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2011-UP-286 - State v. Zitcovich

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.

David Wayne Zitcovich, Appellant.


Appeal From York County
John C. Few, Circuit Court Judge


Unpublished Opinion No. 2011-UP-286  
Submitted June 1, 2011 – Filed June 13, 2011


AFFIRMED


Appellate Defender Lanelle Durant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark Farthing, all of Columbia; and Solicitor Kevin S. Brackett, of York, for Respondent.

PER CURIAM:  David Wayne Zitcovich appeals his convictions on five counts of indecent exposure, arguing the trial court erred in denying his motion to sever the consolidated case.  We affirm.[1]

In 2008, Zitcovich was indicted on five counts of indecent exposure stemming from a series of incidents during the summer of 2007.  Five teenage girls accused Zitcovich of exposing his genitalia while he was giving them driving lessons.  During pretrial motions, Zitcovich moved to sever the consolidated case and try each of the five cases independently.  Following arguments from counsel and a hearing, the trial court denied Zitcovich's motion.

"Generally, when offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place, and character, the trial [court] has the discretion to order the indictments tried together, but only so long as the defendant's substantive rights are not prejudiced."  State v. Cutro, 365 S.C. 366, 374, 618 S.E.2d 890, 894 (2005) (citations omitted).

The trial court did not abuse its discretion in denying the motion to sever because the incidents giving rise to the five indictments "(1) arose 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 [Zitcovich was] prejudiced."  State v. Tucker, 324 S.C. 155, 164, 478 S.E.2d 260, 265 (1996) (citations omitted).  The incidents were of the "same general nature involving connected transactions closely related in kind, place, and character." Cutro, 365 S.C. at 374, 618 S.E.2d at 894 (citations omitted).  The incidents occurred in the same manner, over the course of several months, to five similarly aged and situated victims, while alone with Zitcovich in his car.  See State v. Grace, 350 S.C. 19, 23-24, 564 S.E.2d 331, 333-34 (Ct. App. 2002) (holding consolidation of charges was proper when all the sexual abuse incidents occurred between the same parties and took place in the same location over the course of several months and the evidence showed a pattern of sexual abuse that was essentially the same for all of the charges).

Zitcovich's right to a fair trial was not jeopardized by trying the cases together.  The trial court correctly decided that all of the victims' testimony could come in to describe Zitcovich's prior bad acts because they showed a common scheme or plan, intent, and the absence of mistake.  Rule 404(b), SCRE.  Because such acts would be permitted into evidence regardless of whether the cases were severed, Zitcovich would have faced the collective testimony of all five victims in each individual trial.  See State v. Harry, 321 S.C. 273, 278 n.2, 468 S.E.2d 76, 79-80 n.2 (Ct. App. 1996) (observing no right of the defendant was jeopardized by denial of a severance motion because, even if the motion had been granted, much of the evidence of other related crimes would have been admissible under Rule 404(b), SCRE).  Accordingly, the trial court did not err in denying Zitcovich's motion to sever the consolidated case.

AFFIRMED.

HUFF, WILLIAMS, and THOMAS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.