Criminal Practice – Criminal Sexual Conduct – Prior Bad Acts Evidence – Unpreserved Issues

At defendant’s trial for sexually abusing his elder stepdaughter, he failed to preserve for appellate review the issue of whether the trial court erred in allowing his younger stepdaughter to testify that he abused her, too.

We reverse the Court of Appeals’ reversal of defendant’s convictions for criminal sexual conduct with a minor in the first and second degree.

Though State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009), has since been overturned, it remained the law at the time of defendant’s trial. Thereunder, the state could only introduce the younger stepdaughter’s testimony if the similarities between her testimony and the victim’s outweighed the dissimilarities.

During trial, the state asked the court for a “final ruling” on whether the younger stepdaughter would be allowed to testify. Without saying it was giving a “final ruling,” the trial court said the testimony would be admitted, and defendant’s objection was overruled.

However, before the younger stepdaughter testified, three other witnesses testified as to the similarities between the sisters’ experiences. Because defendant did not renew his Wallace objection contemporaneously with the younger stepdaughter’s testimony, he waived appellate review of this issue.

Defendant’s failure to renew his objection also renders unpreserved the issue subsequently decided in State v. Perry, 430 S.C. 24, 842 S.E.2d 654 (2020), i.e., that the state was required to show a logical connection between the sisters’ experiences.

As to the Perry issue, however, the issue is unpreserved for an additional reason. At the time of defendant’s trial—2017—the Wallace “substantial similarities” test had been in effect for eight years.

To preserve what we call here the Perry issue, therefore, it was necessary to alert the trial court that defendant contended Wallace was not the proper standard and to put the state on notice defendant contended the state must do more than simply introduce the evidence and argue similarity. Defendant gave neither the trial court nor the state any indication he contended Wallace was not the proper standard.

Defendant now argues the fact he mentioned State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), was sufficient. We disagree. To preserve the Perry issue, defendant was required to be clear at trial that he contended Wallace set forth the incorrect standard and the correct standard for admissibility under Rule 404(b), SCRE, was a logical connection.

If defendant had argued to the trial court the state was required to establish a logical connection under Lyle—rather than merely present similarities and dissimilarities for the court to weigh—the state might have been able to lay a foundation for a logical connection, or it might have simply chosen not to introduce the sister’s testimony.

Reversed.

State v. Morales (Lawyers Weekly No. 010-027-23, 8 pp.) (John Few, J.) (John Kittredge, J., concurring in result only without separate opinion) Appealed from Lancaster County Circuit Court (Roger Henderson, J.) On writ of certiorari to the Court of Appeals. Alan McCrory Wilson and William Blitch for petitioner; Kathrine Haggard Hudgins for respondent. South Carolina Supreme Court