State v. Heath

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

William Howard Heath, Appellant.

Appellate Case No. 2018-000938

Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge

Opinion No. 5825
Heard December 8, 2020 – Filed June 16, 2021

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia; and Solicitor Samuel R. Hubbard, III,
of Lexington, for Respondent.

LOCKEMY, C.J.: William Howard Heath appeals his convictions for first-degree
criminal sexual conduct (CSC) with a minor, second-degree CSC with a minor,
and two counts of third-degree CSC, as well as his sentence of life imprisonment.
On appeal, Heath argues the trial court abused its discretion by (1) admitting three
unfairly prejudicial photographs, (2) admitting the victim's hearsay statements to
law enforcement after the assault, and (3) sentencing him to life imprisonment after
the legislature amended the sentencing statute within the indictment date range.
We affirm in part but vacate Heath's life sentence and remand for resentencing on
the conviction for first-degree CSC with a minor.

FACTS/PROCEDURAL HISTORY

A Lexington County grand jury indicted Heath for first-degree CSC with a minor
for offenses occurring from September 14, 2004, to September 15, 2007; second-
degree CSC with a minor with a date range of September 17, 2011, to September
15, 2013; and two counts of third-degree CSC with a date range of December 1,
2014, and April 26, 2015.

At trial, Heath's biological daughter (Victim) testified he sexually abused her
multiple times when she was six or seven and threatened to kill her or her mother if
she told anyone.1 She explained she would often resist, but if she did, he would hit
her, pull her hair, or force himself upon her. Victim testified about a long history
of sexual abuse. Specifically, she recalled one instance that occurred around his
birthday. She stated Heath often watched pornography on his iPad while he
assaulted her.

Victim explained the most recent incident occurred on April 26, 2015. Victim
stated that after she resisted his sexual advances, he forced her to clean the house.
He continued to make sexual advances and commanded her to his bedroom. She
recalled Heath took off her clothes and rubbed his genitals against her buttocks
while watching pornography on his iPad. She testified State's Exhibit 22 was a
screenshot from the video Heath watched while he assaulted her. Victim explained
she ran out of Heath's bedroom and sent a text message explaining what happened
to her aunt. Her aunt contacted Victim's mother, who called the police.

Sergeant Caleb Black testified he responded to Heath's home and spoke with
Victim. He explained Victim's eyes were red from crying and she was visibly
upset. The State asked Sergeant Black what Victim told him had occurred, and
Heath objected, arguing her statements were inadmissible hearsay. The State
argued Victim's statements were an excited utterance. Heath asserted the statement
was not made "in the heat of the moment" because too much time had passed. The
trial court sustained the objection. Sergeant Black explained that when he talked to

1
Based on Victim's age at trial, the range for those accusations spanned between
2004 and 2007.
Victim, she was on her bed, crying into her pillow. Deputies secured Heath's iPad
from his bedroom.

After Victim testified, Sergeant Black was recalled as a witness. He explained that
when he arrived on the scene, Victim was crying, her eyes were red, and she was
visibly upset. Heath objected to Sergeant Black's testimony, arguing Victim's
statements were hearsay. The trial court held Sergeant Black's testimony fell under
three hearsay exceptions: (1) excited utterance, (2) res gestae, and (3) present
sense impression. As to the excited utterance exception, the trial court held the
exception applied because evidence was presented Victim had red eyes, was
crying, and was upset when she spoke with Sergeant Black. Sergeant Black
testified Victim told him Heath had sexually abused her and about his history of
abusing her. He remained with her as she continued to cry until other officers
arrived.

A rape kit was performed on Victim, and a hair was collected from her pubic hair
combing and another from her rectal swab; both hairs matched Heath's DNA. The
inside of Victim's underwear tested positive for saliva, which also matched Heath's
DNA.

The State offered a compact disc that contained photographs of pornography from
Heath's iPad, including exhibits marked State's Exhibits 22, 36, and 38 into
evidence. Heath objected based on relevance and Rule 403 of the South Carolina
Rules of Evidence. Specifically, Heath argued because the jury would hear
testimony from Detective Michael Phipps that the pornography was present on the
iPad and in Heath's web history, showing the jury the pornographic images would
unfairly prejudice him. The trial court overruled the objection and admitted the
exhibits, finding that the images corroborated Victim's testimony Heath watched
pornography while he assaulted her. The trial court found the photographs on the
iPad were from April 26, 2015, and December 2, 2014, and these dates
corresponded with the days Victim stated Heath assaulted her. The trial court
weighed the probative nature of the evidence against the danger of unfair prejudice
and found it was highly probative and while it prejudiced Heath, it was not unfairly
prejudicial.

Detective Phipps, an expert in forensic examination of digital devices, testified he
extracted Exhibit 38—an image—from Heath's iPad and that someone viewed the
pornographic video on December 2, 2014. Exhibit 38 was a screenshot from a
pornographic video with the watermark "incesttv.com" on the bottom of the image.
Detective Phipps explained incesttv.com was a website that included adult
roleplaying and involved incest, including father-daughter role-play. Exhibits 22
and 36 were admitted subject to Heath's prior objections. Exhibit 22 was a
screenshot of a pornographic video, which contained the watermark
"DaughterDestruction.com." Exhibit 36 contained a screenshot from a
pornographic video and contained no watermark. Detective Phipps testified
Exhibits 22 and 36 were accessed on Heath's iPad on April 26, 2015. He explained
"daughterdestruction.com" was a website for "hardcore" pornography. Heath did
not object to any of Detective Phipps's testimony regarding the watermarks.

The jury found Heath guilty on all four indictments. During sentencing, the State
asserted that the legislature amended the first-degree CSC with a minor statute on
July 1, 2006, which changed the prior sentencing range of zero to thirty years'
imprisonment to twenty-five years' to life imprisonment. The State argued Heath
was convicted of an ongoing activity from before the statute was amended until
after its 2006 amendment and the trial court should therefore sentence him
according to the new sentencing range. Heath argued the sentence should be
determined based on the statute before the 2006 amendment because Victim's
testimony indicated the conduct giving rise to the first-degree CSC with a minor
charges occurred before July 1, 2006. The trial court sentenced Heath to life
imprisonment for first-degree CSC with a minor, twenty years' imprisonment for
second-degree CSC with a minor, and two sentences of ten years' imprisonment for
third-degree CSC, all to run consecutively.

ISSUES ON APPEAL

1. Did the trial court err by admitting photographs of pornography found on
Heath's iPad?

2. Did the trial court err by admitting hearsay evidence of Victim's interview with
law enforcement?

3. Did the trial court err by sentencing Heath to life imprisonment when the
legislature amended the sentencing statute during the time of the alleged conduct
found within the indictment date range?

STANDARD OF REVIEW

The admission of evidence is left to the trial court's sound discretion, and its
decision will not be reversed absent an abuse of discretion. State v. Byers, 392
S.C. 438, 444, 710 S.E.2d 55, 57-58 (2011). "An abuse of discretion occurs when
the trial court's ruling is based on an error of law." Id. at 444, 710 S.E.2d 58
(quoting State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000)). "To
warrant reversal based on the wrongful admission of evidence, the complaining
party must prove resulting prejudice." Id. "Prejudice occurs when there is a
reasonable probability the wrongly admitted evidence influenced the jury's
verdict." Id.

"A trial [court] is allowed broad discretion in sentencing within statutory limits."
Brooks v. State, 325 S.C. 269, 271, 481 S.E.2d 712, 713 (1997). "A sentence will
not be overturned absent an abuse of discretion when the ruling is based on an
error of law or a factual conclusion without evidentiary support." In re M.B.H.,
387 S.C. 323, 326, 692 S.E.2d 541, 542 (2010).

LAW/ANALYSIS

I. Rule 403, SCRE

Heath argues the trial court erred by admitting screenshots of pornography found
on his iPad. He asserts these images and their watermarks were unfairly
prejudicial, and therefore, inadmissible under Rule 403, SCRE. We disagree.

"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . ." Rule 403, SCRE.
"Unfair prejudice means an undue tendency to suggest decision on an improper
basis." State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d 172, 176 (2009). "[T]he
determination of prejudice must be based on the entire record, and the result will
generally turn on the facts of each case." State v. Stokes, 381 S.C. 390, 404, 673
S.E.2d 434, 441 (2009).

"Courts must often grapple with disturbing and unpleasant cases, but that does not
justify preventing essential evidence from being considered by the jury, which is
charged with the solemn duty of acting as the fact-finder." State v. Collins, 409
S.C. 524, 535, 763 S.E.2d 22, 28 (2014). "A trial [court] is not required to exclude
relevant evidence merely because it is unpleasant or offensive." State v. Martucci,
380 S.C. 232, 250, 669 S.E.2d 598, 607 (Ct. App. 2008). "[T]he standard is not
simply whether the evidence is prejudicial; rather, the standard under Rule 403,
SCRE is whether there is a danger of unfair prejudice that substantially outweighs
the probative value of the evidence." Collins, 409 S.C. at 536, 763 S.E.2d at 28.
As to the watermarks on the images, Heath failed to preserve this issue for
appellate review. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94
(2003) ("Issues not raised and ruled upon in the trial court will not be considered
on appeal."). Heath never objected to Detective Phipps's testimony regarding the
watermarks. Rather, Heath's objections at trial were to the displaying of
pornography to the jury, he did not mention the watermarks or their unfair
prejudice to the trial court. Thus, without raising the issue or drawing the trial
court's attention to the watermarks' prejudicial nature, Heath failed to preserve this
argument for appellate review.

We find the trial court did not abuse its discretion in admitting these photographs
because the court weighed the photographs' probative value against the danger of
unfair prejudice. Victim testified that on April 26, 2016, Heath watched
pornography on his iPad while he sexually assaulted her. Exhibit 22 and 36 were
accessed on Heath's iPad on that date, and Victim identified Exhibit 22 as the
pornography Heath watched during that assault. Detective Phipps testified Exhibit
38 was accessed on Heath's iPad on December 2, 2014, and Victim testified Heath
sexually assaulted her around his birthday, which was December 1. Since these
exhibits corroborate Victim's testimony about the circumstances surrounding how
Heath sexually assaulted her, evidence supports the trial court's finding that these
photographs were highly probative. See Collins, 409 S.C. at 534, 763 S.E.2d at 27
("If the offered photograph serves to corroborate testimony, it is not an abuse of
discretion to admit it." (quoting State v. Nance, 320 S.C. 501, 508, 466 S.E.2d 349,
353 (1996))); State v. Hawes, 423 S.C. 118, 130, 813 S.E.2d 513, 519 (Ct. App.
2018) (holding the trial court did not abuse its discretion in admitting crime scene
photographs that established the circumstances of the crime and corroborated the
testimony of a State's witness).

The corroboration of Victim's testimony of the events regarding her abuse was
extremely probative. While the photographs do not paint Heath in a positive light,
because they were part of the circumstances surrounding the crime, they were not
unfairly prejudicial. See Collins, 409 S.C. at 536, 763 S.E.2d at 28 ("[T]he
standard is not simply whether the evidence is prejudicial; rather, the standard
under Rule 403, SCRE is whether there is a danger of unfair prejudice that
substantially outweighs the probative value of the evidence."). We therefore
conclude the trial court did not abuse its discretion in admitting Exhibits 22, 36,
and 38.

II. Hearsay
Heath argues the trial court erred in admitting Victim's responses to law
enforcement after the alleged assault. He asserts no evidence was presented to
establish Victim was "excited" during the interview with Sergeant Black. We
disagree.

An excited utterance is an exception to the rule against hearsay evidence. Rule
803(2), SCRE. An excited utterance is "[a] statement relating to a startling event
or condition made while the declarant was under the stress of excitement caused by
the event or condition." Id. "The rationale for the [excited utterance] exception
lies in the special reliability accorded to a statement uttered in spontaneous
excitement which suspends the declarant's powers of reflection and fabrication."
State v. Burdette, 335 S.C. 34, 42, 515 S.E.2d 525, 529 (1999) (alteration in
original) (quoting State v. Blackburn, 271 S.C. 324, 327, 247 S.E.2d 334, 336
(1978)).

"A court must consider the totality of the circumstances when determining whether
a statement falls within the excited utterance exception." State v. Davis, 371 S.C.
170, 178, 638 S.E.2d 57, 62 (2006). Our supreme court "has generally allowed as
excited utterances statements made by the victim to the police immediately
following a physical attack." Burdette, 335 S.C. at 43, 515 S.E.2d at 530.

"The passage of time between the startling event and the statement is one factor to
consider, but it is not the dispositive factor." State v. Stahlnecker, 386 S.C. 609,
623, 690 S.E.2d 565, 573 (2010). Although there is no hard and fast rule as to the
time period when an excited utterance ends, our courts have admitted a victim's
statement to law enforcement as an excited utterance when the statement was made
shortly after an alleged sexual assault. See State v. Harrison, 298 S.C. 333, 337,
380 S.E.2d 818, 820 (1989) (allowing under the res gestae exception, the
statements of an alleged rape victim to an officer at the hospital upon the first
opportunity to tell what had occurred); State v. Quillien, 263 S.C. 87, 96-97, 207
S.E.2d 814, 819 (1974) (concluding a rape victim's statements to police after she
arrived at the emergency room were admissible under the res gestae exception).

A. Merits

Here, Sergeant Black testified that when he arrived at the home, Victim was
crying, her eyes were red, and she was visibly upset. Further, he stated she
continued to cry into her pillow after he interviewed her. Only thirty minutes had
passed since she was sexually assaulted by her father and Victim would have been
under significant stress and emotional strain after having finally reported years of
abuse by her father. The passage of time is but one factor to consider, and we do
not believe the lapse of thirty minutes between the assault and Victim's statements
to Sergeant Black precluded their admission under the excited utterance exception.
See Burdette, 335 S.C. at 43, 515 S.E.2d at 530 (admitting Victim's statement to a
law enforcement officer as an excited utterance when no more than one hour
passed between the attack and the victim's statement); cf. State v. Burroughs, 328
S.C. 489, 498, 492 S.E.2d 408, 412 (Ct. App. 1997) (explaining that the former res
gestae exception had the same temporal requirement as the excited utterance
exception). We find these facts support the trial court's conclusion that Victim's
statements to Sergeant Black fell under the excited utterance exception.

Further, Heath's argument the excited utterance exception does not apply because
the Victim was not "excited" is meritless. Our courts have ruled on multiple
occasions that the excited utterance exception applies to a victim who was visibly
upset and crying. See Stahlnecker, 386 S.C. at 623, 690 S.E.2d at 573 (holding a
victim who "was upset and crying when she told her mother about the [sexual]
abuse" was under the stress of excitement; thus, her statements were admissible as
excited utterances). Rule 803(2), SCRE, requires that the declarant be under "the
stress of excitement," not that the victim be excited. See State v. Sims, 348 S.C.
16, 22, 558 S.E.2d 518, 522 (2002) (holding declarant's statements were admissible
under the excited utterance exception when declarant was "not crying or acting
'excited' in the sense of being animated when he made the statement" but whose
demeanor was "characteristic of someone who [wa]s under the 'stress of
excitement'"). The record reflects Victim was under the "stress of excitement."
Based on the foregoing, we hold the trial court did not abuse its discretion by
admitting Victim's statements to Sergeant Black.

B. Harmless Error

Moreover, any alleged error in admitting Victim's statements or Exhibits 22, 36,
and 38 was harmless because the physical evidence against Heath was
overwhelming. See Collins, 409 S.C. at 537, 763 S.E.2d at 29 ("The harmless
error rule generally provides that an error is harmless beyond a reasonable doubt if
it did not contribute to the verdict obtained."). Victim testified Heath performed
oral sex on her on April 26, 2016, and saliva matching Heath's DNA was found on
the inside of Victim's underwear immediately following the assault. Further, hairs
from Victim's rectal swab and pubic hair combing matched Heath's DNA. See
Collins, 409 S.C. at 538, 763 S.E.2d at 29-30 ("Another description frequently
cited is that error 'is harmless where a defendant's guilt has been conclusively
proven by competent evidence such that no other rational conclusion can be
reached.'" (quoting State v. Bryant, 369 S.C. 511, 518, 633 S.E.2d 152, 156
(2006))). We find there was overwhelming physical evidence of Heath's guilt and
therefore any alleged error was harmless.

III. Sentencing

Heath argues the first-degree CSC with a minor statute was amended to increase
the maximum penalty from thirty years' imprisonment to life imprisonment in the
middle of the date range alleged in the indictment and the trial court therefore erred
in sentencing him to life imprisonment. We agree.

"In the absence of a controlling statute, the common law requires that a convicted
criminal receive the punishment in effect at the time he is sentenced, unless it is
greater than the punishment provided for when the offense was committed." State
v. Varner, 310 S.C. 264, 265, 423 S.E.2d 133, 133 (1992). The legislature
amended the first-degree CSC statute in 2006; prior to this amendment, the
maximum sentence for first-degree CSC was thirty years' imprisonment. See S.C.
Code Ann. § 16-3-655 (Supp. 2005), amended by S.C. Code Ann. § 16-3-655
(2015). The legislature amended the statute to provide that a person convicted of
first-degree CSC be imprisoned for "twenty-five years, no part of which may be
suspended or probation granted, or must be imprisoned for life." S.C. Code Ann.
§ 16-3-655 (Supp. 2006), amended by S.C. Code Ann. § 16-3-655 (2015).

The indictment alleged Heath committed first-degree CSC with a date range of
September 16, 2004, to September 15, 2007. Victim testified she was first sexually
assaulted when she was six or seven years old, and based on Victim's age at the
time of trial, such assaults would have occurred between 2004 and 2006. Although
the date range of the indictment fell under both the pre-amendment and
post-amendment statutes, the majority of Victim's testimony regarding when Heath
assaulted addressed conduct that occurred prior to the statutory amendment at
issue. Without a factual finding as to when the abuse occurred, the trial court
should have sentenced Heath within the pre-amendment maximum of thirty years'
imprisonment. Accordingly, we vacate Heath's life sentence.

CONCLUSION

Based on the foregoing, we affirm the trial court's admission of Exhibits 22, 36,
and 38 and the testimony regarding Victim's statements to law enforcement.
However, we vacate Heath's sentence for first-degree CSC with a minor and
remand for resentencing in accordance with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

KONDUROS and MCDONALD, JJ., concur.