State v. Jenkins

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.

Leonard Eugene Jenkins, Appellant.

Appellate Case No. 2013-001753

Appeal From York County
Donald B. Hocker, Circuit Court Judge

Unpublished Opinion No. 2015-UP-429
Submitted April 1, 2015 – Filed August 19, 2015

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General John Benjamin Aplin, both of
Columbia; and Solicitor Kevin Scott Brackett, of York,
for Respondent.

PER CURIAM: Leonard Eugene Jenkins appeals his conviction for lewd act
upon a child, arguing his Sixth Amendment right to confrontation and his
Fourteenth Amendment right to present a complete defense were violated by the
trial court ruling a video recording of an interview of the minor victim (Minor) was
inadmissible. Jenkins also asserts the trial court erred in ruling the video was
inadmissible as extrinsic evidence of prior inconsistent statements under Rule
613(b), SCRE, because Minor did not unequivocally admit to making the prior
statements.

1. Because Jenkins did not make any argument at trial regarding his rights under
the Sixth or Fourteenth Amendments, these issues are not preserved for our review.
See State v. Rogers, 361 S.C. 178, 183, 603 S.E.2d 910, 912-13 (Ct. App. 2004)
(stating an issue must have been raised to and ruled upon by the trial court in order
to preserve the issue for appellate review).

2. Jenkins argues the video was admissible under Rule 613(b), SCRE, to impeach
Minor's testimony on the following issues: (1) the time period in which the alleged
incident occurred, (2) the position in which Minor had her legs at the time of the
alleged incident, (3) the color of the shirt Minor was wearing at the time of the
alleged incident, (4) the way Jenkins touched Minor, and (5) the reason Minor
delayed disclosing the incident.

As to Minor's testimony regarding the time period in which the alleged incident
occurred and the position in which Minor had her legs at the time of the alleged
incident, the trial court properly ruled the video was inadmissible because Minor
admitted making the prior inconsistent statements. See Rule 613(b), SCRE (stating
extrinsic evidence of a prior inconsistent statement by a witness is inadmissible if
the witness admits making the prior statement).1

As to Minor's testimony regarding the color of the shirt she was wearing at the time
of the alleged incident, the trial court properly ruled the video was inadmissible
because the testimony concerned a collateral issue, not subject to impeachment by
the admission of extrinsic evidence. See State v. Beckham, 334 S.C. 302, 321, 513
S.E.2d 606, 615 (1999) ("When a witness denies an act involving a matter

1
Jenkins argues the State's redirect examination of Minor had the effect of
converting Minor's admissions into equivocations, subject to impeachment under
Rule 613(b), SCRE. Jenkins did not raise this specific argument at trial;
accordingly, it is unpreserved. See Rogers, 361 S.C. at 183, 603 S.E.2d at 912-13
(stating an issue must have been raised to and ruled upon by the trial court in order
to preserve the issue for appellate review); id. at 183, 603 S.E.2d at 913 (stating the
issue must have been raised to the trial court with sufficient specificity).
collateral to the case in chief, the inquiring party is not permitted to introduce
contradictory evidence to impeach the witness."). This rule applies equally when a
witness denies making a prior inconsistent statement regarding a collateral matter.
See State v. Galloway, 263 S.C. 585, 590-93, 211 S.E.2d 885, 887-89 (1975)
(applying the collateral issue rule to a prior inconsistent statement). When
determining whether a prior inconsistent statement is collateral, we look to whether
the prior inconsistent statement was relevant to the case. See id. at 593, 211 S.E.2d
at 889 (explaining "[t]he true question is one of relevance" when determining
whether a prior inconsistent statement is collateral). Evidence is relevant if it has
"any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." Rule 401, SCRE. The color of the shirt worn by Minor at
the time of the alleged incident had no evidentiary value and was not relevant to
any issue of consequence in this case. Accordingly, the trial court properly ruled
the video was inadmissible for the purpose of impeaching Minor's testimony on
this issue.

As to Minor's testimony regarding the way Jenkins touched her, we find Minor's
statement in the video was not inconsistent with her testimony at trial.
Accordingly, Rule 613(b), SCRE, does not apply, and the trial court properly
found the video inadmissible to impeach Minor's testimony on this issue. See Rule
613(b), SCRE (providing for the admission of extrinsic evidence at trial to prove a
prior inconsistent statement by a witness).

Finally, as to Minor's testimony regarding her delayed disclosure of the incident,
the trial court properly found the video inadmissible because Jenkins was not
seeking to prove a prior inconsistent statement but rather a prior statement was
never made. At trial, Minor testified she delayed disclosing the incident because
she was afraid of losing her friendship with Jenkins's stepdaughter. Jenkins sought
to impeach this testimony through the admission of the video, arguing Minor did
not mention in the interview that her friendship with Jenkins's daughter was the
reason for her delayed disclosure. Rule 613(b), SCRE, does not allow for the
video to be admitted for this purpose. See Rule 613(b), SCRE (allowing for the
admission of prior inconsistent statements by a witness if the witness denies
making the statement).

Furthermore, we find Jenkins was not prejudiced by the trial court's decision to
exclude the video because he was allowed to extensively cross-examine Minor and
the police officer who interviewed Minor in the video. Accordingly, we will not
disturb the trial court's ruling. See State v. Kromah, 401 S.C. 340, 349, 737 S.E.2d
490, 494-95 (2013) ("The admission or exclusion of evidence is a matter addressed
to the sound discretion of the trial court and its ruling will not be disturbed in the
absence of a manifest abuse of discretion accompanied by probable prejudice."
(internal quotation marks and citation omitted)).

For the foregoing reasons, the ruling of the trial court is

AFFIRMED. 2

FEW, C.J., and HUFF and WILLIAMS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.