THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Guadalupe Guzman Morales, Appellant.
Appellate Case No. 2017-001796
Appeal From Lancaster County
Roger E. Henderson, Circuit Court Judge
Opinion No. 5814
Heard February 9, 2021 – Filed April 7, 2021
REVERSED AND REMANDED
Appellate Defender Katherine Haggard Hudgins, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, for Respondent.
KONDUROS, J.: Guadalupe Guzman Morales appealed his convictions for
assault with intent to commit criminal sexual conduct (CSC) with a minor, second
degree; CSC with a minor, second degree; and CSC with a minor, first degree.
This court affirmed his convictions. State v. Morales, Op. No. 2020-UP-001 (S.C.
Ct. App. filed Jan. 8, 2020). The supreme court granted certiorari and reversed and
remanded this court's opinion. State v. Morales, Op. No. 2020-MO-009 (S.C. Sup.
Ct. filed Sept. 23, 2020). This mandate resulted from the supreme court's opinion,
State v. Perry, 430 S.C. 24, 37, 842 S.E.2d 654, 661 (2020), in which it overruled
State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009), a case that was an integral
part of this court's original analysis. Upon reconsideration on remand from the
supreme court, we reverse and remand.
FACTS/PROCEDURAL BACKGROUND
Morales was arrested in 2002 for CSC with a minor based on allegations of
abusing the victim (Victim) between 1999 and 2000. In 2016, a Lancaster County
grand jury indicted Morales.1 At a pretrial hearing, the State moved to allow
Victim's sister (Sister) to testify about prior bad acts by Morales. According to the
State's theory, Sister experienced similar abuse as Victim, and Sister's testimony fit
the common scheme or plan exception under Rule 404(b), SCRE. Sister testified
Morales attempted to have intercourse with her when she was in the third grade;
she explained that one night she had difficulty falling asleep and Morales invited
her into bed. She recalled that when she got into bed with Morales, he pulled her
underpants down and "his penis was touching [her butt]." She also described a
couple of prior occasions when Morales put his hands down her pants. She stated
the abuse began when she was three years old and occurred on three occasions; she
explained the abuse occurred at home when her mother was not there.
Morales objected after Sister's testimony and argued, "We take the position that
[Sister's testimony] should not be admissible because . . . it doesn't meet the test of
[Lyle2] number one. And, number two, it is highly prejudicial." The State argued
Sister's testimony would not be prejudicial because Morales had the opportunity to
cross-examine her and the jury could determine her credibility at trial. The trial
court issued a conditional ruling admitting Sister's testimony over Morales's
objection.
At trial, Victim explained Morales was not her biological father but she grew up
believing he was. She stated Morales began touching her in a sexual manner when
1
Morales moved to quash the indictments based on delay. The circuit court treated
this as a motion for a speedy trial and found the case should go forward after
considering all the evidence presented. This issue is not appealed.
2
State v. Lyle, 125 S.C. 406, 427, 118 S.E. 803, 811 (1923) (explaining the
common plan or scheme exception requires "such a visible connection between the
extraneous crimes and the crime charged as will make evidence of one logically
tend to prove the other").
she was four years old. She further described an escalating period of abuse that
began with touching and progressed to digital penetration. According to Victim's
account, this period of abuse led to an incident on her eleventh birthday when
Morales threatened to withhold her birthday trip to Carowinds if she did not get in
bed with him. She recalled Morales engaging in intercourse with her when she got
in the bed. She also stated the intercourse continued after her eleventh birthday.
She testified Morales abused her at home, in the car, and at the river. She recalled
her mother and siblings were ordinarily out of the house when the abuse occurred.
Prior to Sister's testimony at trial, Morales requested a final ruling on the
admissibility of Sister's testimony. Morales objected to the admission of her
testimony, arguing:
It appears to me that it is becoming a little bit more clear
as to where the conspiracy is, if that's what you want to
call it; the pattern. And I think that now I'm seeing a
pattern of . . . conspiracy. But the consortium of
witnesses that are saying the same thing for the same
reason. We believe it's vindication. We believe . . . it's
stemming from the grandmother.[3] But now after
hearing [Victim's] testimony it appears to be clear that's
what it is. So we think that the testimony of [Sister]
. . . will be improper bolstering of [Victim's] testimony.
We think it is improper and should not be allowed.
The trial court denied the motion without hearing from the State and explained: "I
do find that the similarities outweigh the dissimilarities and taking their testimony
would tend to show a common scheme or plan by Mr. Morales." Sister testified
last for the State. She testified about the alleged abuse from Morales; her trial
testimony was consistent with her pretrial hearing testimony. Sister also confirmed
she grew up believing Morales was her biological father; however, she explained
she was unsure if Morales actually was her biological father and had asked him to
take a paternity test.
3
At trial, Morales attempted to show Victim's grandmother planted the abuse
allegations by pressuring Victim to disclose. During the grandmother's
cross-examination, Morales alleged she was "messed up" and made up the abuse
allegations due to her own history of abuse. He also questioned Sister about her
grandmother's role in disclosing the abuse.
Following Sister's testimony, the State rested, and Morales moved for a directed
verdict. The trial court denied the motion, and Morales testified in his defense. At
the close of trial, the jury found Morales guilty as indicted. The trial court
sentenced him to thirty years' imprisonment for CSC with a minor, first degree; ten
years' imprisonment to be served consecutively for CSC with a minor, second
degree; and ten years' imprisonment to be served concurrently for assault with
intent to commit CSC with a minor, second degree. This appeal followed.
STANDARD OF REVIEW
"A ruling on the admissibility of evidence is within the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. An abuse of
discretion occurs when the trial court's ruling is based on an error of law." State v.
Washington, 379 S.C. 120, 123-24, 665 S.E.2d 602, 604 (2008) (citation omitted).
LAW/ANALYSIS4
4
As an initial matter, the State argues Morales's argument is unpreserved because
he conceded similarities between the Victim's and Sister's testimonies when he
stated:
It appears to me that it is becoming a little bit more clear
as to where the conspiracy is, if that's what you want to
call it; the pattern. And I think that now I'm seeing a
pattern of . . . conspiracy . . . . So we think that the
testimony of [Sister] . . . will be improper bolstering of
[Victim's] testimony. We think it is improper and should
not be allowed.
The State contends Morales's improper bolstering language is evidence he changed
his objection and waived the Rule 404(b) issue. However, the trial court
understood Morales was still arguing against the admission of Sister's testimony as
prior bad act evidence and ruled, "I do find that the similarities outweigh the
dissimilarities and taking their testimony would tend to show a common scheme or
plan by Mr. Morales." Consequently, the issue is preserved. See State v. Hopkins,
431 S.C. 560, 569, 848 S.E.2d 368, 372 (Ct. App. 2020) ("The failure to raise
specific grounds for an objection will not prevent the appellate court from
Morales contends Sister's testimony does not fall within the common scheme or
plan exception for the admission of prior bad act evidence. We agree.
Because this court relied on Wallace in originally deciding Morales's appeal, we
must now re-examine it under the analytical framework set forth in Perry.
In Perry, the court rejected the test adopted in Wallace that determined whether
prior bad acts established a common scheme or plan based exclusively on the
similarities between the prior acts and the pending charges. 430 S.C. at 35-37, 842
S.E.2d at 660-61. According to Perry's majority opinion, a similarities-only test
abandoned the long-standing "logical connection" test established in the seminal
prior bad act case, Lyle. Id.
For the first time in our jurisprudence, contrary to over
eighty years of interpretation of Rule 404(b) and its pre-
Rules predecessor Lyle, the [c]ourt [in Wallace] stated,
"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 436, 683 S.E.2d at 279. . . . We find this statement
from—and the reasoning and holding in—our opinion
in Wallace is based on a misunderstanding of Rule
404(b) and our cases interpreting it, particularly the
"seminal" case Lyle. The decision in Wallace effectively
created a new rule of evidence, and rendered
meaningless the restrictive application of the common
scheme or plan exception that is so deeply embedded in
our precedent. . . . We now overrule Wallace.
Id. (footnotes omitted).
The Perry court instructed that the proper question for determining whether prior
bad act evidence is admissible to prove common scheme or plan under Rule 404(b)
is whether there is a "logical connection." Id. at 44, 842 S.E.2d at 664-65. In
explaining this connection, the Perry court offered the example of State v.
addressing an issue when the record indicates that the trial court and the State
understood the basis for the objection." (quoting State v. Bowers, 428 S.C. 21, 29,
832 S.E.2d 623, 627 (Ct. App. 2019))).
McClellan, 283 S.C. 389, 323 S.E.2d 772 (1984). Perry, 430 S.C. at 41, 842
S.E.2d at 663.
The common scheme or plan exception demands more.
There must be something in the defendant's criminal
process that logically connects the "other crimes" to the
crime charged. For example, in McClellan, we upheld
the admission into evidence of other crimes under the
common scheme or plan exception because the State
proved the defendant used the same particularly unique
method of committing two uncharged crimes that he used
to commit the charged crime. We explained,
All three daughters testified concerning the
pattern of this and prior attacks. According
to them, these attacks commenced about
their twelfth birthday, at which time
Appellant began entering their bedroom late
at night, waking them, and taking one of
them to his bedroom. There he would
explain the Biblical verse that children are to
"Honor thy Father," and would also indicate
he was teaching them how to be with their
husbands. The method of attack was
common to all three daughters.
[McClellan,] 283 S.C. at 391, 323 S.E.2d at
773.
The defendant in McClellan developed a particularized
plan for sexually assaulting his children through which
he invoked the Bible, placed a duty on the children to
"honor" him, and placed himself in the role of "teaching"
them to submit to sexual violence. The fact he carried
out his plan in its unique detail when assaulting all three
children warranted the admission of the uncharged
crimes into evidence. The evidence had a logical
connection to whether a crime was committed and to who
committed it. We emphasize today that McClellan
represents the proper application of Rule 404(b) and
remains good law.
Id. at 41-42, 842 S.E.2d at 663-64.
The supreme court decided two other cases the same day it issued the Perry
opinion and employed its clarified analytical framework to affirm in both
instances. Perry discusses these two cases—State v. Durant, 430 S.C. 98, 844
S.E.2d 49 (2020), and State v. Cotton, 430 S.C. 112, 844 S.E.2d 56 (2020)—as
examples of how courts should apply the "logical connection" analysis.
In Durant, the defendant was charged with CSC in the
second degree for sexually assaulting a young girl at the
church where the defendant served as pastor. The State
offered into evidence the testimony of three other girls
the defendant sexually assaulted as evidence of a
common scheme or plan. We affirmed the trial court's
admission of the "other crimes" because the defendant
used a "particularly unique method of committing his
attacks" and that method was "common to all the girls."
We noted there were differences between the crimes, but
relying on our opinion in this case, refused to engage in a
"mathematical exercise where the number of similarities
and dissimilarities are counted." Rather, we relied on the
fact "the method of his attack was more than just
similar," it was unique, and because of its uniqueness"
'reasonably tended to prove a material fact in issue.'"
Durant, 430 S.C. at 105, 844 S.E.2d at 52 (quoting Lyle,
125 S.C. at 417, 118 S.E. at 807). As to the particular
facts supporting the use of the common scheme or plan
exception, we explained,
Durant exercised his position of trust,
authority, and spiritual leadership to hold
private prayer meetings with teen girls who
had grown up in his church. He told them
he was praying for their health and good
fortune, and represented that part of this
process was touching them sexually and
having intercourse. Durant then warned the
girls of misfortune if they refused or told
anyone. Moreover, he used scripture as a
means of grooming the children into
performing sex acts . . . . Indeed, the trial
court noted it was one of the more
compelling cases of common scheme or plan
evidence it has ever seen.
Durant, 430 S.C. at 106, 844 S.E.2d at 53.
Perry, 430 S.C. at 42-43, 842 S.E.2d at 664 (omission by court).
The second case applying the resuscitated "logical connection" test was Cotton. In
that case, the State offered into evidence the testimony of another victim who had
been kidnapped and sexually assaulted by the defendant seven months earlier.
Perry, at 43, 842 S.E.2d 654, 664. The court found the incidents were "remarkably
similar" and had "extensive" similarities.5 Id. Additionally, because Cotton
claimed he was not with the victim and that DNA evidence on her jeans belonged
to someone else, Cotton's identity was a disputed fact in issue to which the prior
victim's testimony was logically relevant. Id. at 43 n.9, 842 S.E.2d at 664 n.9.
With all these cases in mind, we now return to Morales's case. The manner in
which the abuse began was similar for both girls. Victim and Sister testified the
abuse began with sexual touching at around the same age. Morales was a father-
figure to both girls. The abusive events as to Sister occurred when her mother was
not present in the home. Some of Victim's abuse occurred in the home when
mother was absent but other abusive episodes occurred outside the home. It is
impossible to predict what would have occurred had Morales's alleged abuse of
Sister continued, and we cannot speculate. Overall, in keeping with the analysis
employed in McClellan, Durant, and Cotton, we conclude the prior bad act
evidence in this case was not sufficiently logically connected to the indicted
5
In Cotton, both victims met the defendant online. Cotton, 430 S.C. at 113-14,
844 S.E.2d at 57. He picked them up for a date, forced them both to perform oral
sex, drove each to a secluded location, and raped them. Id. Additionally, each
victim attempted to dissuade Cotton from raping them with a fabricated story and
he indicated he would simply "fix" the fictitious problems by putting on a condom.
Id. at 114, 844 S.E.2d at 57.
conduct such that proof of one tended to prove the other. Rather, the prior bad act
evidence veered more into the inadmissible propensity evidence cautioned against
by precedent and Rule 404(b). Based on all of the foregoing, Morales's
convictions are
REVERSED AND REMANDED.
LOCKEMY, C.J. and HILL, J., concur.