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Daughter Two recalled Perry moved into a two-bedroom apartment in 2007, where she shared a room and a bed with Daughter Three, Perry shared a room with Son, and Daughter One slept on the couch. 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.” Rule 404(b), SCRE.

Daughter Two testified she never tried to wake up her sisters because she was scared they would tell Mother. Clear and Convincing Evidence Perry contends there are “clear issues with whether the prior bad act occurred.” He points to the fact that there was no trial and the solicitor's office did not have any records for the charges related to Newcomer's allegations.“If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing.” State v. After the abuse ended, Daughter Three continued visiting Perry on the weekends until she disclosed the abuse when she was around sixteen years old. Finally, Perry points to the fact that Newcomer and the State “indicated the sexual abuse progressed to intercourse” and the court redacted that portion of her testimony, but Daughter Two and Daughter Three did not make similar allegations. E.2d at 278 (“[T]he trial court may properly redact dissimilar particulars of sexual conduct to avoid unfair prejudice to the defendant.”). E.2d at 278 (“When the similarities outweigh the dissimilarities, the bad act evidence is admissible under Rule 404(b).”). Daughter Three explained that she waited to tell Mother what was going on because Perry had told her “that if we told anybody, we would be the ones who got in trouble and [would] get taken away from my mom.” Daughter Three stated she initially disclosed the abuse to her youth group leader, who encouraged her to tell Mother. However, Newcomer never testified that intercourse occurred. Then he got up and left.” Before the jury, Newcomer testified regarding the digital penetration and included the fact that the abuse had progressed to oral sex once. E.2d 649, 653 (2006) (“It is well established that counsel's statements regarding the facts of a case and counsel's arguments are not admissible evidence.”). In light of the foregoing, the similarities of the prior bad act and the charged crimes outweigh the dissimilarities. Accordingly, the trial court did not abuse its discretion in finding Newcomer's testimony was admissible under Rule 404(b), SCRE. In March 2012, Daughter Three revealed to Mother that Perry had sexually abused her during visitation. After Daughter Three's disclosure, Daughter Two informed Mother that she had also been sexually abused by Perry. Perry first argues the trial court, when performing its Rule 403 analysis, failed to consider the fact that Newcomer testified the abuse progressed to intercourse, which was different from Daughter Two's and Daughter Three's testimony. E.2d at 653 (“It is well established that counsel's statements regarding the facts of a case and counsel's arguments are not admissible evidence.”). As a result, Perry completed a pretrial intervention program and did not admit any guilt. “When the similarities outweigh the dissimilarities, the bad act evidence is admissible under Rule 404(b).” Id. Perry also asserts (1) the abuse allegedly occurred at different locations and times and (2) the content of the threats he allegedly made was different.

After hearing the proffer and the parties' arguments, the trial court decided to reserve its ruling on whether Newcomer would be permitted to testify. All of the abuse took place at Perry's then-current home and primarily occurred in the victims' bedrooms.

During the trial, Daughter Three testified that after Mother and Perry separated, Perry moved into a three-bedroom apartment and she shared a room and an air mattress with Daughter One and Daughter Two. Focusing on the contents of the witness's testimony, our supreme court found the testimony amounted to “evidence of a prior drug transaction” and determined the issue of the witness's credibility was for the jury's consideration. Here, the trial court found there was clear and convincing evidence that the prior bad act had occurred. “When determining whether evidence is admissible as [part of a] common scheme or plan, the trial court must analyze the similarities and dissimilarities between the crime charged and the bad act evidence to determine whether there is a close degree of similarity.” Wallace, 384 S. The abuse also occurred at night or early in the morning when the victims were in bed. Rule 403 states, in pertinent part, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ․” “[E]ven though we have already considered, pursuant to Rule 404(b), whether the similarities outweighed the dissimilarities, we must now reconsider the similarities and dissimilarities, as well as temporal remoteness and other factors, pursuant to Rule 403 ․” Scott, 405 S.

According to Daughter Three, around five or six o'clock in the morning, Perry would come into the bedroom Daughter Three shared with her sisters and would get in bed with them. During the proffer, Newcomer provided a detailed description of the abuse, including where and when the abuse occurred and specific details of the sexual battery. In terms of threats, we note that Newcomer testified Perry told her that no one would believe her and that her accusations would hurt the family, while the threats to Daughter Two and Daughter Three focused on the fact that they would get into trouble and would be taken away from Mother.

When asked to describe the abuse, Daughter Three recalled Perry digitally penetrating her vagina about five times but stated the abuse did not progress beyond that. E.2d at 277 n.2 (“Bad act evidence that is not subject to a conviction must be shown by clear and convincing evidence and is reviewed under an 'any evidence' standard on appeal.”). As in Wilson, Newcomer's testimony was sufficient to provide evidence of the prior bad act and her credibility was an issue for the jury's consideration. Thus, there is evidence to support the trial court's These threats all share a common thread—potential harm to the family unit.

According to Daughter Three, the abuse occurred when she was around ten or eleven years old. “If there is any evidence to support the admission of the bad act evidence, the trial [court's] ruling will not be disturbed on appeal.” Id.; see also Wallace, 384 S. In Wilson, our supreme court applied the any evidence standard of review and found a witness's testimony that she saw the defendant give a woman a plastic bag containing a white rock substance in exchange for twenty dollars was admissible evidence of a prior bad act. Close Degree of Similarity Perry argues the trial court erred in finding Newcomer's testimony was admissible under Rule 404(b), SCRE, because there was not a close degree of similarity between the alleged abuse of Newcomer and the alleged abuse of Daughter Two and Daughter Three. If the trial court concludes there is clear and convincing evidence that the defendant committed the prior bad act, the court must determine whether the prior bad act falls within the common scheme or plan exception. Furthermore, although the threats were not identical, the wording is less important than the fact that all of the threats were made in an attempt to prevent the victims from disclosing the abuse. E.2d at 244 (stating “[t]he admission or exclusion of evidence is left to the sound discretion of the trial [court],” and the court's “decision will not be reversed on appeal absent an abuse of discretion”). Rule 403, SCREPerry next contends that if this court finds Newcomer's testimony admissible under Rule 404(b), it should still be excluded because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice. Once the prior bad act is found admissible under Rule 404(b), the trial court must then conduct the prejudice analysis required by Rule 403, SCRE.

Wallace Steve Perry appeals his convictions for two counts of first-degree criminal sexual conduct (CSC) and two counts of second-degree CSC. See Rule 403, SCRE (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ․”). Henderson did not improperly comment on the veracity of Daughter Three's testimony.