August 18, 2009

S.C. court upholds sex abuse rulings

At issue is whether ‘prior bad acts’ can be introduced during testimony


The state’s top court in separate rulings Monday upheld or reinstated convictions in three child sex abuse cases, including one involving an ex-deacon at a large Columbia church.

The majority of justices in all three rulings Monday said the trial judges were correct in allowing testimony of “prior bad acts” by the defendants, though they were not charged criminally in most of the earlier incidents.

The state Attorney General’s Office and victims advocates applauded the decision, saying it will make it easier to convict pedophiles. But defense attorneys said the rulings will allow defendants to be convicted on unproven evidence.

The S.C. Supreme Court voted 4-1 to reinstate the conviction of John Hubner, who was sentenced in 2002 to 36 years in prison after a Richland County jury convicted him of repeatedly molesting a girl who attended First Baptist Church on Hampton Street, one of the state’s largest churches.

Hubner was an active member in the church, teaching Sunday school and volunteering with the junior high youth group. The then-12-year-old girl he was accused of fondling in 1996 and 1997 participated in the youth group and other church activities.

The S.C. Court of Appeals in 2005 reversed Hubner’s conviction on six counts of lewd acts on a child, ruling the trial judge shouldn’t have allowed testimony about Hubner’s 1983 child sex abuse conviction in Maine involving another 12-year-old girl.

Efforts to reach Hubner’s attorney Monday were unsuccessful.

A longtime civil rights attorney who handled the appeal in one of the cases warned Monday that the ruling in his Greenville County case could make it easier to wrongly charge and convict defendants in child sex abuse and other types of criminal cases.

“If you’re ever accused of abusing a child, every single allegation that someone can come up with against you will be admitted,” said Greenwood attorney Rauch Wise. “There will be more people convicted, but we’re doing nothing to improve the quality of those convictions.”

USC criminal law professor Kenneth Gaines, who was not involved in any of Monday’s rulings, also expressed concerns.

“It’s kind of a back-door way of getting this evidence in,” he said. “I think it hurts defendants in these types of cases.”

“My concern would be that it would give prosecutors a license to try to introduce a lot of prior-bad-act evidence,” said 8th Circuit Public Defender Charles Grose, when contacted Monday. Grose submitted a friend-of-the-court brief in the Hubner case on behalf of the S.C. Association of Criminal Defense Lawyers.

Longtime victim advocate Laura Hudson, executive director of the S.C. Crime Victims’ Council, said Monday she was “very pleased” with the rulings.

“Usually, pedophiles are using the same grooming techniques (to lure victims),” she said, so previous acts can show patterns. “I think (the rulings) gives some guidance that will make it easier to prosecute.”

In a prepared statement Monday, Mark Plowden, spokesman for S.C. Attorney General Henry McMaster, whose office represented the state on appeal in the three cases, said, “These rulings strengthen our state’s stand against predators seeking to harm our children.”

In one of the three rulings, the Supreme Court reinstated the Greenville County conviction of Karl Wallace, who was accused of abusing a girl starting when she was 12 and continuing through the ninth grade. In that case, the S.C. Court of Appeals earlier had reversed the conviction, ruling the trial judge shouldn’t have allowed testimony by the girl’s older sister of alleged abuse of her by Wallace.

But the Supreme Court disagreed in a 4-1 vote.

“A close degree of similarity establishes the required connection between the two acts, and no further ‘connection’ must be shown for admissibility,” acting Justice E.C. Burnett wrote for the majority.

The majority offered five guidelines for determining close similarity between the “prior bad act” and the crime charged.

In his dissent, Justice Costa Pleicones, a former Richland County public defender, said the majority of justices “have, in effect, created an exception” to a court evidence rule that generally bans testimony about prior incidents.

In a third ruling Monday, the Supreme Court was unanimous in upholding the Pickens County conviction of Janice Clasby, who was accused of sexually abusing a then 9-year-old girl in June 2004.

The justices said the trial judge properly allowed testimony by the same girl about four incidents of alleged abuse before June 2004. The prior-incident testimony in the Greenville and Richland cases came from other alleged victims.

Reach Brundrett at (803) 771-8484.