State v. Nellis

STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Anthony Nellis, Jr.,       
Appellant.

Appeal From Dorchester County

Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2003-UP-459

Heard April 9, 2003 – Filed July 8,
2003

REVERSED

Jennifer L. Queen, Kelly Knight Boyd, and Mark Alan Leiendecker,
all of Summerville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.

PER CURIAM:  Anthony Nellis, Jr., appeals
his conviction for criminal sexual conduct (“CSC”) with a minor in the first
degree, arguing the trial court erred by admitting evidence of prior bad acts
in violation of Rule 404(b), SCRE.  We reverse.

FACTS/PROCEDURAL HISTORY

Nellis married the victim’s mother (“Mother”) in New
Jersey in June, 1998.  At the time of the marriage the victim was seven years
old.  Subsequently, Nellis, Mother, and the victim moved first to North Carolina,
then to Georgia, and finally to South Carolina.

According to the victim, one afternoon in October 1999,
Mother was working at the office of the apartment complex where the family lived. 
While Nellis was in the family’s apartment, the victim entered the apartment
to change into her swimsuit.  Nellis entered the victim’s room and vaginally
penetrated the victim with his penis.  Following the assault, Nellis instructed
the victim not to tell Mother.  A few days later, the victim went to the school
nurse and complained of seeing blood while urinating.  The nurse gave the victim
a sanitary napkin and called Mother to inform her the nurse thought the victim
might have begun to menstruate.  Later, the victim told Mother Nellis had been
having sex with her.

Nellis was indicted for CSC with a minor.  At trial,
subject to Nellis’ objection, the victim testified Nellis vaginally penetrated
her several times while the family lived in North Carolina, Georgia, and South
Carolina.  She testified further that on each occasion Nellis instructed her
not to tell Mother.  She testified some of the encounters occurred while Mother
was home, while others occurred with Mother away from the home.  Also subject
to Nellis’ objection, other witnesses offered similar, hearsay testimony based
on information obtained from conversations they had with the victim prior trial.

Nellis was convicted of CSC with a minor and sentenced
to sixteen years imprisonment.  Nellis appeals.

LAW/ANALYSIS

Nellis asserts the trial court erred in admitting
the testimony, alleging prior bad acts in violation of 404(b), SCRE.  Nellis
argues the prior bad acts were not so substantially similar to the charged offense
to fall within the common scheme or plan exception.  We agree.

Evidence of an accused’s other acts is not admissible
to prove the propensity of the accused to commit the crime charged.  Rule 404(b),
SCRE.  However, evidence of prior bad acts may be admitted “to show . . . the
existence of a common scheme or plan.”  Id.; see State v. Lyle,
125 S.C. 406, 416, 118 S.E. 803, 807 (1923).  For evidence to be admissible
under the common scheme or plan exception, the “[t]he record must support a
logical relevance between the prior bad act and the crime for which the defendant
is accused.”  State v. Brooks, 341 S.C. 57, 61, 522 S.E.2d 325, 327 (2000). 
Thus, the trial court should not admit the evidence if the court does not clearly
perceive the connection between the prior bad act and the crime charged.  Id.
at 61-62; 533 S.E.2d at 327-28.

Both this Court and our supreme court have addressed
the admissibility of Lyle evidence in child sexual assault cases on numerous
occasions.  In State v. McClellan, 283 S.C. 389, 323 S.E.2d 772 (1984),
a father was tried for the sexual abuse on only one of his three daughters. 
The trial court permitted all three daughters to testify regarding how their
father abused them.  With each daughter, the father’s abuse began when the girl
turned twelve.  He demanded they come to his bedroom, where he quoted the same
Bible verse to each of them and informed them he was teaching them how to “be
with their husbands.”  McClellan, 283 S.C. at 391, 323 S.E.2d at 773. 
The McClellan court found no error with the admission of the other daughters’
testimony because the facts of the prior bad acts were substantially similar
to the charged offense and showed the father’s common scheme and plan.  283
S.C. at 391, 323 S.E.2d at 773.

Similarly, in State v. Adams, 332 S.C. 139,
504 S.E.2d 124 (Ct. App. 1998), the defendant was charged with assault with
intent to commit criminal sexual conduct against his step-daughter.  The trial
court admitted evidence of the defendant’s prior sexual abuse of his other step-daughter. 
This Court found no error in the trial court’s admission of the evidence because
the abuse of both step-daughters occurred when the girls were approximately
the same age, the defendant abused the victims in the same manner --- the defendant
used his relationship as their step-father to control the victims --- the abuse
of both victims began in a hammock, both victims were also attacked in the defendant’s
truck, the defendant showed both victims pornographic movies, and the defendant
picked the locks of both victims’ rooms to watch the victims dressing.  Id.
at 142-42; 504 S.E.2d at 126.

After having reviewed the record, we find it difficult
to clearly perceive the connection between the charged offense and Nellis’ prior
acts of sexual misconduct.  Specifically, the testimony regarding Nellis’ prior
sexual assaults does not establish the existence of a substantial similarity
with the sexual assault for which he is currently charged.  See State
v. Tutton, 354 S.C. 319, ___, 580 S.E.2d 186, 191, 194 (Ct. App. 2003) (holding
“there must be evidence that the defendant employed a common scheme or plan
in the commission of the [sex] crimes”).

The victim testified Nellis assaulted her on several
occasions, in various rooms of the home, and in multiple geographic locations. 
Some acts were performed while Mother was home, while other acts were performed
while Mother was away from the home.  The other witnesses who testified simply
reiterated hearsay testimony almost identical to that offered by the victim.

Based on this limited testimony, the record lacks
sufficient detail from which this Court could “‘clearly perceive the connection
between the extraneous criminal transaction and the crime charged, that is,
its logical relevancy[; thus,] the accused should be given the benefit of the
doubt and the evidence should be rejected.’”  See State v. Berry,
332 S.C. 214, 219, 503 S.E.2d 770, 773 (Ct. App. 1998) (quoting Lyle,
125 S.C. at 417, 118 S.E. at 807).  Therefore, we conclude the trial court erred
in admitting the testimony of Nellis’ prior bad acts.

Furthermore, we think it clear Nellis suffered
prejudice as a result of the admission of this testimony.  See State
v. Parker, 315 S.C. 230, 234, 433 S.E.2d 831, 833 (1993) (holding the improper
admission of bad acts evidence is subject to a harmless error analysis).  “Whether
the improper introduction of this evidence is harmless requires us to look at
the other evidence admitted at trial to determine whether the defendant’s ‘guilt
[was] conclusively proven by competent evidence, such that no other rational
conclusion could be reached.’”  Berry, 332 S.C. at 220, 503 S.E.2d at
773 (quoting Parker, 315 S.C at 234, 433 S.E.2d at 833).

In the present case, the evidence introduced at
trial consisted almost entirely of the testimony regarding Nellis’ prior bad
acts, none of which was admissible.  Moreover, Mother vehemently denied Nellis
committed the charged offense, and no physical evidence established Nellis as
the perpetrator of the charged offense.  Thus, we cannot say that without the
testimony of Nellis’ prior bad acts, the evidence before the jury was so overwhelming
that a guilty verdict was the only rational conclusion.  See id.

CONCLUSION [1]

For the foregoing reasons, we find the trial court
erred in admitting evidence of Nellis’ prior bad acts.  The admission of this
evidence was not harmless, and thus, Nellis’ conviction is

REVERSED.

STILWELL and HOWARD, JJ., and
STROM, Acting Judge, concur.

[1] Although Nellis raises numerous additional issues on appeal, because
of our holding regarding the admission of prior bad act evidence, we need
not address these issues.