State v. Perez

THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Respondent/Petitioner,

v.

Venancio Diaz Perez, Petitioner/Respondent.

Appellate Case No. 2015-001576

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County
J. C. Nicholson, Jr., Circuit Court Judge

Opinion No. 27810
Heard November 30, 2016 – Filed June 6, 2018

REVERSED

Jason S. Luck, of Seibels Law Firm, P.A., of Charleston,
and Chief Appellate Defender Robert M. Dudek, of
Columbia, for Petitioner/Respondent.

Attorney General Alan M. Wilson and Special Assistant
Attorney General Amie L. Clifford, both of Columbia, and
Solicitor Scarlett A. Wilson, of Charleston, for
Respondent/Petitioner.
 CHIEF JUSTICE BEATTY: We granted cross-petitions for a writ of
certiorari to review the Court of Appeals' unpublished decision in State v. Perez, Op.
No. 2015-UP-217 (S.C. Ct. App. filed May 8, 2015), wherein the court determined:
(1) the trial court's refusal to admit testimony of a witness' U-visa1 application was
harmless error; (2) the trial court properly admitted evidence of prior bad acts
Venancio Diaz Perez committed against another minor; and (3) Perez's sentence was
vindictive and a violation of due process. We reverse the Court of Appeals' decision
and remand for a new trial.

I. Factual and Procedural History

Perez was indicted on charges of criminal sexual conduct with a minor and
lewd act on a minor for acts committed on a child ("Minor 1") whom his wife
babysat in their residence. Prior to trial, the judge held an in camera hearing to
determine whether to allow another child ("Minor 2"), who Perez's wife also
babysat, to testify at trial regarding acts of sexual abuse Perez allegedly committed
against Minor 2. After hearing testimony from both children, the trial court
decided to allow Minor 2 to testify pursuant to State v. Wallace, 384 S.C. 428, 683
S.E.2d 275 (2009).2

At trial, Minor 1 testified to six incidents involving Perez. Minor 1 described
two similar incidents wherein she went into one of the bedrooms to retrieve her
PlayStation Portable at which time Perez grabbed her, pulled her into the closet, and
began touching her. In the first incident, Minor 1 alleged Perez "put his hands under
[her] clothes and stuck his finger inside of [her]." In the second, Minor 1 stated

1
A U-visa allows victims of certain crimes, who have suffered mental or physical
abuse and are helpful to the government in the investigation or prosecution of the
criminal activity, to be lawfully present in the United States. 8 C.F.R. § 214.14
(2017); Department of Homeland Security, Victims of Criminal Activity: U
Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human-
trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-
criminal-activity-u-nonimmigrant-status (last updated August 25, 2017).
2
In Wallace, this Court held relevant evidence of a defendant's prior bad act that is
more probative than prejudicial may be admitted to show a common scheme or plan
under Rule 404 of the South Carolina Rules of Evidence ("SCRE") when the
similarities between the crime charged and prior bad act outweigh the dissimilarities.
Wallace, 384 S.C. at 433, 683 S.E.2d at 278.
Perez touched her "front" and "bottom," but, unlike the first incident, there was no
digital penetration. Minor 1 also described another incident in which Perez touched
her "front" and "bottom" after she hid in a closet during a game of hide-and-seek.
Like the second encounter, there was no penetration. In the fourth encounter, Minor
1 testified that while Perez's children were standing in front of the television "acting
famous," Perez situated himself in an area of the room so that no one else could see,
pulled his pants down, and showed Minor 1 his privates. In another, Minor 1 claimed
Perez touched her chest and "front" and bit her on her breasts after she helped him
hang wallpaper in the bathroom. In the last incident, Perez began chasing Minor 1
while she was watching a movie so she hid under a bed so that he could not reach
her.

On cross-examination, Minor 1 admitted she told her therapist Perez never
pulled her into the closet or digitally penetrated her during the first encounter
because Perez's children walked in before anything could happen. Minor 1 also
stated she did not mention the incident of Perez chasing her under the bed in her
movie narrative with her therapist in which she proclaimed to have disclosed
everything that occurred between her and Perez. Nor did she include the incident of
Perez biting her chest, but testified she nevertheless disclosed that encounter with
her therapist. Additionally, at trial, the State asked Minor 1 whether she was wearing
a bra at the time of the wallpaper incident. Minor 1 answered "No," explaining she
was too young to wear a bra at that time. On cross-examination, however, Minor 1
stated she told her therapist that she was wearing a bra during one of the encounters
with Perez.

Minor 2 subsequently testified to two incidents of sexual abuse involving
Perez. In one incident, Minor 2 testified she was in one of the bedrooms lying down
when Perez got on top of her and touched her on her "top and bottom privates." In
the other, Minor 2 stated she fell asleep on the couch in the living room watching a
movie and Perez came up behind her and touched her on her "front private."3

In addition to Minor 1 and Minor 2, the State called the mother of Minor 1
("Mother 1") and the mother of Minor 2 ("Mother 2") to testify. On cross-
examination, Mother 1 stated she came to the United States from Mexico illegally

3
Although it was not discussed at trial, during the pretrial hearing, Minor 2 also
alleged Perez touched her while she was helping him fix a doorknob. Additionally,
Minor 2 asserted Perez had sexual intercourse with her inside a closet; however, the
trial court did not allow Minor 2 to testify regarding the intercourse at trial.
in 2000. After Minor 1 reported the abuse, the victim advocate informed Mother 1
about U-visas and directed Mother 1 to an attorney who could assist her in filing an
application. As a result of submitting her U-visa application, Mother 1 testified she
became eligible for food stamps, which she now receives. Moreover, without the U-
visa application, Mother 1 explained she would be considered an illegal immigrant
and would be at risk of being deported.

Defense counsel attempted to elicit similar testimony from Mother 2, who was
also in the country illegally, but the trial court refused to admit testimony concerning
Mother 2's U-visa application, stating:

I let you go into the visa and the legal status [of Mother 1] because she
was the mother of the victim. I'm not going there with this witness.
That has nothing to do with this case. I don't think it has anything to do
with bias or anything and we're not going there, okay?

Nevertheless, the trial court permitted defense counsel to proffer the following
testimony outside the presence of the jury: Mother 2 learned about U-visas from an
information sheet she received at the Lowcountry Children's Center when her
daughter was being examined; Mother 2 had applied for a U-visa with the assistance
of an attorney; and, unlike Mother 1, Mother 2 had not applied for any government
benefits.

At the conclusion of the trial, the jury returned a verdict of not guilty of
criminal sexual conduct with a minor, but ultimately found Perez guilty of lewd act
on a minor and of assault and battery of a high and aggravated nature ("ABHAN").
The trial court sentenced Perez to fifteen years for the lewd act on a minor conviction
and to a consecutive ten years for the ABHAN conviction with credit for time served.
Perez subsequently objected, arguing the sentence was vindictive and punishment
for exercising his right to trial. The trial court denied Perez's motion to find the
sentence vindictive and Perez appealed his convictions and sentence.

In an unpublished opinion, the Court of Appeals determined the trial court
erred in refusing to allow evidence of Mother 2's U-visa application into evidence,
but determined the error was harmless beyond a reasonable doubt. State v. Perez,
Op. No. 2015-UP-217 (S.C. Ct. App. filed May 8, 2015), *3-4. The court affirmed
the trial court's decision to admit Minor 2's testimony pursuant to Wallace. Id. at *2.
Finally, the court reversed and remanded for resentencing after determining Perez's
sentence was vindictive and a violation of due process. Id. at *4-5. Then-Chief
Judge Few filed a concurring opinion wherein he concurred with the majority as to
the first two issues, but wrote separately to note that he would remand the case to
the trial court to clarify the basis on which it sentenced Perez. Id. at *6.

Both parties petitioned this Court for a writ of certiorari. Perez argued the
Court of Appeals erred in: (1) finding the trial court's refusal to admit evidence of
Mother 2's U-visa harmless error; (2) affirming the trial court's admission of Minor
2's testimony; and (3) failing to remand the case to a different judge for sentencing.
The State contended the Court of Appeals erred in finding Perez's sentence was
vindictive. We granted both petitions.

II. Standard of Review

In criminal cases, this Court sits solely to review errors of law. State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "This Court will not disturb
a trial court's ruling concerning the scope of cross-examination of a witness to test
his or her credibility, or to show possible bias or self-interest in testifying, absent a
manifest abuse of discretion." State v. Gracely, 399 S.C. 363, 371, 731 S.E.2d 880,
884 (2012). An abuse of discretion occurs when the trial court's ruling is based on
an error of law or is based on findings of fact that are without evidentiary support.
State v. Jennings, 394 S.C. 473, 477-78, 716 S.E.2d 91, 93 (2011).

III. Discussion

Whether the Court of Appeals erred in finding the trial court's refusal to
admit evidence of Mother 2's U-visa was harmless error.

The Court of Appeals held the trial court's refusal to allow Perez to cross-
examine Mother 2 regarding her U-visa application constituted a violation of Perez's
rights under the Confrontation Clause of the Sixth Amendment to the United States
Constitution. Perez, at *3; see U.S. Const. amend. VI (stating "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him"); Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (providing a
defendant demonstrates a Confrontation Clause violation when he is prohibited from
"engaging in otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness . . . 'from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness'" (quoting
Davis v. Alaska, 415 U.S. 308, 318 (1974))).
 According to the Court of Appeals:

[T]here is no question Mother 2's veracity and potential bias was an
important issue. Any evidence showing Mother 2 applied for or
obtained the visa because her daughter was a victim of abuse and they
both assisted with the prosecution was relevant impeachment evidence.
Mother 2's immigration status and possible visa application was
relevant to any theory that the victims falsely alleged these crimes in an
attempt to gain citizenship for their parents. Further, even accepting
Minor 2's testimony as true, Mother 2's U visa testimony was relevant
to establish bias by demonstrating Mother 2 agreed to participate in the
investigation or encouraged Minor 2 to participate in order to obtain the
visa.

Perez, at *3-4. The court, however, concluded the error was harmless beyond a
reasonable doubt. Id. at *4; see Gracely, 399 S.C. at 375, 731 S.E.2d at 886 ("A
violation of the Confrontation Clause is not per se reversible but is subject to a
harmless error analysis."). In its petition for rehearing, the State did not challenge
the court's finding that the trial court's failure to admit the evidence was error;
therefore, the only question before us on this issue is whether the error was harmless.
See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489
S.E.2d 470, 472 (1997) (holding an unchallenged ruling becomes the law of the case
regardless of whether the ruling is correct).

"A [C]onfrontation [C]lause error is harmless if the evidence is overwhelming
and the violation so insignificant by comparison that we are persuaded, beyond a
reasonable doubt, that the violation did not affect the verdict." State v. Holder, 382
S.C. 278, 285, 676 S.E.2d 690, 694 (2009) (quoting State v. Vincent, 120 P.3d 120,
124 (Wash. Ct. App. 2005)). When determining whether an error is harmless, this
Court considers, inter alia: "the importance of the witness' testimony in the
prosecution's case, whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution's case." Van Arsdall, 475 U.S. at 684.

In finding the trial court's error in failing to admit testimony of Mother 2's U-
visa application harmless, the Court of Appeals reasoned:
 Perez proffered no evidence Mother 2 knew about U visas before she
reported Perez's acts against Minor 2. Without such evidence, Mother
2's undocumented status made it less likely she would falsely report a
crime because this would bring her to the State's attention and
possibly lead to her deportation. Moreover, nothing in Mother 2's
proffered testimony suggests the State's recommendation that Mother
2 obtain a U visa was quid pro quo for her or Minor 2's testimony.
Mother 2 denied someone from the solicitor's office put her in contact
with an attorney to assist with the application. She also denied "a victim
advocate or helper" put her in touch with an immigration attorney. She
simply stated she found out about the attorney assisting with the
application "[w]hen we went for [Minor 2] to have her questioning and
exam[,] they gave us several information sheets and that was one of
them." Also, unlike Minor 1's mother, Mother 2 denied having applied
for other governmental benefits such as food stamps since she applied
for the U visa. Therefore, Mother 2's proffered testimony does not
suggest "[Mother 2] was receiving assistance from the State in
exchange for her daughter's testimony," or that her "testimony
against Perez was 'bought and paid for' by the State via U [v]isas' as
Perez argues.

Perez, at *4 (emphasis added).

We find the Court of Appeals' credibility analysis inappropriate for appellate
review. As appellate courts in this state have recognized:

Even where the evidence is uncontradicted, the jury may believe
all, some, or none of the testimony, and where the credibility of the
witness has been questioned, the matter is properly left to the jury to
decide: "The fact that evidence is not contradicted by direct evidence
does not render it undisputed, as there still remains the question of its
inherent probability and the credibility of the witnesses or his interest
in the result. . . . If there is anything tending to create distrust in his
truthfulness, the question must be left to the jury."

Ross v. Paddy, 340 S.C. 428, 434, 532 S.E.2d 612, 615 (Ct. App. 2000) (quoting
Terwilliger v. Marion, 222 S.C. 185, 188, 72 S.E.2d 165, 166 (1952)). Perez's jury
was not given an opportunity to assess the credibility of Mother 2. Therefore, we
agree with Perez that "the Court of Appeals has, in effect, improperly ruled on the
credibility and weight of [Mother 2's] testimony and usurped the role of the jury."
Giving due consideration to the Van Arsdall factors, we also agree with Perez that
the trial court's error in refusing to admit Mother 2's testimony concerning her U-
visa application was not harmless beyond a reasonable doubt.

Here, because there was no physical evidence of the alleged abuse, the case
rested solely on credibility determinations. Thus, Perez's opportunity to elicit
testimony from the State's witnesses regarding any potential bias was critical to his
defense.

In particular, Mother 1 and Mother 2 both applied for U-visas as a result of
Minor 1's and Minor 2's accusations. Considering the significance of obtaining a U-
visa and the manner in which the visa is acquired, a jury could see the U-visa
applications as a means of establishing bias in Minor 1, Minor 2, Mother 1, and
Mother 2. See Romero-Perez v. Commonwealth, 492 S.W.3d 902, 906 (Ky. Ct. App.
2016) (recognizing the U-visa program's requirement that the victim be helpful to
the prosecution could incentivize the victim to fabricate allegations or embellish
their testimony in order to have their U-visas granted). Indeed, even the Court of
Appeals acknowledged that Mother 2's U-visa testimony was relevant "to any theory
that the victims falsely alleged these crimes in an attempt to gain citizenship for their
parents" as well as "to establish bias by demonstrating Mother 2 agreed to participate
in the investigation or encouraged Minor 2 to participate in order to obtain the visa."
Perez, at *4. Therefore, prohibiting Mother 2 from testifying about her U-visa
application prevented Perez from establishing a full picture of the witnesses' biases.
Moreover, testimony concerning Mother 2's U-visa application would not have been
cumulative to other testimony in the record.

Although the failure to admit evidence of a witness' U-visa does not
automatically equate to reversible error, we find the trial court's failure to admit
evidence of Mother 2's U-visa application particularly significant in this case given:
(1) the lack of physical evidence of the alleged abuse; and (2) Minor 1's conflicting
testimony. See Gracely, 399 S.C. at 377, 731 S.E.2d at 887 ("In a case built on
circumstantial evidence, including testimony from witnesses with . . . suspect
credibility, a ruling preventing a full picture of the possible bias of those witnesses
cannot be harmless.").

For these reasons, we find the Confrontation Clause violation was not
harmless. Accordingly, we reverse the Court of Appeals' decision and remand for a
new trial. See State v. Henson, 407 S.C. 154, 754 S.E.2d 508 (2014) (ordering a new
trial after finding the Confrontation Clause violation was not harmless error). Based
on our disposition of this issue, we decline to reach the remaining issues on appeal.
See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (providing this Court need not address remaining issues when
disposition of prior issue is dispositive of the appeal).

IV. Conclusion

Accordingly, we reverse the Court of Appeals' decision and remand for a new
trial.

REVERSED AND REMANDED.

KITTREDGE, J., and Acting Justice James E. Moore, concur. HEARN,
J., concurring in a separate opinion in which BEATTY, C.J., concurs. Acting
Justice Pleicones not participating.
JUSTICE HEARN: I concur in the result reached by the majority; however, I write
separately because I believe the Court should take this opportunity to overturn our
holding in State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009), which, in my
opinion, has so expanded the admissibility of prior bad acts in sexual offense cases
that the exception has swallowed the rule.

Generally, evidence of a person's character is not admissible to prove he acted
in conformity therewith. Rule 404(a), SCRE. Accordingly, evidence of prior crimes
or bad acts is admissible only in limited circumstances––to show motive, identity,
the existence of a common scheme or plan, the absence of mistake, or intent. Rule
404(b), SCRE. The seminal case in South Carolina establishing the test for
admissibility of prior bad acts is State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
In Lyle, the defendant was charged with forging a check in Aiken and the State
sought to admit into evidence several prior acts of forgery that took place in Georgia.
Explaining the admissibility of those prior offenses based on the common scheme
or plan exception, this Court held,

Whether such crime was committed as part of a common plan or system
was wholly immaterial, unless proof of such system would serve to
identify the defendant as the perpetrator of the particular crime charged
or was necessary to establish the element of criminal intent. Proof of a
common plan or system, therefore, in this connection is merely an
evidential means to the end of proving identity or guilty intent, and
involves the establishment of such a visible connection between the
extraneous crimes and the crime charged as will make evidence of one
logically tend to prove the other as charged. If, as we have seen, no such
connection was shown to exist between the separate Georgia offenses
and the Aiken crime as would constitute them practically "a continuous
transaction" or as would otherwise render this evidence relevant to
prove identity, and if, as we have held, the evidence was not competent
on the question of intent, it follows that it was not admissible merely to
show plan or system.

Id. at 427, 118 S.E. at 811 (internal citations omitted).

Decades later, the Court revisited the common scheme or plan exception in
the context of sexual offenses and declined to adopt the more relaxed rule used in
several other jurisdictions which allowed the introduction of prior sexual offenses to
prove a defendant's "lustful disposition." State v. Nelson, 331 S.C. 1, 14 n. 16, 501
S.E.2d 716, 723 n. 16 (1998). Presciently, the Nelson court cautioned against the
expansion of the exception lest it become a "cleverly disguised way of getting
impermissible character evidence before the jury." Nelson, 331 S.C. at 14, 501
S.E.2d at 723; see also Daggett v. State, 187 S.W.3d 444, 451–52 (Tex. Crim. App.
2005) ("Repetition of the same act or same crime does not equal a 'plan.' It equals
the repeated commission of the same criminal offense offered obliquely to show bad
character and conduct in conformity with that bad character––'once a thief, always
a thief.'") (footnote omitted).

However, in a marked departure from earlier case law requiring some
connection between crimes beyond mere similarity in order to meet the common
scheme or plan exception, see State v. Hough, 325 S.C. 88, 95, 480 S.E.2d 77, 80
(1997), the Wallace majority held, "A close degree of similarity establishes the
required connection between the two acts and no further 'connection' must be shown
for admissibility." 384 S.C. at 434, 683 S.E.2d at 278. Under this framework, prior
bad acts are admissible as a common scheme or plan in sexual abuse cases when the
similarities to the charged crime outweigh the dissimilarities. Id. at 433, 683 S.E.2d
at 278.

I believe Wallace broadened the common scheme or plan exception to such
an extent that it no longer has a meaningful exclusionary effect in sexual offense
cases. Without requiring a greater degree of connection beyond only a mere
similarity, the exception has been enlarged such that it has become simply a means
to prove a defendant's criminal propensity. See State v. Ives, 927 P.2d 762, 768
(Ariz. 1996) ("A broad definition of 'common scheme or plan' allows the state to
raise the inference of guilt based solely on 'a disposition toward criminality.'"). This
is contrary to Rule 404(a), SCRE, and the traditional principle enunciated in Lyle
that common scheme or plan evidence is not competent unless it demonstrates a
continuous transaction or has some bearing on the defendant's identity or guilty
intent. See State v. Aakre, 46 P.3d 648, 655 (Mont. 2002) ("Put another way, the
government must prove that the prior crimes, wrongs or acts and the charged offense
are linked as integral components of the defendant's common purpose or plan to
commit the current charge.") (emphasis added).

The dangers in permitting the liberal admission of such prior bad acts are
readily apparent. In fact, this Court has repeatedly warned of the prejudicial dangers
stemming from the introduction of prior bad acts which are similar to the one for
which the defendant is being tried. See, e.g., State v. Brooks, 341 S.C. 57, 62, 533
S.E.2d 325, 328 (2000); State v. Gore, 283 S.C. 118, 121, 322 S.E.2d 12, 13 (1984).
Absent an amendment to our rules of evidence creating a different categorical rule
for sexual offenses, I would apply the common scheme or plan exception equally to
sexual and nonsexual offenses alike. In the context of sexual offenses, mere
similarities alone do not necessarily establish a logical connection between the crime
charged and the prior bad acts such that the existence of one tends to prove the
existence of the other.4 See State v. Fletcher, 379 S.C. 17, 23, 664 S.E.2d 480, 483
(2008) ("To be admissible, the bad act must logically relate to the crime with which
the defendant has been charged."). Similarity between the prior bad act and the
crime charged is not the type of connection such that proof of one is proof of the
other. See State v. Moore, 6 S.W.3d 235, 241 (Tenn. 1999) ("A common scheme or
plan is not found merely because the similarities of the offenses outweigh the
differences. Rather, the trial court must find that a distinct design or unique method
was used in committing the offenses before an inference of identity may properly
arise.") (footnote omitted).

Accordingly, I would overrule Wallace and restore the common scheme or
plan exception in sexual misconduct cases to its original purpose as articulated in
Lyle whereby proof of a common plan or system requires "the establishment of such
a visible connection between the extraneous crimes and the crime charged as will
make evidence of one logically tend to prove the other as charged." Just as mere
similarities between the prior bad act and the crime charged would be insufficient in
the case of all other crimes, it should likewise be insufficient when sexual
misconduct is involved.
BEATTY, C.J., concurs.

4
The Wallace court stated, "Such evidence is relevant because proof of one is strong
proof of the other." 384 S.C. at 433, 683 S.E.2d at 277. I find this statement at odds
with the Court's subsequent holding establishing similarity as the baseline test for
admissibility because similarity with prior bad acts does not necessarily constitute
"strong proof" of the offense for which the defendant is being tried. Rather, the
emphasis on similarity suggests the probative value of prior bad acts goes towards
the defendant's propensity to act in conformity with those bad acts, undermining the
strong policy against character evidence. See State v. Melcher, 678 A.2d 146, 149
(N.H. 1996) (explaining New Hampshire's Rule 404(b) "serves 'to ensure that the
defendant is tried on the merits of the crime as charged and to prevent a conviction
based on evidence of other crimes or wrongs[]'").