State v. Campos

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.

Filiberto Garcia Campos, Appellant.

Appellate Case No. 2015-001293

Appeal From Lexington County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2018-UP-100
Submitted February 9, 2018 – Filed March 7, 2018

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia, and Solicitor Samuel R. Hubbard, III, of
Lexington, all for Respondent.

PER CURIAM: Appellant Filiberto Garcia Campos appeals his conviction for
homicide by child abuse, arguing the trial court erred by admitting certain autopsy
photographs of the victim (Victim) in violation of Rule 403, SCRE. Appellant
claims the probative value of the photographs was substantially outweighed by the
danger of unfair prejudice. We affirm.

We find the trial court did not abuse its discretion by admitting the photographs
because the probative value was not substantially outweighed by the danger of
unfair prejudice. See Rule 403, SCRE ("Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . ."); State v. Gray, 408 S.C. 601, 608, 759 S.E.2d 160, 164 (Ct. App.
2014) ("The admission of evidence is within the [trial] court's discretion and will
not be reversed on appeal absent an abuse of that discretion. A trial court has
particularly wide discretion in ruling on Rule 403 objections." (citations omitted));
State v. Lyles, 379 S.C. 328, 339, 665 S.E.2d 201, 207 (Ct. App. 2008) ("A trial
[court]'s balancing decision under Rule 403 should not be reversed simply because
an appellate court believes it would have decided the matter otherwise [due to] a
differing view of the highly subjective factors of the probative value or the
prejudice presented by the evidence." (citing United States v. Long, 574 F.2d 761,
767 (3d Cir. 1978))); Gray, 408 S.C. at 608–09, 759 S.E.2d at 164 ("In
exercising its discretion on a Rule 403 objection to the admissibility of autopsy
photographs, the trial court 'must balance the [unfair prejudice] of graphic photos
against their probative value.'" (quoting State v. Dial, 405 S.C. 247, 260, 746
S.E.2d 495, 502 (Ct. App. 2013))); Dial, 405 S.C. at 260, 746 S.E.2d at 502
(explaining a trial court "is not required to exclude relevant evidence merely
because it is unpleasant or offensive").

The probative value of the photographs in this case was high because they disputed
Appellant's defenses, were important for the State to establish multiple elements of
the charged crime, and corroborated the testimony of several witnesses. During
trial, Appellant attempted to create reasonable doubt by suggesting Victim died
from a drug overdose, perpetrated by Tracey Roach,1 rather than starvation.
Appellant also attempted to show Victim's weight loss was rapid and he did not
realize Victim was malnourished and in danger. The photographs showed Victim's
extremely emaciated condition and aided the jury in determining whether she died
from chronic starvation, as the State contended, or from a drug overdose, as
Appellant argued. Thus, they disputed Appellant's defense that Victim died from a
drug overdose. The photographs were also probative to dispute Appellant's claim
he was unaware of Victim's condition. They allowed the jury to view Victim's
condition near the time of death and determine whether Appellant's claim

1
Roach was Victim's mother, and prior to Appellant's trial, she pled guilty to
homicide by child abuse. The plea court sentenced her to life imprisonment.
regarding his ignorance of her condition was truthful. Therefore, the photographs
were highly probative for disputing Appellant's defenses.

Also, as noted above, the photographs were highly probative for proving Victim's
cause of death, which was a material fact and element the State needed to prove.
See S.C. Code Ann. § 16-3-85(A)(1) (2015) (explaining the defendant's child abuse
or neglect must be the cause of the child's death to convict the defendant under
section 16-3-85). As a result, they helped the State meet its burden of proof on a
critical issue.

Further, the photographs were important for determining whether Victim's death
occurred under circumstances manifesting extreme indifference to human life,
which was a material fact and element of the charged crime. See id. (requiring the
State to show a victim's death occurred under circumstances manifesting an
extreme indifference to human life to convict a defendant for homicide by child
abuse). The photographs were strong evidence showing Victim's condition near
the time of death. Taking the photographs together with the expert testimony that
it would have taken weeks or months for Victim to get in such a condition, the
State provided strong evidence showing Victim's death occurred under
circumstances manifesting an extreme indifference to Victim's life. The
photographs were an important part of the State establishing this element of
homicide by child abuse. Thus, the photographs were highly probative on an issue
or material fact the State needed to prove. See Gray, 408 S.C. at 610, 759 S.E.2d
at 165 ("[A] court analyzing probative value considers the importance of the
evidence and the significance of the issues to which the evidence relates.").

Finally, the photographs corroborated the testimony from several witnesses on
significant issues. See id. at 613, 759 S.E.2d at 166–67 ("Photos that corroborate
important testimony on issues significant to the case may have very high probative
value . . . ."). The experts testified Victim's cause of death was chronic starvation.
Also, several witnesses testified to Victim's extremely emaciated condition at the
time of death. These testimonies went to Victim's cause of death and whether her
death occurred under circumstances manifesting an extreme indifference to human
life, which were critical issues during trial as explained above. The photographs
corroborated these testimonies. Further, as discussed above, Appellant disputed
these critical issues, which increased the importance of corroboration via the
photographs. As a result, the photographs were highly probative for corroborating
testimony from several witnesses on issues of great importance. Accordingly, the
photographs were highly probative because they disputed Appellant's defenses,
were important for the State to establish multiple elements of the charged crime,
and corroborated the testimony of several witnesses.

Next, we find the danger of unfair prejudice from the photographs in this case was
moderate because, although likely to arouse sympathy, they were not so gruesome
or disturbing that they had an undue tendency to lead to a decision on an improper
basis and the State introduced them in an objective manner through expert
witnesses. See Gray, 408 S.C. at 616, 759 S.E.2d at 168 ("Unfair prejudice does
not mean the damage to a defendant's case that results from the legitimate
probative force of the evidence; rather it refers to evidence which tends to suggest
decision on an improper basis." (quoting State v. Gilchrist, 329 S.C. 621, 630, 496
S.E.2d 424, 429 (Ct. App. 1998))).

The photographs were not so gruesome, disturbing, or shocking as to have more
than a moderate tendency to suggest a decision on an improper basis. See id. at
617, 759 S.E.2d at 169 (finding autopsy photographs showing the victim's scalp
folded from the back of his head over his face, revealing the surface of his skull,
and exposing the brain inside the skull posed a moderate danger of unfair
prejudice). We acknowledge the photographs had the capability to produce
sympathy for Victim and could pose a danger of unfair prejudice. However, as a
mitigating factor, we believe the State admitted most of the photographs in an
objective manner. The expert witnesses described the photographs from a medical
viewpoint and gave technical explanations of how they showed chronic starvation.
See id. (explaining "the objective manner in which [the expert] presented the
photographs mitigated" the tendency to suggest a decision on an improper basis).
Thus, the danger of unfair prejudice was moderate.

To the extent Appellant relies on the alleged comments by the plea court during
Roach's guilty plea, the issue is not properly before this Court. Appellant failed to
include the transcript of Roach's guilty plea during trial or on appeal. Thus, we
have no evidence of exactly what the plea court said, what photographs the plea
court viewed, or the context in which it viewed the photographs. See Beaufort
Realty Co. v. Beaufort Cty., 346 S.C. 298, 302, 551 S.E.2d 588, 590 (Ct. App.
2001) ("This [C]ourt has repeatedly held that statements of fact appearing only in
argument of counsel will not be considered." (quoting McManus v. Bank of
Greenwood, 171 S.C. 84, 89, 171 S.E. 473, 475 (1933))). Additionally, during the
motion in limine, Appellant withdrew his motion to add Roach's guilty plea
transcript to the record. See State v. Bryant, 372 S.C. 305, 315–16, 642 S.E.2d
582, 588 (2007) (finding appellants cannot argue an issue on appeal that they
conceded during trial). As a result, any argument regarding the plea court's
statements is not properly before this Court.

Based on our findings that the probative value of the photographs was high and the
danger of unfair prejudice was moderate, we find the trial court was within its
discretion when deciding the probative value was not substantially outweighed by
the danger of unfair prejudice under Rule 403.

AFFIRMED.2

SHORT, THOMAS, and HILL, JJ., concur.

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