State v. Cox

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.

Brandon Cox, Appellant.

Appellate Case No. 2017-001476

Appeal From Pickens County
Robert E. Hood, Circuit Court Judge

Unpublished Opinion No. 2020-UP-204
Heard December 2, 2019 – Filed July 1, 2020

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, and Jason Scott Luck, of Garrett Law Offices,
of North Charleston, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia; and Solicitor William Walter Wilkins,
III, of Greenville, for Respondent.

PER CURIAM: Brandon Lee Cox appeals from his convictions for first-degree
criminal sexual conduct (CSC) with a minor and third-degree sexual exploitation
of a minor asserting the trial court erred in: (1) refusing to charge a lesser-included
offense; (2) admitting evidence of Cox's jailhouse conversation with his father that
was in violation of Rule 5, SCRCrimP; (3) failing to allow re-redirect examination
of Cox on the jailhouse conversation; and (4) excluding evidence of contact with a
witness during the trial by the father of the victim. Cox further argues (5) the
cumulative effect of errors in his trial requires reversal. We affirm.

1. As to Cox's argument the trial court wrongfully refused to charge assault and
battery in the second degree (AB-2nd) as a lesser-included offense of the CSC with
a minor charge, we find this issue is not preserved for our review. At trial, Cox
sought a jury instruction on assault and battery of a high and aggravated nature
(ABHAN) as a lesser-included offense of the CSC charge. He never mentioned
AB-2nd as a lesser-included offense. Contrary to Cox's appellate assertion, the
trial court did not disallow any lesser-included charge but simply determined that
the now-codified ABHAN crime is not a lesser-included offense of first-degree
CSC with a minor—the only argument raised to the court. See State v. Dunbar,
356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be
preserved for appellate review, it must have been raised to and ruled upon by the
trial judge. Issues not raised and ruled upon in the trial court will not be
considered on appeal."); id. at 142, 587 S.E.2d at 694 ("A party may not argue one
ground at trial and an alternate ground on appeal."); Atl. Coast Builders &
Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("Issue
preservation rules are designed to give the trial court a fair opportunity to rule on
the issues, and thus provide us with a platform for meaningful appellate review."
(quoting Queen's Grant II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368
S.C. 342, 373, 628 S.E.2d 902, 919 (Ct. App. 2006))); Herron v. Century BMW,
395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011) ("Imposing such a requirement on
the appellant 'is meant to enable the lower court to rule properly after it has
considered all relevant facts, law, and arguments.'" (quoting I‘On, L.L.C. v. Town
of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000))).

Additionally, this issue is controlled by our supreme court's recent decision in State
v. Hernandez, 428 S.C. 257, 259-61, 834 S.E.2d 462, 463-64 (2019), wherein the
court held the codification of common law assault and battery and its various
degrees changed the status of ABHAN as a lesser-included offense of CSC such
that the trial court properly denied Hernandez's request to charge the jury on first
and second-degree assault and battery as lesser-included offenses of CSC with a
minor.
2. As to his argument concerning the State's failure to comply with Rule 5,
SCRCrimP, even assuming the State violated this rule by failing to provide defense
counsel a copy of the telephone conversation between Cox and his father, we find
no prejudice. It is undisputed that the State made defense counsel aware of the
existence and the substance of the phone call prior to trial, and Cox has failed to
show how he was prejudiced by a failure to receive a copy of the conversation.
See State v. Kennerly, 331 S.C. 442, 453-54, 503 S.E.2d 214, 220 (Ct. App. 1998)
("Once a Rule 5 violation is shown, reversal is required only [when] the defendant
suffered prejudice from the violation."); State v. Landon, 370 S.C. 103, 108, 634
S.E.2d 660, 663 (2006) ("A violation of Rule 5[, SCRCrimP] is not reversible
unless prejudice is shown.").

Further, even assuming the trial court erred in admitting testimony of the jailhouse
phone conversation between Cox and his father, we find any such error harmless
given the other overwhelming evidence of Cox's guilt. See State v. Brown, 424
S.C. 479, 493, 818 S.E.2d 735, 743 (2018) ("Generally, appellate courts will not
set aside convictions due to insubstantial errors not affecting the result." (quoting
State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d 262, 267 (2006))); id. ("Where 'guilt
has been conclusively proven by competent evidence such that no other rational
conclusion can be reached,' an insubstantial error that does not affect the result of
the trial is considered harmless." (quoting State v. Byers, 392 S.C. 438, 447, 710
S.E.2d 55, 60 (2011))); id. ("Where a review of the entire record establishes the
error is harmless beyond a reasonable doubt, the conviction should not be
reversed." (quoting State v. Price, 368 S.C. 494, 499, 629 S.E.2d 363, 366
(2006))); State v. Chavis, 412 S.C. 101, 110 n.7, 771 S.E.2d 336, 340 n.7 (2015)
(recognizing error in admitting certain testimony can be deemed harmless when
there is other overwhelming evidence of guilt); State v. Daise, 421 S.C. 442, 461,
807 S.E.2d 710, 719 (Ct. App. 2017) (holding any error in admitting testimony was
harmless due to the other overwhelming evidence of the appellant's guilt). The
undisputed evidence of record shows Victim was sexually abused in her home
between 8:00 and 10:30 a.m. on May 25, 2015 as depicted on video; Cox was
living with Victim's family and, besides Victim's father—whose hands were not
similar to those in the videos—and her very young siblings, Cox was the only other
male in the home at the time of the incident; Cox had access to Victim at the time
of the incident, having been left alone with her the night before; and Cox
constantly wore a unique bracelet, identical to the one observed in the videos on
the hand of the person molesting the child. Additionally, review of the exhibits in
this case reveals remarkable similarities between the feet, fingers, bracelet and—in
particular—location of an identifying freckle or scab on the hand depicted in the
videos of the crime and the photographs of Cox taken at the detention center after
his arrest, which occurred the day after the videos were taken.

3. As to the trial court's refusal to allow re-redirect examination of Cox
concerning the jailhouse telephone conversation, we note defense counsel failed to
proffer Cox's re-redirect testimony on the subject. See State v. Jackson, 384 S.C.
29, 34, 681 S.E.2d 17, 19 (Ct. App. 2009) ("Generally, the failure to make a proffer
of excluded evidence will preclude review on appeal."). Further, we are not
convinced there is any other questioning on the matter that would have been
beneficial to Cox's case. Cox had already denied he obtained the tattoos in an
attempt to disguise his hands and testified his reason for getting the tattoos was
religious and that he knew law enforcement had pictures of his hands prior to
getting the tattoos. He further explained the reason he lied to his father—about
having the tattoos before he went to jail and how that was the key to his case—was
because he did not want his father to think less of him. See State v. Jenkins, 322
S.C. 360, 367, 474 S.E.2d 812, 816 (Ct. App. 1996) ("The reason for the rule
requiring a proffer of excluded evidence is to enable the reviewing court to discern
prejudice.").

At any rate, assuming the trial court erred in refusing to allow re-redirect
examination of Cox concerning the jailhouse telephone conversation, we find any
such error harmless given the other overwhelming evidence of Cox's guilt. Brown,
424 S.C. at 493, 818 S.E.2d at 743 ("Generally, appellate courts will not set aside
convictions due to insubstantial errors not affecting the result." (quoting Pagan,
369 S.C. at 212, 631 S.E.2d at 267)); id. ("Where 'guilt has been conclusively
proven by competent evidence such that no other rational conclusion can be
reached,' an insubstantial error that does not affect the result of the trial is
considered harmless." (quoting Byers, 392 S.C. at 447, 710 S.E.2d at 60)); id.
("Where a review of the entire record establishes the error is harmless beyond a
reasonable doubt, the conviction should not be reversed." (quoting Price, 368 S.C.
at 499, 629 S.E.2d at 366)).

4. As to Cox's assertion the trial court erred in excluding evidence of contact
with a witness during the trial by the father of Victim because it was a violation of
the Confrontation Clause, we also find this argument is not preserved for our
review. Defense counsel argued at trial that the testimony was relevant as to
whether the witness's testimony would be influenced by Victim's father. However,
defense counsel never raised to the trial court that exclusion of the evidence was a
violation of Cox's right to cross-examine a witness under the Confrontation Clause.
Defense counsel also never argued below, as he does on appeal, that he should
have been allowed to recall Victim's father to cross-examine him on the matter,
and the trial court never ruled on such. See Dunbar, 356 S.C. at 142, 587 S.E.2d at
693-94 ("In order for an issue to be preserved for appellate review, it must have
been raised to and ruled upon by the trial judge. Issues not raised and ruled upon
in the trial court will not be considered on appeal."); id. at 142, 587 S.E.2d at 694
("A party may not argue one ground at trial and an alternate ground on appeal.");
Lewis, 398 S.C. at 329, 730 S.E.2d at 285 ("Issue preservation rules are designed to
give the trial court a fair opportunity to rule on the issues, and thus provide us with
a platform for meaningful appellate review." (quoting Queen's Grant II Horizontal
Prop. Regime, 368 S.C. at 373, 628 S.E.2d at 919)); Herron, 395 S.C. at 465, 719
S.E.2d at 642 ("Imposing such a requirement on the appellant 'is meant to enable
the lower court to rule properly after it has considered all relevant facts, law, and
arguments.'" (quoting I‘On, L.L.C., 338 S.C. at 422, 526 S.E.2d at 724)).

Further, even assuming the issue is properly preserved, we find no merit. Cox
argues he was entitled to cross-examine a witness concerning bias under the
Confrontation Clause. The Confrontation Clause provides a defendant with the
right "to be confronted with the witnesses against him." U.S. Const. amend. VI
(emphasis added). As noted by the State, Cox—the defendant—sought to admit
the evidence through his own defense witness. Also, the proffered testimony
reveals Victim's father did not instruct the witness to lie or say anything that he felt
was untrue, did not direct him to testify to anything he was not already going to
say, and did not ask him to change his testimony. Additionally, the conversation
the witness had with Victim's father did not, and would not, change his testimony.
Thus, not only has Cox failed to demonstrate that he was prohibited from engaging
in cross-examination, he has also failed to show that the evidence he sought to
admit demonstrated some form of bias in the witness. See State v. Gracely, 399
S.C. 363, 372, 731 S.E.2d 880, 885 (2012) ("A defendant demonstrates a
Confrontation Clause violation when he is prohibited from 'engaging in otherwise
appropriate cross-examination designed to show a prototypical form of bias . . .
from which jurors . . . could draw inferences relating to the reliability of the
witness.'" (quoting State v. Stokes, 381 S.C. 390, 401-02, 673 S.E.2d 434, 439
(2009))).

Additionally, Cox fails to argue on appeal against the trial court's ruling that the
conversation between Victim's father and the witness was inadmissible pursuant to
Rule 403, SCRE. Accordingly, this ruling is the law of the case. See State v.
Black, 400 S.C. 10, 28, 732 S.E.2d 880, 890 (2012) (noting an unchallenged ruling,
right or wrong, becomes the law of the case); State v. Sampson, 317 S.C. 423, 427,
454 S.E.2d 721, 723 (Ct. App. 1995) (holding the appellant's failure to challenge
the trial court's exclusion of evidence on the ground that its prejudicial effect
outweighed its probative value rendered it the law of the case). Further, we find no
abuse of discretion in the trial court's exclusion of the evidence pursuant to Rule
403, SCRE. The probative value is limited given the witness's assurance Victim's
father did not instruct him to lie, say anything untrue, or testify to anything he was
not already going to say, and the conversation with Victim's father would not
change his testimony. Additionally, the evidence had the potential to confuse the
issues or mislead the jury. See State v. Cottrell, 421 S.C. 622, 639, 809 S.E.2d
423, 433 (2017) ("The right to present a defense is not without limits, and the right
does not allow criminal defendants to present any evidence regardless of its
admissibility under the rules of evidence."); Rule 403, SCRE ("Although 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, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."); Cottrell, 421 S.C. at 640, 809 S.E.2d at 433 ("The decision
whether to admit evidence under [Rule 403] is . . . left to the sound discretion of
the trial judge, and the decision will only be set aside in extraordinary
circumstances where the discretion has been plainly abused.").

5. Finally, as to Cox's cumulative error argument, we also find this issue is not
preserved for our review. See State v. Beekman, 405 S.C. 225, 236-37, 746 S.E.2d
483, 489 (Ct. App. 2013) (holding a cumulative effect of errors argument is not
preserved for appeal when the issue is neither raised to nor ruled upon by the trial
court); id. at 237-38, 746 S.E.2d at 490 (noting our courts do not apply the "plain
error" rule and, therefore, holding the appellant was not allowed to argue that the
cumulative effect of several unpreserved matters deprived him of a fair trial).

Further, even assuming the argument is properly preserved, we find no prejudicial
errors combined to affect Cox's right to a fair trial. See id. at 237, 746 S.E.2d at
490 ("The cumulative error doctrine provides relief to a party when a combination
of errors, insignificant by themselves, has the effect of preventing the party from
receiving a fair trial, and the cumulative effect of the errors affects the outcome of
the trial."); id. ("An appellant must demonstrate more than error in order to qualify
for reversal pursuant to the cumulative error doctrine; rather, he must show the
errors adversely affected his right to a fair trial to qualify for reversal on this
ground."). At any rate, we find any error is harmless given the overwhelming
evidence of Cox's guilt as discussed above.
AFFIRMED.1

HUFF, WILLIAMS, and, MCDONALD JJ., concur.

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