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Unpublished Opinion No. 2009-UP-437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.