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,
James Robert Nash, Appellant.
Appeal From Pickens County
Judge G. Edward Welmaker, Circuit Court Judge
Unpublished Opinion No. 2012-UP-075
Heard December 6, 2011 – Filed February 8, 2012
Appellate Defender LaNelle Cantey Durant, of Columbia, for Appellant.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia, for Respondent.
PER CURIAM: James Robert Nash appeals his convictions of criminal sexual conduct (CSC) with a minor, first degree, and lewd act on a minor under sixteen years of age. Nash argues the trial court erred in: (1) denying his request for a continuance in order to reevaluate his competency; (2) qualifying an expert witness; (3) allowing the solicitor to testify in his closing argument regarding evidence not admitted during trial; and (4) admitting evidence of two other bad acts. We affirm pursuant to Rule 220(b), SCACR, and the following authorities:
1. As to the continuance: A trial court's decision on a motion for continuance or a request to order a competency evaluation is within the trial court's discretion, and the decision will not be overturned on appeal absent a clear showing of an abuse of that discretion. State v. Locklair, 341 S.C. 352, 364, 535 S.E.2d 420, 426 (2000) (competency); State v. Babb, 299 S.C. 451, 454, 385 S.E.2d 827, 829 (1989) (continuance). The test for determining competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceedings against him. State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683, 685 (2002); see State v. Colden, 372 S.C. 428, 441-42, 641 S.E.2d 912, 920 (Ct. App. 2007) (finding no abuse of discretion by the trial court in not ordering a competency examination where defendant's voir dire with the court conclusively revealed defendant's ability to answer questions rationally and appropriately, and defendant demonstrated a manifest understanding of the proceedings, the roles of the participants, and the charges he was facing). We find no abuse of discretion in the trial court's denial of a continuance in order to reevaluate Nash's competency.
2. As to the qualification of the expert: The qualification of a witness as an expert is a matter largely within the trial court's discretion. State v. Myers, 301 S.C. 251, 255, 391 S.E.2d 551, 554 (1990). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE. "Generally, defects in the amount and quality of an expert's education or experience go to the weight to be accorded the expert's testimony and not to its admissibility." State v. Morris, 376 S.C. 189, 203, 656 S.E.2d 359, 367 (2008). We find no abuse of discretion in the trial court's qualification of the expert.
3. As to the solicitor's closing argument: The trial court has broad discretion in ruling on the propriety of closing arguments, and ordinarily the ruling will not be disturbed on appeal. State v. Patterson, 324 S.C. 5, 17, 482 S.E.2d 760, 766 (1997). The appellate court will review the argument in the context of the entire record. Id. "The relevant question is whether the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). We affirm the trial court's ruling on the propriety of the solicitor's closing argument.
4. As to the admission of other bad acts: "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. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE. "If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing." State v. Gaines, 380 S.C. 23, 29, 667 S.E.2d 728, 731 (2008). When considering whether there is clear and convincing evidence of other bad acts, the appellate court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). "Even if prior bad act evidence is clear and convincing and falls within [the common scheme or plan] exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant." Gaines, 380 S.C. at 29, 667 S.E.2d at 731.
"To be admissible [under the common scheme or plan exception], the bad act must logically relate to the crime with which the defendant has been charged." Id. The factors to consider in determining whether there is a close degree of similarity between the other bad act and the crime charged in a sexual abuse case are: "(1) the age of the victims when the abuse occurred; (2) the relationship between the victims and the perpetrator; (3) the location where the abuse occurred; (4) the use of coercion or threats; and (5) the manner of the occurrence, for example, the type of sexual battery." State v. Wallace, 384 S.C. 428, 433, 683 S.E.2d 275, 278 (2009). The common scheme or plan exception is generally applied in cases of criminal sexual conduct where alleged incidents of abuse both before and after the charged act are admissible to show continuing or escalating illicit intercourse between the same parties. State v. Mathis, 359 S.C. 450, 463-64, 597 S.E.2d 872, 879 (Ct. App. 2004) (admitting evidence of three earlier assaults on the victim where they were attempted in the same manner and under similar circumstances); id. at 464, 597 S.E.2d at 879 (quoting State v. Tutton, 354 S.C. 319, 328, 580 S.E.2d 186, 191 (Ct. App. 2003)) ("Sex crimes may be unique in this respect because they commonly involve the same victims engaged in repeated incidents occurring under very similar circumstances. The reason for the general admissibility of such evidence under these circumstances is self-evident – where there is a pattern of continuous conduct shown, that pattern clearly supports the inference of the existence of a common scheme or plan, thus bolstering the probability that the charged act occurred in a similar fashion."). We affirm the trial court's ruling that the evidence was admissible under the common scheme or plan exception, was demonstrated by clear and convincing evidence, and that the probative value of the evidence outweighed its prejudicial effect.
SHORT, WILLIAMS, and GEATHERS, JJ., concur.