THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Melvin Presley Stukes, Petitioner.

Appellate Case No. 2015-000908

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Richland County
The Honorable DeAndrea G. Benjamin, Circuit Court Judge

Opinion No. 27633 Heard January 13, 2016 – Filed May 4, 2016

REVERSED AND REMANDED

Appellate Defender Kathrine H. Hudgins, of Columbia,
for Petitioner.

Attorney General Alan M. Wilson, Assistant Attorney General Susannah R. Cole, A ssistant Attorney General Mary W. Leddon, and Solicitor Daniel E. Johnson, all of Columbia, for Respondent.JUSTICE HEARN: Melvin P. Stukes appeals his conviction for criminal sexual conduct (CSC) a nd first degree burglary, argui ng the court of appeals erred in affirming the trial court's jury instru ction that Victim's testimony need not be corroborated by additional evidence or te stimony pursuant to Section 16-3-657 of the South Carolina Code (2003). 1 We reverse and hold inst ructing the jury on this statute is an impermissible charge on the facts and therefore unconstitutional. We further overrule our precedent condoning this instruction.

FACTUAL/PROCEDUR AL BACKGROUND

On the evening of May 10, 2004, Vic tim arrived at he r friend Jaqueline
Bruton's home and informed her she had b een sexually assaulted that evening. Bruton encouraged Victim to seek me dical care and brought Victim to the Lexington Medical Center for an exam. At the hospital, Victim underwent a sexual assault examination, which includ ed an interview, the collection of her clothing, and a vaginal swab. Although there was no sign of pelvic or vaginal injury, Victim did display some redness on her face around her cheek and eye, as
well as around her neck.

By January 2005, a DNA profile was developed based on a sample obtained from Victim's underwear, but no match was found. Then, in June 2007, the DNA profile was finally matched to an indi vidual—Stukes. The police attempted to locate Victim, but did not discover her wh ereabouts until early 2010, when a cold case team began investigating the matter . Finally, in May 2010, police arrested Stukes. He denied knowing Victim after being shown a picture of her and stated he had only had sex with two white wo men, and she was not one of them. However, when confronted with the evidence of her DNA, he admitted he must
have had sex with her. He was ultimately charged with CSC and burglary; the case proceeded to trial before a jury.

At trial, Victim testified that on th e evening of the incident she was getting ready for work around 9:30 p.m. when she heard a knock at the door. Upon opening the door, a man grabbe d her throat and punched he r in the face, causing
her to stumble and fall over the side of he r couch. She believed she blacked out after falling, and the next thing she remembered was he r face being shoved into the pillows on her couch and a pain in her vagi nal area as she was being raped. After

Section 16-3-657 provides, "[t]he testimony of th e victim need not be corroborated in prosecutions [f or criminal sexual conduct]." 1blacking out again, Victim testified that once she regained consciousness, the man was gone and her clothes were down around her ankles. Victim stated she tried to call Bruton, but when she did not answer , she drove to Bruton's home. Victim could not identify the attacker, but denied ever having consensual sex with Stukes. 2

Stukes testified in his ow n defense. He stated he met Victim at a friend's apartment in the complex wh ere she lived. After flirting awhile, Stukes alleged Victim invited him back to her apartment, where they ultimately ended up having

sex.

During the jury charge conference, Stukes objected to the instruction on section 16-3-657, arguing it violated his right to equal protection and amounted to an impermissible comment on the facts. The trial court denied the request and included this statement in its charge: "The testimony of a victim in a criminal sexual conduct prosecution n eed not be corroborated by other testimony or evidence," in addition to the general ch arge on credibility determinations.

During the course of deliberations, th e jury submitted a number of questions to the trial court, including: "the South Carolina law that the victim's testimony in
CSC . . . does not need to be corroborated, . . . does that law imply that the victim's testimony must be accepted as being tru e?" In response, the court simply recharged the general law on credibility determinations. The jury almost immediately returned with a verdict, fi nding Stukes guilty of burglary and CSC.
He was sentenced to tw enty-five years.

On appeal, the court of appeals affirmed in an unpublished opinion. State v.
Stukes , Op. No. 2015-UP-014 (S.C. Ct. App. f iled January 14, 2015). This Court granted certiorari.

ISSUE PRESENTED

Did the court of appeals err in affi rming the trial court's charge that a victim's testimony need not be co rroborated by additional evidence?

LAW/ANALYSIS

Stukes argues the trial court erred in charging section 16-3-657 on the basis that a victim's testimony need not be co rroborated with additional evidence. We

2 When Victim was shown a photo lineup, she indicated that Stukes "looked familiar" but she could not say she knew him.agree this constitutes an impermissible charge on the facts and overrule the precedent to contrary.

Jury instructions should be designed to enlighten the jury and aid it in arriving at a correct verdict. State v. Leonard , 292 S.C. 133, 137, 355 S.E.2d 270, 273 (1987). Regardless of whether the char ge is a correct statement of the law, instructions which confuse or mislead the jury are erroneous. Id. When reviewing a jury charge for error, an appellate co urt considers the charge as a whole; the charge must be prejudicial to the appellant to warrant a new trial. State v. Curry

, 406 S.C. 364, 373, 752 S.E.2d 263, 267 (2013).

In State v. Rayfield , 369 S.C. 106, 631 S.E.2d 244 (2006), this Court affirmed the trial court's charge of sect ion 16-3-657. In so holding, the Court considered not only the entirety of the jury charge, but also the legislative intent
behind enactment of the statute. Id. at 117–18, 631 S.E.2d at 250. The Court initially opined that section 16-3-657 "p revents trial or a ppellate courts from finding a lack of sufficient evidence to support a conviction simply because the alleged victim's testimony is not corroborated." Id. at 117, 631 S.E.2d at 250. However, the Court went further and he ld that in enacting section 16-3-657:

the Legislature recognized that crimes involving criminal sexual conduct fall within a unique category of offenses against the person. In many cases, the only witnesses to a rape or sexual assault are the perpetrator and the victim. An investigation may or may not reveal physical or forensic evidence identifyi ng a particular perpetrator. The Legislature has decided it is reas onable and appropriate in [CSC] cases to make abundantly clear—not on ly to the judge but also to the jury—that a defendant may be convicted solely on the basis of a victim's testimony.

Id. Accordingly, the Court held that while a trial court is not required to charge section 16-3-657, if it does, the charge is not reversible error provided this instruction is "not unduly emphasized and the charge as a whole comports with the
law." Id. at 117–18, 631 S.E.2d at 250.

Then-Justice Pleicones dissented and would have found the charge
reversible error. Under his view of the legislative intent, the statute is not the proper subject of a charge, but merely serves to guide tr ial and appellate courts in analyzing the sufficiency of evidence. Id. at 119, 631 S.E.2d at 251 (Pleicones, J., dissenting). Additionally, he noted this charge "has the potential for creating moreproblems than solutions, for it might cause confusion when read with the general charge on witness credibility." Id. at 120, 631 S.E.2d at 251 (internal citations omitted). Furthermore, he noted that placing this emphasis on the victim's testimony appeared to be a comment on the facts by the court. Id. at 120, 631
S.E.2d at 252.

We are persuaded by the dissent in Rayfield and conclude this charge is confusing and violative of the constitu tional provision prohibiting courts from commenting to the jury on the facts of a case. See S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matt ers of fact, but shall declare the law."). Accordingly, it is not within the province of the court to express an opinion to the jury on its view of the facts. By addre ssing the veracity of a victim's testimony in its instructions, the trial court emphasizes th e weight of that evidence in the eyes of the jury. The charge invite s the jury to believe the victim, explaining that to confirm the authenticity of her statemen t, the jury need only hear her speak. 3 Moreover, it is inescapable that this char ge confused the jury. Specifying this qualification applies to one witness creates the inference the same is not true for
the others. This confusion is illustrated by the jury's query as to whether our law implies a victim's testimony must be accepted as being true. In our view the trial court's decision to merely recharge cred ibility, as opposed to answer the question in the negative, did nothing to inform the jury on this issue.

3 Our holding is in accord with a number of other jurisdictions which have likewise determined this charge is improper. See Gutierrez v. State , 177 So. 3d 226, 231–32 (Fla. 2015) ("It cannot be gainsaid that any statement by the judge that suggests one witness's testimony need not be subject ed to the same tests for weight or credibility as the testimony of others has th e unfortunate effect of bolstering that witness's testimony by according it special stat us. The instruction in this case did just that, and in the process effectivel y placed the judge's thumb on the scale to lend an extra element of weight to the victim's testimony."); Ludy v. State , 784 N.E.2d 459, 462 (Ind. 2003) (f inding charge overemphasized testimony of victim and was both confusing and misleading); Veteto v. State , 8 S.W.3d 805, 816 (Tex. Ct. App. 2000) abrogated on other grounds by State v. Crook , 248 S.W.3d 172 (Tex. Crim. App. 2008) (finding jury charge amounted to a comment on the weight of the evidence and was therefore improper). But see Gaxiola v. State , 119 P.3d 1225, 1232 (Nev. 2005) (upholding "no corroboration' instruction," and finding it "does not tell the jury to give a victim's testimony greater weight, it simply informs the jury that corroboration is not required by law").Furthermore, we do not believe this case is amenable to a harmless error analysis. Our review of the record indicates this case hinged on credibility. Victim said it was rape; he said it was c onsensual. The jury was clearly confused as to whether it was required to accept Vict im's testimony as truth. We therefore cannot say the error in this case was harmless beyond a reasonable doubt. 4

CONCLUSION

Based on the foregoing, we overrule our precedent to the extent it condones the use of section 16-3-657 as a jury charge. 5 Additionally, we find the error here
was not harmless and reverse a nd remand for a new trial.

PLEICONES, C.J., and BEATTY, J., conc ur. KITTREDGE, J., dissenting in a separate opinion in which Acting Justice James E. Moore, concurs.

4 While we appreciate the existence of conflicting facts as illuminated in the dissent, we would hesitate to call the ev idence against Stukes overwhelming. The testimony highlighted by the dissent boils dow n to those witnesse s' perception (i.e., credibility assessments) of Victim. Ther efore, we disagree that the error in charging section 16-3-657 can be saved by analyzing the charge as a whole.

5 This includes, but may not be limited to, State v. Rayfield , 369 S.C. 106, 631 S.E.2d 244 (2006); State v. Schumpert , 312 S.C. 502, 435 S.E.2d 859 (1993); State

v. Hill , 394 S.C. 280, 715 S.E.2d 368 (Ct. App. 2011); and State v. Orozco , 392
S.C. 212, 708 S.E.2d 227 (Ct. App. 2011). Therefore, our ruling is effective in this case and those which are pending on direct re view or are not yet final, but not in post-conviction relief.JUSTICE KITTREDGE: I respectfully dissent. I would affirm the court of appeals in result.

I agree with the majority that we should no longer approve the no-corroboration charge, but I would find any error in the tria l court's decision to give the charge in this case harmless. Contrary to the majo rity's portrayal, the evidence presented in
this case was much more than "he said, she said." Multip le witnesses testified to the assault's physical and emotional impact on the victim. Jacqueline Bruton, the victim's friend, saw the victim shortly af ter the victim's encounter with Stukes. Bruton testified there was a handprint on the vi ctim's face or neck after the attack, matching the victim's version of the a ttack. Bruton observed that the victim appeared "afraid." Investigator Bria n Metz of the Richland County Sheriff's Department (the RCSD), who spoke with the victim at the hospital, described the
victim's demeanor as "withdrawn." D onna Sharpe, the ER nurse who examined the victim with a rape kit, described the victim as "n ervous and tearful." Sharpe
testified the victim "would withdraw fro m any kind of touch" and was "anxious and gripping the bed and tearful" when she underwent a pelvic examination. Sharpe's notes also described a bruise and redness on the victim's face and what appeared to be a hand mark on the victim 's neck. Finally, Sergeant Brian Godfrey
of the RCSD testified that the victim was "visibly upset and crying" when he spoke with her about the incident in March 2010, nearly six years afte r it occurred. These witnesses' testimony is consis tent with the victim's, in which she described a brutal assault that included being grabbed by the throat and punched in the face.

In addition to the evidence corroborating the victim's testimony, the jury was presented with Stukes's inconsistent st atements. Stukes initially denied knowing the victim, much less having had sex with her. When pressed with the evidence, including the DNA match, Stukes rememb ered the victim and that they had consensual sex. Therefore, abundant evid ence in addition to the victim's testimony was presented to the jury.

Also conspicuously absent from the majority opinion is the trial court's full jury charge on credibility. "[J]ury instructions should be considered as a whole, and if as a whole they are free from error, any isolated portions which may be misleading
do not constitute reversible error." State v. Aleksey , 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000) (citing State v. Smith , 315 S.C. 547, 554, 446 S.E.2d 411, 415 (1994)). "A jury charge which is substa ntially correct and covers the law does not require reversal." State v. Brandt , 393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011) (citing State v. Foust , 325 S.C. 12, 16, 479 S. E.2d 50, 52 (1996)).In this case, the trial court charged th e jury, in relevant part, as follows:

The testimony of a victim in a criminal sexual conduct prosecution need not be corroborated by other testimony or evidence. Necessarily, you must determine the credibility of witn esses who have testified in this case. Credibility simply means believability. It becomes your duty as jurors to anal yze and to evaluate the evidence and determine which evidence convinces you of its truth.

In determining the believability of witnesses who have testified in this case, you may believe one witness over several witnesses or
several witnesses over one witness . You may believe a part of . . . the testimony of the witness and reject the remaining part of the testimony of that same witness. You may be lieve the testimony of a witness in its entirety, or you may reject the test imony of a witness in its entirety.

You may consider whether any w itness has exhibited to you an interest, bias, prejudice, or other mo tives in this case. You may also consider the appearance and manner of a witness while on the witness
stand.

(emphasis added). When the jury asked for clarification, the trial court instructed the jury that "you must de termine the credibility of all witnesses who have testified in this case. . . . [Y]ou may believe one witn ess over several witn esses, or several
witnesses over one witness. " (emphasis added).

The trial court noted that its second charge made it clear the jury was to consider the credibility of every witness who tes tified, which necessarily included the victim. Therefore, when vi ewed in their entirety, the charges properly instructed the jury that it was to subject the victim's testimony to the same scrutiny as that of other witnesses. Thus, a ny error in giving the no-corroboration charge was cured by the full witness-credibility instructions.

In short, given the substantial corroborati ng evidence and the trial court's extensive credibility instructions, any error was harm less. The result reac hed by the court of appeals, and therefore Stukes's convicti ons and sentences, should be affirmed.

Acting Justice James E. Moore, concurs.