State v. Burrows

SCREENING REPORT

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.

Stoney Burrows,       
Appellant.

Appeal From Williamsburg County

Howard P. King, Circuit Court Judge

Unpublished Opinion No. 2004-UP-222

Submitted January 29, 2004 – Filed March
30, 2004

REVERSED

Deputy Chief Attorney Robert M. Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Special Assistant Attorney Amie L. Clifford, all of
Columbia; and Solicitor C. Kelly Jackson, of Sumter, for Respondent.

PER CURIAM: Stoney Burrows
was indicted for assault and battery with intent to kill (“ABWIK”).  He was
convicted of the lesser-included offense of assault and battery of a high and
aggravated nature (“ABHAN”).  Burrows was sentenced to ten years imprisonment,
suspended on the service of six years imprisonment and three years probation. 
Burrows appeals, arguing the circuit court erred by admitting his prior conviction
for ABWIK.  We reverse.

FACTUAL/PROCEDURAL BACKGROUND

Burrows was indicted for ABWIK.  At trial, the
State’s case consisted of the testimony of one witness, Steven Hemingway.  Hemingway
testified that on the night of the altercation, Burrows instigated the fight
inside the bar.  Hemingway testified that once he was outside the bar Burrows
ran into him with a vehicle before hitting him repeatedly with a two-by-four
board.

Hemingway admitted that he had been drinking the
night the altercation took place.  He also testified he had been displeased
with Burrows over an incident that happened at his house two weeks prior to
the altercation.

On cross-examination, Burrows elicited testimony
that Hemingway was the larger of the two men, weighing at least fifty pounds
more than Burrows.

Prior to Burrows taking the stand, the State sought
to admit several of Burrows’ prior convictions for impeachment purposes.  Burrows
objected to the admission of his conviction for ABWIK.  The circuit court allowed
the conviction into evidence for impeachment purposes, stating that because
Burrows was physically smaller than the victim in the prior conviction it was
probative of the issue of relative size raised in this case.

Burrows testified Hemingway began the altercation
inside the bar, hitting Burrows across the face with the board.  Burrows explained
he attempted to leave in his vehicle but Hemingway swung the board through his
window and broke his mirror.  Burrows testified he did not start the vehicle
during the altercation so he could not have hit Hemingway with the vehicle.

During cross-examination, the State established
that Burrows had been convicted of ABWIK on a previous occasion and that he
had been smaller than the victim in that case.

Burrows was convicted of the lesser-included offense
of ABHAN.  Burrows was sentenced to ten years imprisonment, suspended on the
service of six years imprisonment and three years probation.  Burrows appeals.

STANDARD OF REVIEW

Admission of evidence falls within the
circuit court’s discretion and will not be disturbed on appeal absent abuse
of that discretion. State v. Shuler, 353 S.C. 176, 184, 577 S.E.2d 438,
442 (2003).  “An abuse of discretion occurs when the trial court’s ruling is
based on an error of law.” State v. Foster, 354 S.C. 614, 621, 582 S.E.2d
426, 429 (2003).

DISCUSSION

Burrows argues the circuit court erred by admitting
his prior conviction of ABWIK for impeachment purposes because the circuit court
failed to correctly apply the factors in State v. Colf, 337 S.C. 622,
525 S.E.2d 246 (2000).  We agree.

Rule 609(a)(1), SCRE, requires the circuit court
to balance the probative value of the evidence for impeachment purposes against
the prejudice to the accused.

In determining whether the probative value of a
prior conviction outweighs its prejudicial effect, a circuit court should consider
the following factors: “1. [t]he impeachment value of the prior crime; 2. [t]he
point in time of the conviction and the witness’s subsequent history; 3. [t]he
similarity between the past crime and the charged crime; 4. [t]he importance
of the defendant’s testimony; 5. [t]he centrality of the credibility issue.”
Colf, 337 S.C. at 627, 525 S.E.2d at 248; State v. Martin, 347
S.C. 522, 530, 556 S.E.2d 706, 710 (Ct. App. 2001) (“[T]his court has implicitly
recognized the value of these [Colf] factors in making such a determination
under Rule 609(a)(1).”).

The State sought to admit Burrows’ prior conviction
for ABWIK, arguing “it would indicate to the jury that this defendant is not
only capable but willing . . . [to commit] a crime of this nature . . . [and
it] would clearly indicate to the jury that [the disparity in] size isn’t necessarily
a factor here given that the defendant is predisposed to such crimes.”  Burrows
argued that the reasons given by the State were the precise reasons the conviction
should not be admitted.  The circuit court found the conviction was admissible
because the conviction was for an assault of a person of larger stature than
Burrows, and the disparity in size between Burrows and Hemingway had been raised
in this case.

“[W]hen the prior offense is similar to the offense
for which the defendant is on trial, the danger of unfair prejudice to the defendant
from impeachment by that prior offense weighs against its admission.”  State
v. Dunlap, 353 S.C. 539, 542, 579 S.E.2d 318, 320 (2003).  A prior conviction
is inadmissible to show the defendant “acted in conformity with his prior convictions.”
 State v. Cheatham, 349 S.C. 101, 108-09, 561 S.E.2d 618, 622
(Ct. App. 2002).

In making its determination, the circuit court failed
to correctly apply the Colf factors.  The circuit court’s ruling was
based on one of the Colf factors, “[t]he similarity between the past
crime and the crime charged.” Colf, 337 S.C. at 627, 525 S.E.2d at 248. 
However, instead of displaying concern about the similarity between the prior
conviction and the alleged crime, the circuit court made this similarity the
basis for its decision.  Specifically, the circuit court found the conviction
was admissible for the purpose of establishing Burrows’ propensity to attack
victims larger than himself. We hold this was error. Id. at 628, 525
S.E.2d at 249 (“The trial judge here erred in treating the prior crimes as if
their similarity heightened their probative value when it actually increased
their prejudicial effect.”).

Further, the error was not harmless because the competent
evidence put forth to convict Burrows did not conclusively prove his guilt. 
State v. Livingstone, 282 S.C. 1, 6, 317 S.E.2d 129, 132 (1984) (“[W]here
guilt is conclusively proven by competent evidence and no rational conclusion
can be reached other than the accused is guilty, a conviction will not be set
aside because of insubstantial errors not affecting the result.”).  Hemingway
was the only witness to testify for the State.  He admitted to having two or
three beers on the night of the altercation and to being displeased with Burrows
over an incident that happened at Hemingway’s house two weeks prior to the altercation. 
Hemingway testified Burrows instigated the fight inside the bar.  He testified
that once he was outside the bar Burrows ran into him with a vehicle and hit
him with the board.  However, Burrows testified Hemingway began the fight. 
Burrows testified he did not drive into Hemingway with his vehicle and he only
hit Hemingway in response to Hemingway’s physically aggressive behavior.  The
State did not call the owner of the bar, a person who could have testified as
to who started the altercation.  The State also chose not to call an individual
who helped break up the fight, a person who could have testified as to whether
Hemingway had been hit by a vehicle.

Under these circumstances, we cannot hold beyond a
reasonable doubt that the affirmative answer to the State’s question regarding
Burrows’ prior conviction for ABWIK, the same crime for which he was accused
in this trial, did not irreparably damage Burrows’ credibility in each juror’s
mind. Because the circuit court erred by allowing the prior conviction for ABWIK
to be use for impeachment purposes, and Burrows was prejudiced by that error,
we reverse. State v. Harvey, 275 S.C. 225, 227, 268 S.E.2d 587, 588 (1980)
(holding prejudicial error is grounds for reversal).

CONCLUSION

For the foregoing reasons, Burrows’ conviction is

REVERSED.

GOOLSBY, HOWARD, and KITTREDGE,
JJ., concurring.