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Mother later contacted the Department of Social Services (DSS) to report the abuse, and DSS reported the incident to the Greenville Police Department. As noted above, the only information in the record about Perry and Newcomer engaging in sexual intercourse came from the solicitor during a discussion with the trial court before the proffer; Newcomer never explicitly testified intercourse occurred. Perry also contends the prior bad act testimony was inadmissible under Rule 403 because there was an issue regarding whether the prior bad act actually occurred.
Perry was subsequently indicted for two counts of first-degree CSC and two counts of second-degree CSC. Before the trial began, the State proffered the testimony of Brandy Newcomer, Perry's stepdaughter from a prior marriage, regarding abuse Perry allegedly inflicted on her. Therefore, the trial court was not permitted to consider this information. We are cognizant of the fact that Perry was never convicted of the prior bad act; however, as stated above, the trial court correctly found there was clear and convincing evidence that the prior bad act occurred. Nonetheless, the trial court does not necessarily err when it permits testimony about a bad act occurring many years prior to the charged crime.
According to Daughter Two, Perry orally penetrated her vagina late one night while she was sitting in a chair and early one morning while she was in bed with Daughter Three. For evidence of a prior bad act to be admissible to show the existence of a common scheme or plan, the trial court must find the evidence (1) is clear and convincing and (2) bears a close degree of similarity to the crimes charged.
During a discussion with the trial court before the proffer, the solicitor noted that unlike with Daughter Two and Daughter Three, Perry's abuse of Newcomer “progress[ed] on into actual vaginal/penile penetration.” However, the solicitor acknowledged that portion of Newcomer's account of the abuse would “not be admissible because it [went] beyond the scope of similar” and could be excluded by the court pursuant to State v. testified her mother married Perry when Newcomer was five years old. When remoteness is an issue in a case, it “is pertinent to determining total probative value.” Scott, 405 S.
She stated that when she was nine years old, Perry entered her room one night and digitally penetrated her vagina. Then he got up and left.” Newcomer testified that around that time, Perry also came into the bathroom while she was taking a bath and “had to bathe [her] before [she] could go.” She stated the abuse ended when she was fourteen. Our supreme court also approved of trial courts redacting “dissimilar particulars of sexual conduct to avoid unfair prejudice to the defendant.” Id.
According to Newcomer, Perry continued to abuse her periodically over the next four years, and she estimated he digitally penetrated her about twenty times. Newcomer stated she did not disclose the abuse right away because Perry had told her no one would believe her and her accusations would hurt the family. The trial court determined that to avoid unfair prejudice to the defendant, any testimony regarding sexual intercourse would not be allowed when the sister testified before the jury. Our supreme court agreed with the trial court's decision to redact a portion of the sister's testimony and found it did not make the two acts seem more similar than they actually were. Rather, our supreme court noted the trial court had “redacted only the last step in a progressive course of abuse” and “[t]he fact that [the victim's] abuse was interrupted before it could culminate in intercourse [did] not diminish the similarity between the progression the abuse took in each case.” Id. In the instant case, there was a close degree of similarity between the testimony of Newcomer and that of Daughter Two and Daughter Three.
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.