State v. Berry

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.

Kristopher Wilmont Berry, Appellant.

Appellate Case No. 2011-198246

Appeal From Darlington County
J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2013-UP-396
Heard September 12, 2013 – Filed October 30, 2013

AFFIRMED

Appellate Defenders Dayne C. Phillips and Carmen V.
Ganjehsani, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Christina J. Catoe, both of Columbia,
for Respondent.

PER CURIAM: Appellant Kristopher Berry challenges his conviction for
criminal solicitation of a minor. Appellant argues the trial court violated Rule 403
of the South Carolina Rules of Evidence by admitting into evidence a photograph
showing Appellant when he was naked because Appellant stipulated to his
ownership of the cell phone containing the photograph and Appellant did not send
the photograph to the minor victim. Appellant also argues the trial court erred in
admitting evidence of the offenses that led to Appellant's other-than-honorable
discharge from the military. We affirm.

FACTS/PROCEDURAL HISTORY

Appellant was the victim's gymnastics coach. In December 2009, Appellant
purchased a prepaid cell phone for the victim so that he and the victim could send
private text messages to one another. One month later, victim's father discovered
the prepaid cell phone; on the prepaid phone, he found inappropriate text messages
of a sexual nature that Appellant had sent to the victim.

In September 2010, Appellant was indicted for committing a lewd act upon a
minor under the age of sixteen and criminal solicitation of a minor. At trial, the
victim testified that Appellant had sent her a text message stating that he wanted to
get her "out of her panties." Additionally, the victim identified several text
messages from Appellant regarding setting up a time and location for a sexual
encounter. In one text message, Appellant stated, "I can see us having sex, but the
kiss should be interesting." When questioned as to whether anything happened
between her and Appellant, the victim admitted that Appellant had "French-kissed"
her in the gym's office during a practice session.

On direct examination, Appellant admitted to purchasing the prepaid cell phone,
giving it to the victim, and sending the text messages to the victim. However, he
claimed that the text messages he had sent to the victim were just jokes. He further
testified that he never touched the victim inappropriately.

During cross-examination, Appellant repeatedly denied ownership of a cell phone
that was collected from him after his initial interview with police. When shown
the cell phone, Appellant responded, "This does not look like my phone."
Appellant also testified, "I never lie."

Following Appellant's testimony, the State sought to admit a photograph of
Appellant recovered from the cell phone in question. The photograph depicted
Appellant, naked but covering his "private area" with his hand, holding the cell
phone up in front of himself to take a picture of himself in the mirror. Defense
counsel objected to the admission of the photograph, arguing that the photograph
was unfairly prejudicial. The trial court found that the photograph was directly
relevant and probative on the issue of Appellant's credibility.

Following the court's ruling, defense counsel stated that he would stipulate to
Appellant's ownership of the cell phone containing the photograph. In response,
the State offered to crop the photograph below Appellant's waist so as to reduce the
prejudicial impact. However, the trial court declined the State's offer, reasoning
that cropping the picture might suggest to the jury that "some worse activity is
occurring" in the missing part of the photograph. The trial court admitted the
photograph over defense counsel's objection. In addition, the trial court instructed
the jury that the photograph was to be considered for the limited purpose of
determining Appellant's credibility as a witness.

The jury subsequently found Appellant not guilty of committing a lewd act upon a
minor, but guilty of criminal solicitation of a minor. The trial court sentenced
Appellant to ten years' imprisonment suspended upon the service of five years,
followed by five years' probation. This appeal followed.

LAW/ANALYSIS

I. Admission of Naked Photograph

Appellant argues the trial court abused its discretion in admitting into evidence a
naked photograph of Appellant with his genitalia covered. Appellant contends the
photograph was unduly prejudicial and, thus, in violation of Rule 403, SCRE. He
further argues the trial court abused its discretion in not allowing the State to crop
the photograph or defense counsel to stipulate to Appellant's ownership of the cell
phone containing the photograph, despite his prior denials of ownership.

A. Probative Value

"Photographs calculated to arouse the sympathy or prejudice of the jury should be
excluded if they are irrelevant or not necessary to substantiate material facts or
conditions." State v. Torres, 390 S.C. 618, 623, 703 S.E.2d 226, 228 (2010). Rule
403, SCRE, provides that "[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice." "To
be classified as unfairly prejudicial, photographs must have a 'tendency to suggest
a decision on an improper basis, commonly, though not necessarily, an emotional
one.'" Torres, 390 S.C. at 623, 703 S.E.2d at 228-29 (quoting State v. Franklin,
318 S.C. 47, 55, 456 S.E.2d 357, 361 (1995)).

Throughout the trial, Appellant openly and adamantly, in the presence of the jury,
denied that the cell phone containing the photograph in question belonged to him.
In light of Appellant's testimony, the photograph was probative concerning
Appellant's credibility considering it showed Appellant holding a cell phone
seemingly identical to the cell phone in question, and considering that the cell
phone in question was in evidence for the jury's comparison. Although a SLED
agent testified to finding the photograph in question on the cell phone and
described the image to the jury, his testimony did not include a detailed description
of the phone which would have assisted the jury in determining whether the cell
phone admitted into evidence belonged to Appellant. Cf. State v. Lee, 399 S.C.
521, 529, 732 S.E.2d 225, 229 (Ct. App. 2012) (finding the admission of sexually
graphic photos had minimal probative value where the witness testified to finding
sexually graphic images on a digital camera and described them in detail).
Because the photograph demonstrating Appellant's use of the cell phone was
arguably the strongest evidence that Appellant was the owner of the cell phone, we
find the photograph in question had strong probative value. See State v. Collins,
398 S.C. 197, 202, 727 S.E.2d 751, 754 (Ct. App. 2012) (defining probative value
as "the weight that a piece of relevant evidence will carry in helping the trier of
fact decide the issues").

B. Danger of Unfair Prejudice

"The probative value of the photos must be balanced against 'the danger of unfair
prejudice.'" Collins, 398 S.C. at 207, 727 S.E.2d at 757. "Photographs pose a
danger of unfair prejudice when they have 'an undue tendency to suggest a decision
on an improper basis, commonly, though not necessarily, an emotional one.'" Id.
(quoting State v. Holder, 382 S.C. 278, 290, 676 S.E.2d 690, 697 (2009)). "Like
probative value, unfair prejudice should be evaluated in the practical context of the
issues at stake in the trial of the case." Id. at 208, 727 S.E.2d at 757; see State v.
Wilson, 345 S.C. 1, 7, 545 S.E.2d 827, 830 (2001) ("The determination of
prejudice must be based on the entire record and the result will generally turn on
the facts of each case.").

After reviewing the photograph, we find the photograph did not unduly prejudice
the jury. Although Appellant is naked in the photograph, his genitalia are covered
and he is not shown in a sexually suggestive position. Additionally, the primary
purpose of the photograph's admission was not to establish that Appellant had a
sexually deviant disposition or to inflame the emotions of the jury, but to rebut
Appellant's claim that he did not own the cell phone in question. Cf. Lee, 399 S.C.
at 529-30, 732 S.E.2d at 229-30 (finding sexually graphic nude photographs of the
appellant with other adults were unduly prejudicial where photographs showed the
appellant's genitalia "in full view" and the primary purpose of the photographs was
to "raise the emotions of the jury and to establish that [the appellant] had a
generally sexually deviant disposition"). In fact, the jury was aware that the
photograph was not sent to the victim and was not admissible for the purpose of
determining Appellant's guilt. Accordingly, we find the trial court did not abuse its
discretion in admitting the photograph into evidence.

C. Denial of Offers to Stipulate and Crop the Photograph

The State is entitled to prove its case with evidence of its own choosing and "is not
obligated to rely upon a defendant's stipulation." State v. Johnson, 338 S.C. 114,
122, 525 S.E.2d 519, 523 (2000) (citing 73 Am.Jur.2d Stipulations § 17 (1974)). In
this instance, the State did not accept defense counsel's offer to stipulate to
Appellant's ownership of the cell phone in question. Rather, the State offered to
crop the photograph below Appellant's waist. Because the State was not obligated
to accept defense counsel's stipulation, we find the trial court did not abuse its
discretion in declining defense counsel's offer to stipulate. We further find the trial
court acted well within its discretion in refusing to crop the photograph and,
thereby, admitting the photograph in full. See Torres, 390 S.C. at 622-23, 703
S.E.2d at 228 ("The relevance, materiality, and admissibility of photographs are
matters within the sound discretion of the trial court and a ruling will be disturbed
only upon a showing of an abuse of discretion.").

II. Admission of Military Discharge

Appellant argues the trial court erred in finding the acts which led to his other-
than-honorable discharge from the Marines were admissible to impeach him under
Rule 609(a)(2), SCRE, because his discharge did not constitute a conviction.
He also argues the trial court erred in failing to conduct a Rule 404(b) analysis. We
find Appellant's arguments are not preserved for appellate review.

"It is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial judge to be preserved for appellate
review." State v. Rogers, 361 S.C. 178, 183, 603 S.E.2d 910, 912 (Ct. App. 2004)
(citation and internal quotation marks omitted). "To preserve an issue for review
there must be a contemporaneous objection that is ruled upon by the trial court."
State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005). "The objection
should be addressed to the trial court in a sufficiently specific manner that brings
attention to the exact error." Id. "If a party fails to properly object, the party is
procedurally barred from raising the issue on appeal." Id. at 58-59, 609 S.E.2d at
523.

Although defense counsel requested a hearing to determine the offenses that could
be used to impeach Appellant, the only issue defense counsel raised during the
hearing was whether or not the offenses were crimes of dishonesty. Defense
counsel never raised any argument to the trial court regarding whether or not the
military offenses constituted "convictions" under Rule 609(a)(2) and never asked
the trial court to make any rulings pursuant to Rule 404(b). Defense counsel also
did not object when the State indicated that the offenses were "military
convictions." Additionally, defense counsel did not object when the trial judge
admitted the impeachment evidence under Rule 609(a)(2). Accordingly, we find
Appellant's arguments regarding Rule 404(b) and whether Appellant's prior acts
constituted convictions under Rule 609(a)(2) are not preserved for our review. See
Johnson, 363 S.C. at 58-59, 609 S.E.2d at 523 (finding that defendant failed to
preserve his claim that the trial court erred in applying the moral turpitude standard
in determining the admissibility of his prior convictions for impeachment purposes,
where defense counsel did not specifically object to the application of the moral
turpitude standard, but rather objected on the basis that the convictions were too
remote).

AFFIRMED.

HUFF, GEATHERS, and LOCKEMY, JJ., concur.