State v. Nash

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.

James Robert
Nash, Appellant.

Appeal From Pickens County

Judge G. Edward Welmaker, Circuit Court Judge

Unpublished Opinion No. 2012-UP-075

Heard December 6, 2011 – Filed February 8,
2012  

AFFIRMED

Appellate Defender LaNelle Cantey Durant,
of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia, for Respondent.

PER CURIAM:  James
Robert Nash appeals his convictions of criminal sexual conduct (CSC) with a
minor, first degree, and lewd act on a minor under sixteen years of age.  Nash
argues the trial court erred in: (1) denying his request for a continuance in
order to reevaluate his competency; (2) qualifying an expert witness; (3)
allowing the solicitor to testify in his closing argument regarding evidence
not admitted during trial; and (4) admitting evidence of two other bad acts. 
We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to the
continuance: A trial court's decision on a motion for continuance or a request to
order a competency evaluation is within the trial court's discretion, and the
decision will not be overturned on appeal absent a clear showing of an abuse of
that discretion.  State v. Locklair, 341 S.C. 352, 364, 535 S.E.2d 420, 426 (2000)
(competency); State v. Babb, 299 S.C. 451,
454, 385 S.E.2d 827, 829 (1989) (continuance).  The test for determining
competency to stand trial is whether the defendant has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational and factual understanding of the
proceedings against him.  State v. Weik, 356 S.C. 76, 81, 587 S.E.2d
683, 685 (2002); see State v. Colden, 372 S.C. 428, 441-42, 641
S.E.2d 912, 920 (Ct. App. 2007) (finding no abuse of discretion by the trial
court in not ordering a competency examination where defendant's voir dire with
the court conclusively revealed defendant's ability to answer questions
rationally and appropriately, and defendant demonstrated a manifest
understanding of the proceedings, the roles of the participants, and the
charges he was facing).  We find no abuse of discretion in the trial court's denial
of a continuance in order to reevaluate Nash's competency.

2. As to the
qualification of the expert: The qualification of a witness as an expert
is a matter largely within the trial court's discretion.  State
v. Myers, 301 S.C. 251, 255, 391 S.E.2d 551, 554 (1990).  "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise." 
Rule 702, SCRE.  "Generally, defects in the amount and quality of an expert's education or experience go to the weight to be
accorded the expert's testimony and not to its
admissibility."  State v. Morris,
376 S.C. 189, 203, 656 S.E.2d 359, 367 (2008).  We find no abuse of
discretion in the trial court's qualification of the expert.

3. As to the
solicitor's closing argument: The trial
court has broad discretion in ruling on the propriety of closing arguments, and
ordinarily the ruling will not be disturbed on appeal.  State v. Patterson,
324 S.C. 5, 17, 482 S.E.2d 760, 766 (1997).  The appellate court will review
the argument in the context of the entire record.  Id.  "The
relevant question is whether the solicitor's comments so infected the trial
with unfairness as to make the resulting conviction a denial of due
process."  Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160,
166 (2002).  We affirm the trial court's ruling on the propriety of the
solicitor's closing argument.

4. As to the admission
of other bad acts: "Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible to show motive, identity,
the existence of a common scheme or plan, the absence of mistake or accident,
or intent."  Rule 404(b), SCRE.  "If the defendant was not convicted
of the prior crime, evidence of the prior bad act must be clear and
convincing."  State v. Gaines, 380 S.C. 23, 29, 667 S.E.2d 728, 731
(2008).  When considering whether there is clear and convincing evidence of
other bad acts, the appellate court is bound by the trial court's factual
findings unless they are clearly erroneous.  State v. Wilson, 345 S.C.
1, 6, 545 S.E.2d 827, 829 (2001).  "Even if prior bad act evidence is
clear and convincing and falls within [the common scheme or plan] exception, it
must be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice to the defendant."  Gaines, 380 S.C. at
29, 667 S.E.2d at 731. 

"To be admissible [under
the common scheme or plan exception], the bad act must logically relate to the
crime with which the defendant has been charged."  Id.  The factors
to consider in determining whether there is a close degree of similarity
between the other bad act and the crime charged in a sexual abuse case are: 
"(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, 683 S.E.2d 275, 278 (2009).  The
common scheme or plan exception is generally applied in cases of criminal
sexual conduct where alleged incidents of abuse both before and after the
charged act are admissible to show continuing or escalating illicit intercourse
between the same parties.  State v. Mathis, 359 S.C. 450, 463-64, 597
S.E.2d 872, 879 (Ct. App. 2004) (admitting evidence of three earlier assaults
on the victim where they were attempted in the same manner and under similar
circumstances); id. at 464, 597 S.E.2d at 879 (quoting State v.
Tutton, 354 S.C. 319, 328, 580 S.E.2d 186, 191 (Ct. App. 2003)) ("Sex
crimes may be unique in this respect because they commonly involve the same
victims engaged in repeated incidents occurring under very similar
circumstances.  The reason for the general admissibility of such evidence under
these circumstances is self-evident – where there is a pattern of continuous
conduct shown, that pattern clearly supports the inference of the existence of
a common scheme or plan, thus bolstering the probability that the charged act
occurred in a similar fashion.").  We affirm the trial court's ruling that
the evidence was admissible under the common scheme or plan exception, was
demonstrated by clear and convincing evidence, and that the probative value of
the evidence outweighed its prejudicial effect.

AFFIRMED.

SHORT, WILLIAMS,
and GEATHERS, JJ., concur.