, 2010   


AFFIRMED


M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Robert Mills Ariail, of Greenville, for Respondent.

PER CURIAM:  Joe Harold Campbell appeals from a jury verdict finding him guilty of first-degree criminal sexual conduct with a minor.  Campbell argues the circuit court erred in admitting testimony concerning his abuse of a different child and in denying his motion for a mistrial.  We affirm.

1. Campbell argues the circuit court erred in admitting the testimony of his abuse of a different child.  We agree the circuit court erred in finding the testimony admissible under Rule 404(b), SCRE, to show motive and intent.  See State v. Nelson, 331 S.C. 1, 11, 501 S.E.2d 716, 721 (1998) (holding a person commits a sexual offense for the obvious motive of sexual gratification, and where this fact is apparent from the charges, evidence of motive and intent are not a material issue).  However, we affirm on the ground the testimony was admissible under Rule 404(b), SCRE, to show common scheme or plan.  Rule 220(c), SCACR, provides the appellate court may rely on any other reason appearing in the record to affirm the lower court's ruling, order, decision or judgment.  "It is within the appellate court's discretion whether to address any additional sustaining grounds."  I'On v. Town of Mount Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000).  Rule 404(b), SCRE, permits the admission of evidence of a common scheme or plan, and such evidence is relevant because proof of one is strong proof of the other.  State v. Wallace, 384 S.C. 428, 433, 683 S.E.2d 275, 277 (2009).  "When determining whether evidence is admissible as common scheme or plan, the trial court must analyze the similarities and dissimilarities between the crime charged and the bad act evidence to determine whether there is a close degree of similarity."  Id. at 433, 683 S.E.2d at 277-78.  "When the similarities outweigh the dissimilarities, the bad act evidence is admissible under Rule 404(b)."[1]  Id.

2.  Campbell argues the circuit court erred and abused its discretion in refusing to grant a mistrial after the victim's testimony about a news story exceeded the scope agreed upon by the parties.  Campbell objected when he felt the testimony inferred he had been similarly and recently charged with sexual abuse.  However, the objection was never ruled upon, and therefore, the issue is not preserved.  See State v. McKnight, 352 S.C. 635, 646-47, 576 S.E.2d 168, 174 (2003) (providing an issue must be raised to and ruled upon by the trial court to be preserved for review).

AFFIRMED.

SHORT, WILLIAMS, and LOCKEMY, JJ., concur.


[1] Our supreme court suggested the circuit court consider the following factors when determining whether there is a close degree of similarity between the bad act and the crime charged: (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.  State v. Wallace, 384 S.C. 428, 433-34, 683 S.E.2d 275, 278 (2009).