State v. Thomas H. Brown, Jr.

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.

Thomas Henry Brown, Jr., Appellant.

Appellate Case No. 2023-000261

Appeal From Charleston County
William H. Seals, Jr., Circuit Court Judge

Unpublished Opinion No. 2025-UP-031
Submitted January 1, 2025 – Filed January 29, 2025

AFFIRMED

Appellate Defender Lara Mary Caudy, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Andrew Douglas Powell, both of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.

PER CURIAM: Thomas Henry Brown, Jr. appeals his conviction for criminal
solicitation of a minor in Charleston County and sentence of eight years'
imprisonment. On appeal, Brown argues the trial court erred in allowing testimony
that Brown solicited the minor victim (Victim) a second time in Colleton County
just hours after the first solicitation in Charleston County because such evidence
was inadmissible under Rule 404(b) of the South Carolina Rules of Evidence. We
affirm pursuant to Rule 220(b), SCACR.

We hold the trial court did not abuse its discretion in finding Victim's testimony
regarding the second solicitation was admissible to show a common scheme or
plan because meaningful similarities between the first and second solicitations
showed the same illicit conduct over the course of a few hours and tended to show
a logical connection between the acts. See State v. Phillips, 430 S.C. 319, 340, 844
S.E.2d 651, 662 (2020) ("We review a trial court's decision to admit or exclude
evidence under a deferential standard for an abuse of discretion."); State v.
Wallace, 440 S.C. 537, 542, 892 S.E.2d 310, 312 (2023) ("[A] trial court acts
outside of its discretion when the ruling is not supported by the evidence or is
controlled by an error of law."); Rule 404(b), SCRE ("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 . . .
the existence of a common scheme or plan . . . ."); State v. Gaines, 380 S.C. 23, 29,
667 S.E.2d 728, 732 (2008) ("To be admissible, the bad act must logically relate to
the crime with which the defendant has been charged."); State v. Mathis, 359 S.C.
450, 463, 597 S.E.2d 872, 879 (Ct. App. 2004) (holding "the common scheme or
plan exception 'is generally applied in cases involving sexual crimes, where
evidence of acts prior and subsequent to the act charged in the indictment is held
admissible as tending to show continued illicit intercourse between the same
parties'" (quoting State v.Weaverling, 337 S.C. 460, 469, 523 S.E.2d 787, 791 (Ct.
App. 1999)); State v. Edwards, 373 S.C. 230, 236, 644 S.E.2d 66, 69 (Ct. App.
2007) (holding that because defendant's prior acts occurred over an approximately
ten-month span with the same victim, in the same manner, the acts constituted a
"continued illicit intercourse between the same parties" (quoting Mathis, 359 S.C.
at 463, 597 S.E.2d at 879)), affirmed as modified by 383 S.C. 66, 678 S.E.2d 405
(2009). Here, the evidence showed the second solicitation occurred on the same
day as the first, to the same victim, in the same way, and using the exact same
words. Compare State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d 107, 117 (Ct. App.
2008) ("When a criminal defendant's prior bad acts are directed toward the same
victim and are very similar in nature, those acts are admissible as a common
scheme or plan."), with State v. Perry, 430 S.C. 24, 39, 842 S.E.2d 654, 662 (2020)
(holding a defendant's prior bad acts of criminal sexual misconduct were
inadmissible when the defendant committed the acts against different victims of
different ages and the location of the abuse—in the home—was "too general" to
constitute a meaningful similarity).
Further, we hold Victim's testimony constituted clear and convincing evidence of
the second solicitation. See State v. Stokes, 381 S.C. 390, 404, 673 S.E.2d 434,
441 (2009) (holding the evidence that the defendant committed the bad act must be
clear and convincing when the defendant was not convicted of the other crime).
Victim testified in detail about the first and second solicitations and relayed
Brown's specific words, as well as the approximate time and location of each act.
Further, the trial court reviewed Victim's forensic interview, taken just weeks after
the incidents occurred, and Victim's testimony at the hearing was consistent with
her forensic interview. See State v. Tutton, 354 S.C. 319, 325, 580 S.E.2d 186, 189
(Ct. App. 2003) ("When considering whether there is clear and convincing
evidence of other bad acts, this court is bound by the trial judge's factual findings
unless they are clearly erroneous."); Kirton, 381 S.C. at 26-27, 671 S.E.2d at
116-17 (holding the victim's testimony alone was sufficient to establish clear and
convincing evidence of prior bad acts).

Finally, we hold the probative value of the evidence of the second solicitation in
Colleton County was not substantially outweighed by the danger of unfair
prejudice. See State v. Gillian, 373 S.C. 601, 611 646 S.E.2d 872, 877 (2007)
(holding prior bad act evidence must be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice). The evidence of the
second solicitation was highly probative, and because the jury already heard
Victim's testimony of Brown's first solicitation of her in Charleston County, its
hearing the exact same wording a second time would not be unfairly prejudicial to
Brown. See Edwards, 373 S.C. at 236, 644 S.E.2d at 69 (holding the probative
value of evidence of defendant's continuous illicit conduct towards victim
outweighed the prejudicial effect of admitting the evidence); Stokes, 381 S.C. at
404, 673 S.E.2d at 441 ("[T]he determination of prejudice must be based on the
entire record, and the result will generally turn on the facts of each case.").

AFFIRMED. 1

THOMAS, HEWITT, and VINSON, JJ., concur.

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