State v. Campbell

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.

Joe Harold Campbell, Appellant.

Appeal From Greenville County

 C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2010-UP-228

Heard March 3, 2010 – Filed April 1, 2010   

AFFIRMED

M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and
Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and
Solicitor Robert Mills Ariail, of Greenville, for Respondent.

PER CURIAM:  Joe
Harold Campbell appeals from a jury verdict finding him guilty of first-degree criminal sexual conduct with a minor. 
Campbell argues the circuit court erred in admitting testimony concerning his
abuse of a different child and in denying his motion for a mistrial.  We affirm.

1. Campbell argues the
circuit court erred in admitting the testimony of his abuse of a different
child.  We agree the circuit court erred in finding the testimony admissible
under Rule 404(b), SCRE, to show motive
and intent.  See State v.
Nelson, 331 S.C. 1, 11, 501 S.E.2d
716, 721 (1998) (holding a person commits a sexual offense for the obvious
motive of sexual gratification, and where this fact is apparent from the
charges, evidence of motive and intent are not a material issue).  However, we
affirm on the ground the testimony was admissible under Rule 404(b), SCRE, to
show common scheme or plan.  Rule 220(c), SCACR, provides the appellate court may rely on any other reason
appearing in the record to affirm the lower court's ruling, order, decision or
judgment.  "It is within the appellate court's discretion whether to
address any additional sustaining grounds."  I'On v. Town of Mount
Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000).  Rule 404(b), SCRE, permits the admission of evidence of a
common scheme or plan, and such evidence is relevant because proof of one is
strong proof of the other.  State v. Wallace, 384 S.C. 428, 433, 683
S.E.2d 275, 277 (2009).  "When determining whether evidence is admissible
as common scheme or plan, the trial court must analyze the similarities and
dissimilarities between the crime charged and the bad act evidence to determine
whether there is a close degree of similarity."  Id. at 433, 683
S.E.2d at 277-78.  "When the similarities outweigh the dissimilarities,
the bad act evidence is admissible under Rule 404(b)."[1]  Id.

2.  Campbell argues the circuit
court erred and abused its discretion in refusing to grant a mistrial after the
victim's testimony about a news story exceeded the scope agreed upon by the
parties.  Campbell objected when he felt the testimony inferred he had been
similarly and recently charged with sexual abuse.  However, the objection was
never ruled upon, and therefore, the issue is not preserved.  See State
v. McKnight, 352 S.C. 635, 646-47, 576 S.E.2d 168, 174 (2003) (providing an
issue must be raised to and ruled upon by the trial court to be preserved for
review).

AFFIRMED.

SHORT,
WILLIAMS, and LOCKEMY, JJ., concur.

[1] Our supreme court suggested the circuit court
consider the following factors when determining whether there is a close degree
of similarity between the bad act and the crime charged: (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.  State v.
Wallace, 384 S.C. 428, 433-34, 683 S.E.2d 275,
278 (2009).