State v. Johnson

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

Iver Norman Johnson, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Lexington County

Marc H. Westbrook, Judge

Opinion No. 24897

Heard November 5, 1998 - Filed February 8, 1999

AFFIRMED IN PART; REVERSED IN PART.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, and

Senior Assistant Attorney General Norman Mark

Rapoport, all of Columbia; and Solicitor Donald V.

Myers, of Lexington, for petitioner.

Senior Assistant Appellate Defender Wanda H.

Halle, of South Carolina Office of Appellate

Defense, of Columbia, for respondent.

BURNETT, A.J.: Respondent was convicted of three counts of

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first degree criminal sexual conduct (CSC) with a minor and five counts of

committing a lewd act on a child under the age of fourteen. He was

sentenced to imprisonment for thirty years on each CSC and fifteen years

on each lewd act, the sentences to run consecutively. The Court of

Appeals reversed respondent's convictions and sentences. State v.

Johnson, Op. No. 97-UP-653 (S.C. Ct. App. filed Dec. 11, 1997). This

Court granted the State's petition for certiorari to review the Court of

Appeals' opinion. We affirm in part and reverse in part.

FACTS

Respondent engaged in inappropriate sexual activity with his

six year old daughter, Betty, and her friends, April, Nina, Megan and

Maryann, ages 8, 9, 4, and 7 respectively. Respondent babysat the victims

while their parents worked. The State alleged respondent took advantage

of his position of control and the victims' vulnerability, and sexually

abused the girls to satisfy his own sexual desires.

According to the victims, respondent rubbed the genital areas

of their bodies, both on top of and underneath their clothing, touched their

buttocks, and inserted his finger into the vagina of at least one child.

Most of this touching occurred in the living room when the girls were

sitting on respondent's lap while watching television. However, according

to both Betty and April, respondent also touched them in Betty's bedroom.

These acts occurred from April 1994 to August 1994.

The girls saw respondent as he touched the others and

discussed the abuse among themselves. Eventually, they told Betty's

mother, Brenda Johnson, about respondent's conduct. Mrs. Johnson

informed the other parents of the accusations and reported the allegations

to the police.

Based on the victims' complaints, respondent was arrested and

the police searched his apartment. According to the arresting officer,

respondent claimed that "[he] could not have done this" because he was

impotent. The officer also stated respondent admitted that his hand could

have "slipped" one time when one of the girls was sitting on his lap

watching television. Respondent denied abusing the girls,

At the trial, respondent's stepdaughter and stepniece testified,

when they were approximately the age of the victims, respondent would

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touch their genital area when in the living room and eventually

respondent began to digitally penetrate their vaginas when in the

bedroom.

ISSUES

I. Did the Court of Appeals err in finding the trial judge

should have granted respondent a directed verdict on two of

the CSC charges?

II. Did the Court of Appeals err in finding the trial judge

should have allowed respondent to impeach a witness with a

prior shoplifting conviction under Rule 609(a)(2), SCRE?

III. Did the Court of Appeals err in finding the trial judge

should have granted a mistrial when a State's witness

mentioned an offer of a polygraph examination was made to

respondent?

IV. Did the Court of Appeals err in finding the admission of

the search warrant, affidavit, and return was reversible error?

V. Did the Court of Appeals err in finding the cumulative

effect of several errors warranted reversal of respondent's

convictions?

DISCUSSION

I.

The State contends the Court of Appeals erred in finding the

trial judge should have granted respondent a directed verdict on the two

CSC charges concerning Betty and Nina because there was no evidence of

a sexual battery.

In ruling on a directed verdict, the trial judge is concerned

with the existence of evidence, not its weight. State v. Williams, 303 S.C.

274, 400 S.E.2d 131 (1991). Viewing the evidence in the light most

favorable to the State, a jury question is created if there is any direct or

substantial circumstantial evidence which reasonably tends to prove the

guilt of the accused or from which guilt may be fairly and logically

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deduced. Id.

To support a conviction for CSC, there must be evidence of a

sexual battery. S.C. Code Ann. § 16-3-655(l) (1985). A sexual battery is

defined as an "intrusion, however slight, . . . into the genital or anal

openings of another person's body." S.C. Code Ann. § 16-3-651(h) (1985).

A conviction for a sexual battery may be sustained on the uncorroborated

testimony of the victim. S.C. Code Ann. § 16-3-657 (1985). In State v.

Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986), the six year old.victim

testified the defendant touched her with his penis, but could not remember

whether he had put it inside her body. However, she indicated it had

hurt. This Court found this was evidence of some intrusion and was

sufficient to render the issue one for the jury. Id.

Other jurisdictions interpreting similar statutes which require

penetration" find the slightest penetration is sufficient. Full penetration

is not necessary. 65 Am.Jur.2d Rape § 3 (1972); Charles E. Torcia, 3

Wharton's Criminal Law § 278 (1995). Further, it is not essential that

penetration be proven by testimony of the victim. Instead, it may be

established by circumstantial evidence. 65 Am.Jur.2d Rape § 88 (1972);

Charles E. Torcia, 3 Wharton's Criminal Law § 278 (1995).

In this case, Nina stated respondent fondled her while she sat

on his lap in a recliner chair in the living room. Nina testified respondent

touched her "lu-lu" which she described as the bottom part of her body

(where I don't think nobody likes to be touched." She stated respondent

touched her both over and under her clothes. When asked how this made

her feel, Nina responded: "It made me feel bad." A physical examination

of Nina did not reveal any evidence of a sexual battery.

Betty testified respondent would sleep in her bed with her and

that he woke her up and "touched [her] cooter" on the outside of her

underwear. She also testified he touched her "on [her] butt." She

indicated it hurt when this happened. Betty stated the abuse only

occurred in the bedroom and that respondent did not touch her in the

living room. A physical examination of Betty showed she had suffered an

injury inside her vagina which was consistent with sexual abuse. The

physician who performed the physical examination testified young children

are often unable to distinguish between "in" and "out."

April testified respondent rubbed her legs, buttocks and "lu-lu"

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over her clothes while she was sitting in the chair with respondent in the

living room watching television. Further, April testified once when she

spent the night with Betty, respondent got in bed with her and "he started

putting his fingers in [her]." April's physical examination did not show

any signs of sexual battery.

Respondent's stepdaughter and stepniece testified respondent

would rub them between their legs when they were in the living room.

Further, in the bedroom, respondent would digitally penetrate their

vaginas.

Although there was no direct evidence that respondent digitally

penetrated Betty, Betty's testimony that respondent touched her and it

hurt and the results of her physical examination were sufficient to create

a jury question as to whether there was any intrusion. See State v.

Mathis, supra (similar testimony was sufficient to create a jury question

on this issue).

However, in Nina's case the evidence was insufficient to create

a jury issue on penetration. Nina's testimony did not establish an

intrusion. Inappropriate touching can cause a child to "feel bad." Without

more, this statement is not sufficient evidence of an intrusion. There was

no circumstantial evidence presented to create a question for the jury on

the issue. Nina's physical examination revealed no signs of a sexual

battery. Further, because Nina claimed respondent fondled her in the

living room, April's testimony supported the finding that respondent only

touched Nina. According to April, respondent only touched her in the

living room and he only attempted penetration in the bedroom. Likewise,

respondent's stepdaughter's and stepniece's testimony supported this same

conclusion.

Therefore, the Court of Appeals was correct in directing a

verdict for respondent on the CSC conviction as to Nina, but it erred in

reversing respondent's CSC conviction as to Betty.1

1 Respondent claims the Court of Appeals erred in refusing to find

the trial judge should have directed a verdict on the lewd act committed

against Alegan. The Court of Appeals did 'not explicitly address this issue

in its opinion, and respondent did not raise this issue for rehearing.

Accordingly, this issue is not preserved for further review. Rule 226(d)(2),

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II.

The State contends the Court of Appeals erred in finding a

witness may. be impeached under Rule 609(a)(2), SCRE, with a prior

shoplifting conviction. The Court of Appeals concluded this error

prejudicially affected respondent's ability to question the truthfulness of

the witness' testimony. State v. Johnson, supra.

The trial judge refused to allow respondent to impeach Cynthia

Barfield, April's mother, with a shoplifting conviction. The judge found

federal precedent interpreting Rule 609(a)(2), FRE,2 which does not allow

impeachment by a prior shoplifting conviction, to be persuasive on this

issue.

Rule 609(a)(2), SCRE, provides:

For the purpose of attacking the credibility of a witness . . .

(2) evidence that any witness has been convicted of a crime

shall be admitted if it involved dishonesty or false statement,

regardless of punishment.

Under this rule, if the conviction involves dishonesty or false

statement, it is automatically admissible without having to balance its

probative value against its prejudicial effect. Rule 609(a)(2), SCRE, does

not define or list the crimes involving dishonesty or false statement.

SCACR; Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496

S.E.2d 17 (1998); Bonaparte V. Bonaparte, 317 S.C. 256, 452 S.E.2d 836

(1995) (where the Court of Appeals does not address a particular issue,

petitioner cannot argue the merits of the issue in a petition for a writ of

certiorari because the issue is not preserved for review; petitioner must

instead argue the Court of Appeals erred in failing to address the issue if,

of course, that was raised in a petition for rehearing). Further this issue

is without merit. Although Megan did not testify at trial, Maryann

testified she saw respondent touch Megan on her "bottom" while Megan

was sitting in his lap. This was sufficient evidence to create a jury

question on this issue.

2 Rule 609(a)(2.), SCRE, is almost identical to 609(a)(2), FRE.

p.21 STATE v. JOHNSON

We agree with the Court of Appeals' holding that a witness

may be impeached under Rule 609(a)(2), SCRE, with a prior shoplifting

conviction. In State v. Shaw, 328 S.C. 454, 492 S.C. 402 (Ct. App. 1997),

the Court of Appeals decided this exact issue. We find that opinion

persuasive and adopt its reasoning. As stated by the Court of Appeals:

Common sense tells us that anyone who, in violation of the

shoplifting statute, takes and carries away a storekeeper's

merchandise with intent to deprive the owner of its possession

without paying for it, or alters or removes a label or price tag

in an attempt to buy a product at less than its value, or

transfers merchandise from its proper container for the purpose

of depriving a storekeeper of its value acts dishonestly.

Id. at 454, 492 S.E.2d at 404.

Because the trial judge erred in preventing respondent from

impeaching Cynthia Barfield with her shoplifting conviction, this Court

must determine if this error prejudiced respondent.

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89

L.Ed.2d 674 (1986), the Supreme Court set forth certain factors an

appellate court should consider in determining whether the erroneous

exclusion of evidence of a witness' bias constitutes harmless error. These

include: the importance of the witness' testimony to the prosecution's

case, whether the testimony was cumulative, whether other evidence

corroborates or contradicts the witness' testimony, the extent of

cross-examination otherwise permitted, and the overall strength of the

State's case. While the harmless error ruling in Van Arsdall dealt

specifically with witness bias, this Court has held the Van Arsdall factors

apply with equal force in determining a harmless error violation relating

to any issue of witness credibility. See State v. Holmes, 320 S.C. 259, 464

S.E.2d 334 (1995), cert. denied, 517 U.S. 1248, 116 S. Ct. 2507, 135 L.Ed.2d

197 (1996); State v. Gadsden, 314 S.C. 229, 442 S.E.2d 594 (1994).

Cynthia Barfield is April's mother. Her testimony provided

some corroboration of the allegations made in this case. Ms. Barfield

testified that April began to masturbate and have nightmares following

the incident and that April suffered rashes during the time period the

p.22 STATE v. JOHNSON

sexual abuse was occurring.3 However, April' s testimony sufficiently

established respondent sexually abused her and Ms. Barfield's testimony

was unnecessary to bolster the victims' allegations of abuse. The State

did not even refer to Ms. Barfield's testimony during its closing argument.

Obviously, the testimony was not critical to the State's case. Further,

defense counsel was allowed to extensively cross-examine and discredit Ms.

Barfield about her lifestyle. Accordingly, we find this error harmless

beyond a reasonable doubt. State v. Holmes, supra.

III.

During direct examination, Detective Hite, the arresting officer,

was discussing his conversation with respondent after his arrest and

stated, "I then asked him would he be willing to submit to a polygraph

examination and he - - -". When respondent immediately objected, the

jury was removed from the courtroom, and respondent moved for a

mistrial on the ground that testimony concerning the offer of a polygraph

test is inadmissible. Defense counsel argued a curative instruction could

not cure the impact on the jury because the inference was respondent

either refused to submit to the polygraph test or took the test and failed

it. The trial judge denied the motion for a mistrial and issued extremely

thorough curative instructions to the jury. Respondent renewed his

request for a mistrial following the instructions.4

The Court of Appeals indicated it had "serious doubts whether

the mention of the polygraph test, in light of the curative instructions

given here, amounts to reversible error." However, the court stated the

error 'must be considered in determining the fairness of [respondent's]

trial." State v. Johnson, supra.

3 April's physical examination did not reveal any signs of

inflammation.

4 The State argues this issue is not preserved for review. We

disagree. Respondent adequately preserved this issue for review. State v.

George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. denied, _ U.S. _, 117

S.Ct. 1261, 137 L. Ed. 2d 340 (1997) (the issue is not preserved for review if

the objecting party accepts the judge's ruling and does not

contemporaneously make an additional objection to the sufficiency of the

curative charge or move for a mistrial).

p.23 STATE v. JOHNSON

The decision to grant or deny a mistrial is within the sound

discretion of the trial judge. State v. Crim, 327 S.C. 254, 489 S.E.2d 478

(1997). The power of the court to declare a mistrial should be used with

the greatest caution and for plain and obvious causes. Id. A mistrial

should not be ordered in every case where incompetent evidence is

received. Id. An instruction to disregard objectionable evidence is usually

deemed to cure the error in its admission unless on the facts of the

particular case it is probable that notwithstanding such instruction the

accused was prejudiced. Id.

Evidence regarding the results of a polygraph test or the

defendant's willingness or refusal to submit to one is inadmissible. See

State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979) (witnesses should

avoid mentioning polygraph examinations; however, if it is mentioned, the

trial judge should be meticulous to see that no improper inference is

created by the testimony); State v. Pressly , 290 S.C. 251, 349 S.E.2d 403

(1986) (because the trial judge allowed repeated references to appellant's

submission to a polygraph examination, the jury instruction to disregard

the polygraph results could not cure the prejudice to appellant); State v.

Wright, 322 S.C. 253, 471 S.E.2d 700 (1996) (the results of a polygraph

test are inadmissible). The admission of such testimony has been ruled

harmless error where the trial court properly admonished the jury to

disregard the testimony. 29 Am.Jur.2d Evidence § 546 (1994).

In our opinion, the mere inadvertent mention of an offer to

take a polygraph test does not result in error. Further, the extensive

curative instruction given by the trial judge cured any possible prejudice

caused by the brief mention of an offer of a polygraph examination.

Compare with State v. Pressly, supra (repeated references to a polygraph

examination could not be cured by an instruction for the jury to disregard

the testimony where it was shown that appellant confessed immediately

after taking the examination), State v. McGuire, supra (the trial judge

failed to ensure that no improper inference was created by the mention of

an offer to take a polygraph exam).

IV.

The State asserts the Court of Appeals erred in finding the

trial judge improperly admitted into evidence the search warrant and the

testimony regarding the items seized pursuant to the execution of the

search warrant. The Court of Appeals found this evidence was irrelevant

p.24 STATE v. JOHNSON

and prejudicial.

Before the arresting officer testified, the solicitor informed the

trial judge she was not going to introduce into evidence the videotapes or

the vibrator seized by the police during the execution of the search

warrant at respondent's apartment. Instead, she planned to introduce the

search warrant and return during the testimony of the officer who seized

the evidence. Defense counsel objected on the ground that the warrant

was not relevant. . Further, defense counsel stated "I will object to any

kind of testimony as to what [the officer] seized as irrelevant." During the

course of the arresting, officer's testimony, the solicitor sought to admit the

search warrant and return into evidence. Defense counsel objected and

argued the search warrant was inadmissible hearsay and irrelevant.

Accordingly to defense counsel, "the warrant itself and all that evidence is

inadmissible and highly prejudicial, just by the inferences." (emphasis

added). The trial judge admitted the warrant and allowed the officer to

identify the various items seized pursuant to the execution of the search

warrant, including several pornographic videotapes, condoms, handcuffs, a

vibrator, and numerous photographs. When the State sought to introduce

the photographs into evidence, defense counsel again objected on the

ground of relevancy. The trial judge overruled the objection. The trial

judge again overruled defense counsel's objection when the officer testified

that some of the videotapes seized contained pornography.

Generally, a search warrant and an accompanying affidavit are

not admissible in a criminal case. State v. Alexander, 303 S.C. 408, 401

S.E.2d 167 (1991); State v. Arther, 290 S.C. 291, 350 S.E.2d 187 (1986);

State v. Latham, 275 S.C. 105150, 273 S.E.2d 772 (1981); State v. Smith, 230

S.C. 164, 94 S.E.2d 886 (1956). However, error in their admission is

reversible only upon a showing, of prejudice. State v. Alexander, supra.

The prejudicial character of the error must be determined from its

relationship to the entire case. Id.

The allegations in the affidavit concerning the existence of

pornographic material and sexual aids and testimony regarding the items

seized were irrelevant to the charges against respondent. The allegations

were not corroborated by other competent testimony nor were the

allegations cumulative to properly admitted evidence. None of the victims

claimed respondent photographed them, viewed pornographic material with

them or used these sexual aids with them. Accordingly, the error in

admitting the search warrant and testimony about the items seized was

p.25 STATE v. JOHNSON

prejudicial to respondent.5

The State further argues any error in the admission of this

evidence was harmless beyond a reasonable doubt. Because we do not

find evidence of respondent's guilt overwhelming, the admission of the

evidence is not harmless. State v. Singleton, 303 S.C. 313, 400 S.E.2d 487

(1991) (refusing to find error harmless where the evidence of guilt was not

overwhelming). Except for Betty,6 the State relied on the minor victims'

testimony to convict respondent.7 Respondent denied any wrongdoing and

offered his version of the incidents during his testimony. Thus, it was

basically a swearing contest between the minor victims and respondent.

The admission of this totally irrelevant testimony served only to unfairly

prejudice respondent.

5 The State argues respondent failed to adequately object to the

officer's testimony regarding the items seized during the execution of the

search warrant. Therefore, any error in the admission of the search

warrant was not prejudicial because it was merely cumulative to evidence

introduced without objection and which was subject to cross examination.

State v. Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990) (admission of

evidence is harmless where it is cumulative to other evidence admitted

without objection); State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988)

(when information contained in the improperly admitted affidavit is merely

cumulative to other properly admitted evidence, there is no prejudice). In

our opinion, respondent's objection was sufficient to include both the

admission of the search warrant and the officer's testimony regarding the

items seized on the ground of irrelevancy. Therefore, neither the warrant

nor the testimony about the items seized was relevant evidence and should

not have been admitted.

6 The physician who examined Betty admitted her injury could have

been the result of an inflammation.

7 The stepdaughter's and stepniece's testimony did not have a great

impact on the jury because these incidents occurred many years earlier

and the incidents were investigated and dismissed at the time they

allegedly occurred.

p.26 STATE v. JOHNSON

V.

Although the Court of Appeals did not find the exclusion of the

prior shoplifting conviction, the mention of the polygraph test and,

questionably, the admission of the search warrant were reversible errors in

themselves, it held the cumulative effect of these errors warranted reversal

because the errors deprived respondent of a fair trial. State v. Johnson,

supra.

In our opinion, the facts of this case do not support a finding

cumulative errors warranted reversal. While the admission of the search

warrant was prejudicial error, the error of refusing to admit the prior

shoplifting conviction for impeachment purposes was not prejudicial and

the inadvertent mention of the polygraph examination was not error.

Respondent must demonstrate more than error in order to qualify for

reversal on this ground. Instead, the errors must adversely affect his

right to a fair trial. See Tennant v. Marion Health Care Foundation, 459

S E.2d 374 (W.Va. 19905) (cumulative error doctrine provides relief to a

party when a combination of errors that are insignificant by themselves

have the effect of preventing a party from receiving a fair trial and it

requires the cumulative effect of the errors to affect the outcome of the

trial). Here, respondent has failed to show he suffered prejudice

warranting a new trial based on cumulative trial error. Compare with

State v. Peterson, 287 S.C. 244, 335 S.E.2d 800 (1985) (although Court

held cumulation of errors warranted reversal, each error caused prejudice

against appellant); State v. Freeman, 319 S.C. 110, 459 S.E.2d 867 (Ct.

App. 1995) (finding the cumulative effect of the trial judge's conduct, not

trial errors, warranted reversal). "As we have stressed on more than one

occasion, the Constitution entitles a criminal defendant to a fair trial, not

a perfect one." State v. Mitchell, 330 S.C. 189, 199-200, 498 S.E.2d 642,

647-48 (S.C. 1998) (quoting Delaware v. Van Arsdall, 475 U.S. at 681, 106

S.Ct. at 1436, 89 L.Ed.2d at 684).

However, as discussed in Part IV the error in admitting the

search warrant and testimony regarding the items seized was prejudicial

and warrants reversal of respondent's conviction.

AFFIRMED IN PART; REVERSED IN PART.

FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.

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