State v. Brown

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Worley Lee Brown,       
Appellant.

Appeal From Anderson County

J. C. Buddy Nicholson, Jr., Circuit
Court Judge

Unpublished Opinion No. 2004-UP-197

Submitted February 9, 2004 – Filed March
25, 2004.

AFFIRMED

H.W. Pat Paschal, Jr., of Greenville and L. Patrick Mulligan,
of Dayton, Ohio, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor
Druanne Dykes White, of Anderson, for Respondent.

PER CURIAM:  Worley Lee Brown was indicted
on one count of first-degree criminal sexual conduct with a minor and one count
of committing or attempting a lewd act upon a child under the age of sixteen. 
He was convicted on the second charge and sentenced to fifteen years incarceration,
suspended upon service of ten years and five years probation.  He raises several
issues on appeal.  We affirm. [1]
 

FACTS

Victim, a ten-year-old female, was spending the
night at the home of Worley Lee Brown and his wife, Annie Brown.  Victim
wanted to play a computer game, and Brown agreed to help her.  Annie walked
up to them while they were playing the game and saw Brown’s hand on Victim’s
genital area.  Upon seeing this, Annie became upset and told Brown to leave
the house.  

The incident was reported to Rusty Garrett,
an investigator with the Anderson County Sheriff’s Department.  With Investigator
Jami Brothers, Garrett interviewed Victim at her school.  Brown was indicted
following the investigation. 

Brown voluntarily submitted to a polygraph examination. 
During an interview before the examination, Brown stated Victim had put his
hand down her panties immediately before Annie walked up, and admitted there
was a possibility that his finger penetrated Victim’s vagina. 

At trial, Victim testified Brown had touched
her breasts and her vagina. 

The State then called Dr. Horace Smith, a pediatrician
and expert in child sexual assault who had examined Victim.  When the State
asked Dr. Smith what Victim had given him as far as background or history, Brown
objected.  Outside the jury’s presence, Brown’s attorney argued: 

Your Honor, according to the State v. Dawkins and
Jolly v. State, my objection is, number one, it’s hearsay; and, number
two, it’s corroboration or bolstering of her witness.  And they – she can introduce
evidence that this person indicated there was an assault, but it’s limited. 
The details and the particulars are not admissible, but so much of the complaint
as identifies a time and a place may be shown.

The court overruled Brown’s objection, and Dr. Smith
testified Victim told him someone had touched her on her genital area on more
than one occasion, and that it sometimes hurt.  He also testified Victim told
him she was touched repeatedly on the breasts.  

During the State’s direct examination
of Annie, Brown objected to a leading question and was overruled.  After Brown
cross-examined Annie, the court indicated that Brown’s objection was overruled
pursuant to Rule 611(c), SCRE, because Annie was “very well identified” with
Brown because she had been married to him for twenty years.  Accordingly, the
trial court allowed the State to ask Annie leading questions on re-direct examination. 

During the cross-examination of Mary
Lesley, one of Brown’s neighbors, Brown asked if Annie had ever told her that
Victim had accused her grandfather of molesting her.  The court sustained the
State’s objection to the question.  At the conclusion of her testimony, and
outside the jury’s presence, Lesley stated that she was unaware of any allegations
about Victim’s grandfather.  

LAW/ANALYSIS

I.  Other Bad Acts

Brown contends the trial court erred in permitting
evidence that Brown had touched Victim’s breasts at least ten times.  He argues
this evidence, provided through Victim’s testimony and Dr. Smith’s testimony,
constituted impermissible bad acts evidence.  This issue is not preserved.

To be preserved for appellate review, an issue
must have been raised to and ruled on by the trial judge.  Brown did not object
to Victim’s testimony regarding these acts.  Thus this issue is not preserved
as to her testimony.  See State v. Perez, 334 S.C. 563, 565-66,
514 S.E.2d 754, 755 (1999) (issues not raised to and ruled upon by the trial
court will not be considered on appeal).  Further, although Brown did object
to Dr. Smith’s testimony regarding these acts, his only objection to this testimony
was that it constituted hearsay and improper corroboration.  Because his argument
on appeal differs from the one asserted at trial, it is also not preserved for
our review.  State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989)
(holding a party cannot argue grounds on appeal different than those argued
to the trial judge).

II.  Rape Shield Law

Brown argues the trial court improperly
excluded under the rape shield statute evidence of unpursued sexual abuse accusations
Victim made against her grandfather.  We find no error.

During cross-examination of Brown’s neighbor
Mary Lesley, Brown asked if Annie told her Victim had initially accused her
grandfather of the sexual abuse in question.  When the State objected,
the trial court held a bench conference and sustained the objection.  Neither
the grounds for the objection nor the court’s rationale in sustaining it appear
in the record.

Although the record does not reflect
the court’s reasoning, we find the objection was properly sustained because
the testimony would have been impermissible hearsay.  Repeating whether Annie
had told her about an accusation made by Victim would have been offered for
the truth of the matter asserted—that Victim accused her grandfather of sexual
abuse—and does not fall within any of the exceptions to the rule against hearsay. 
Rule 801, SCRE (hearsay is an out-of-court statement offered in court to prove
the truth of the matter asserted); 802, SCRE (hearsay is inadmissible except
as provided in statute or court rule); 803, SCRE (hearsay exceptions – availability
of declarant immaterial).  Thus the trial court properly excluded the testimony. 
See I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 418-21,
526 S.E.2d 716, 721-25 (2000) (holding an appellate court can affirm for any
reason appearing in the record).  Additionally, at the conclusion of Lesley’s
testimony, she testified outside the jury’s presence she was not aware of any
allegations against Victim’s grandfather.  Thus, Brown could not have
been prejudiced by the exclusion of Lesley’s testimony on the matter. 

III.  Bolstering Hearsay

Brown asserts the trial court erred in
allowing corroborative testimony from Dr. Smith, Inspector Garrett, and Inspector
Brothers.  He contends their testimony improperly bolstered Victim’s testimony. 
Additionally, he argues the prosecutor personally bolstered Victim’s testimony
by asking her about prior conversations she had with the prosecutor and Dr.
Smith.  We find no error.

Initially we note Brown did not object
to any corroborative testimony offered by Inspectors Garrett and Brothers. 
Thus this issue is not preserved as to these grounds. 

Brown did object to Dr. Smith’s testimony, but
the same was permitted under the well-recognized medical diagnosis and treatment
exception to the hearsay rule.  Dr. Smith testified the child reported she was
repeatedly touched on the breasts, touched on her vagina, and that sometimes
the vaginal contact hurt.  Because this information was necessary for Dr. Smith
to better assess any mental and physical injury, the testimony was admissible
under the hearsay exception for statements made for purposes of medical diagnosis
or treatment.  Rule 803(4), SCRE.

IV.  Ineffective Assistance of Counsel

Brown contends his conviction should be
reversed because his trial counsel was ineffective for allowing him to submit
to a polygraph examination and for failing to accompany him during the examination.

This court is an appellate court for the correction
of errors of law committed at the trial level.  We do not consider claims of
ineffective assistance of counsel on direct appeal from convictions.  Instead,
such claims should be brought in a proceeding for post-conviction relief.  State
v. Felder, 290 S.C. 521, 522, 351 S.E.2d 852, 852 (1986) (“Without addressing
the merits of appellant’s claim, we hold that post-conviction relief rather
than a direct appeal is the proper avenue of relief in this case.”). 

V.  Redirect Examination of Annie Brown

Brown asserts the trial court erred in
allowing the State to ask Annie leading questions on redirect.  We disagree.

Ordinarily, leading questions should not
be used on direct examination except as necessary to develop the witness’ testimony. 
Rule 611(c), SCRE.  However, “[w]hen a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party, interrogation may be by
leading questions.”  Id.  Contrary to Brown’s contention that the trial
court declared Annie a hostile witness, the court clearly indicated it was allowing
leading questions under Rule 611(c), SCRE because Annie was identified with
Brown.  At the time she testified at trial, Annie had been married to Brown
for almost twenty years.  Given that she was testifying for the State while
married to the defendant, we find no error in the court’s conclusion that she
“identified with an adverse party.”  Id.  Accordingly, the trial court
acted well within its discretion under Rule 611 in allowing the State to elicit
Annie’s testimony through leading questions.

VI.  Cumulative Errors

Having concluded each of Brown’s issues lack merit,
we find application of the cumulative error doctrine inappropriate in this case.

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.

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