THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Larry Durant, Appellant.

Appellate Case No. 2016-001264

Appeal From Sumter County Roger M. Young, Sr., Ci rcuit Court Judge

Opinion No. 27964 Heard May 9, 2019 – Filed May 6, 2020

AFFIRMED

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood, for Appellant.

Attorney General Alan Wilson and Assistant Attorney General William F. Schumacher, IV, both of Columbia, and Solicitor Ernest A. Finney, III, of Sumter, for Respondent.

JUSTICE HEARN: Appellant Larry Durant wa s convicted of second-degree criminal sexual conduct (CSC) for sexually abusing a teenage girl in his church office where he served as the pastor. Du rant contends the trial court improperly permitted the State to introduce evidence of prior sexual abuse allegations as evidence of a common scheme or plan unde r Rule 404(b), SCRE, and that the Statecommitted a Brady 1 violation by failing to accurately disclose the criminal history of its witness. Applying the framework announced today in State v. Perry , Op. No. 27963 (S.C. Sup. Ct. filed May 6, 2020) (Shearouse Adv. Sh. No. 18 at 12), we affirm the admissibility of the girls' te stimony. Additionally, while the State failed to disclose the criminal background info rmation of its witness, we find this information was not material. Accordingl y, we affirm Durant's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Durant was the founder and lead pastor at Word International Ministries, a church in Sumter. He is a double amputee be low his knees and is legally blind. In 2013, four teenage girls who belonged to the church accused Durant of sexually assaulting them. Two of the girls were c ousins, another was a God-sister, and the fourth was a close friend. The State indict ed Durant on one count of second-degree criminal sexual conduct with a minor, st emming from an alle ged sexual battery against one of the girls, and three count s of third-degree criminal sexual conduct pertaining to conduct with the other three. Ho wever, the State only proceeded to trial
on one count.

During jury selection, the trial court mistakenly advised the jury pool that Durant faced all of the indicted crim inal sexual conduct charges and a forgery charge. Defense counsel imme diately indicated he had "something to bring up at a later time," and the court held a sidebar. Afterwards , the court explained it erroneously listed the charges Durant faced and instructed the jury not to consider them. Following the jury's dismissal, couns el stated he appreciated the court's curative instruction, but was concerned th e jury panel had been tainted. Counsel explained he was "definitely not [asking fo r] a mistrial," but he was requesting a continuance or a new jury panel. The Stat e responded the court had given a curative instruction almost immediately and clearl y stated the charges did not exist. The circuit court acknowledged the mistake wa s unfortunate but believed the curative instruction "took care of it," and accordingl y, denied the motion for a continuance or mistrial.

Because the State sought to call the three other girl s who alleged Durant had sexually abused them in a sim ilar fashion, the court held a Lyle 2 hearing. According

1 Brady v. Maryland , 373 U.S. 83 (1963).

2 State v. Lyle , 125 S.C. 406, 118 S.E. 803 (1923).to one, Durant began abusi ng her when she was 13. She noted that Durant would call her to his office in the back of the c hurch, lock the door, and pray to change her sexual orientation and to protect her against contracting any diseases. She stated that Durant began with oral se x and progressed to vagina l intercourse. Finally, she testified that Durant had pi nk pigmentation on his penis.

A second girl testified that Durant be gan to abuse her wh en she was 18, and that he would pray for her to make sure she did not contract any diseases and to prevent any harm to her body. She contended Durant digita lly penetrated her vagina, which evolved into vaginal intercourse af ter he said, "God was taking him to a new level." She also testified that Durant w ould stand behind her during intercourse. She noted that Durant told her that she likely would not be admitted to the college of her choice if she did not have sex with him.

A third girl testified that Durant began abusing her when she was about 14 or 15 years old, and that he would also pray that she would not contract any sexual diseases. Finally, a fourth girl testified th at Durant began abusing her when she was 13. She also noted that Durant would pray with her before the abuse, and that his genitalia had pink discolorati on. On one occasion when sh e was pregnant, she stated that Durant told her that he would "b ump the seed out." After comparing the similarities and dissimilarities pursuant to State v. Wallace , 384 S.C. 428, 683 S.E.2d 275 (2009), the trial court ruled the girls could testify, as the court remarked, "[f]rankly, it's one of the more compelling 404(b) cases I've ever come across."

At trial, the girls testified, as well as another witness, Ul anda McRae, who is one of the girls' mother. McRae is also the daughter of Lizzy Johnson, a woman Durant previously dated. Durant conten ded that Johnson, who lived in a property purportedly owned by Durant around the time the allegations surfaced, forged a deed conveying that property to Johnson sometim e earlier. When the allegations arose, a deed was recorded conveying the propert y back to Durant. The defense believed these fraudulent transfers served as a motive to fabricate the girls' allegations of sexual abuse. Defense counsel also stressed the lack of DNA, the fact that Durant was a double amputee and legally blind, suffe red from erectile dys function, and had a chronic sexually transmitted disease that none of the alleged victims contracted.

Initially, the jury indicated they were at an impasse and that one juror refused to vote. The court gave an Allen charge and added that re fusing to vote was not an option. Shortly thereafter, the jury found Durant guilty, and the court sentenced him to 20 years' imprisonment.A few hours after sentencing, defens e counsel received a call from McRae's ex-husband inquiring why he did not question McRae about her prior criminal convictions. Defense counsel did not be lieve McRae had a criminal background because the State previously had disc losed a report from the National Crime Information Center (NCIC) stating she di d not have a criminal record. Counsel conducted a SLED CATCH search 3 using her name, date of birth, and social security number, which revealed numerous prior convi ctions under nine a liases for offenses such as shoplifting, fraudulent checks, and forgery spanning from 1991-2005.

Thereafter, Durant moved for a new tria l, arguing the State' s case was based entirely on credibility and the State's failur e to disclose McRae's record prevented him from impeaching a critical witness or further developing his defense that Johnson stole the residence owned by Durant, thereby creating the need to fabricate the charges against him. The State res ponded it had run McRae's criminal history using the NCIC under the name "McCrae" rather than th e correct spelling. 4 The State argued its failure to disclose McR ae's criminal history did not amount to a Brady violation because it was unaware sh e had one and, in any event, it was immaterial to Durant's guilt. Durant disa greed, asserting the State was in possession of the criminal history for Brady purposes because it could have run a proper search but failed to do so.

The circuit court found the State was not in possession of the evidence and that it would not have affected the outco me of the trial. Wh ile some of McRae's convictions were likely inadmissible, the court noted it may ha ve allowed one or more into evidence that would have been favorable to the defe nse, but regardless, the case boiled down to whether the jury believed the testimony of the victim and the three other witnesses regarding assaults. Thereafter, Durant a ppealed to the court of appeals, which transferred the appeal to this Court pursuant to Rule 204(b), SCACR.

3 The South Carolina Law Enforcement Di vision enables public CATCH searches, an acronym for "Citizens Access to Criminal Histories." S LED C ATCH , https://catch.sled.sc.gov (last visited Sept. 5, 2019).

4 The State later clarified it did not include McRae's social security number in the search because it was not in possession of that information at the time.ISSUES

I. Did the trial court err by admitting testim ony of other sexual assaults pursuant to the common scheme or plan exception under Rule 404(b), SCRE?

II. Did the circuit court err in denying Dura nt's motion for a new trial based on a Brady violation?

DISCUSSION

I. Rule 404(b), SCRE

We begin by noting this Court's opinion in State v. Perry , which overruled Wallace and clarified the proper analysis in determining whether prior acts are admissible pursuant to the comm on scheme or plan exception. State v. Perry , Op. No. 27963 (S.C. Sup. Ct. filed May 6, 2020) (Shearouse Adv. Sh. No. 18 at 12). The Court emphasized Lyle's "logical connection" test, wher eby "[t]he State must show a logical connection between the other crim e and the crime charged such that the evidence of other crimes 'reasonably tends to prove a material fact in issue.'" Id. at 30 (quoting Lyle , 125 S.C. at 417, 118 S.E. at 807). To prove a sufficient connection, the State must demonstrate that there is "something in the defendant's criminal process that logically connects the 'o ther crimes' to the crime charged." Id. at 27. This requirement filters permissible eviden ce of prior acts against veiled attempts to introduce propensity evidence. When the State seeks to present this evidence, its burden is a high one, as trial courts must employ "rigid scrutiny." Id. at 30. However, while the proper framework no longer reduces a Rule 404(b) analysis to mathematical exercise wh ere the number of similarities and dissimilarities are counted, the common scheme or plan exception remains viable.

Accordingly, the question then become s whether the admission of the other three girls' testimony can nonetheless be upheld under Perry . While the trial was conducted under Wallace —the parties argued for and ag ainst admissibility using that test and the trial court based its decision on it—we now determine whether the evidence would have been admi ssible under the framework in Perry . In answering this question, case law guides our analysis.

In State v. McClellan , 283 S.C. 389, 323 S.E.2d 772 (1984), this Court determined the trial court properly ad mitted evidence that a defendant hadcommitted previous acts of sexual abuse because the State showed a particularly unique method of committing the attacks. The Court explained:

All three daughters testified concerni ng the pattern of this and prior attacks. According to them, th ese attacks commenced about their twelfth birthday, at which time Appe llant began entering their bedroom late at night, waking them, and taki ng one of them to his bedroom. There he would explain the Biblical verse that children are to "Honor thy Father," and would also indicat e he was teaching them how to be with their husbands. The method of attack was common to all three daughters.

283 S.C. at 391, 323 S.E.2d at 773. The Court concluded, "It would be difficult to conceive of a common scheme or plan more within the plain meaning of the exception than that presented by this evidence." Id. at 392, 323 S.E.2d at 774.

Because McClellan remains good law, we believe the prior acts here are admissible. Durant had a particularly unique method of committing his attacks common to all the girls. While there were differences in their ages and the type of sex act, the method of his attack was more th an just similar; inst ead, evidence of the prior acts "reasonably tend[ed] to pr ove a material fact in issue." Lyle , 125 S.C. at 417, 118 S.E. at 807. Durant exercised his pos ition 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 prayin g 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, a striking parallel to the defendant in McClellan . Indeed, the trial court noted it was one of the more co mpelling cases of comm on scheme or plan evidence it had ever seen, and we agree. Th ese facts demonstrate the requisite logical connection between the prior acts of sexual abuse and the one forming the basis of the crime charged.

II. Brady

Durant contends the trial court erred in declining to grant a new trial based on the State's failure to disclose the criminal history of one of its witnesses. The State asserts its failure to provide McRae's criminal history did not amount to a Brady violation because it was una ware that she had one, and regardless, the evidence wasimmaterial because it did not impact the cr edibility of any of the four witnesses who testified about the sexual a buse Durant committed agains t them. The State asserts McRae was an immate rial witness whose testimony was cumulative to other evidence presented at trial, and further, Durant never alleged sh e was involved in the property dispute that caused the victims to report the abuse.

A Brady violation occurs when the evidence at issue is: 1) favorable to the accused; 2) in the possession of or known to the prosecution; 3) suppressed by the prosecution; and 4) material to the defendant's guilt or punishment. Gibson v. State

, 334 S.C. 515, 524, 514 S.E.2d 320, 324 (1999). Such a violation is material when there is a reasonable probability that, had th e evidence been disclosed to the defense, the result of the proceeding w ould have been different. Id . at 525, 514 S.E.2d at 325. In other words, the government's evidentia ry suppression is so serious as to undermine confidence in the trial's outcome. Id

. Brady applies to both impeachment and exculpatory evidence. Id . at 524, 514 S.E.2d at 324. Importantly, whether the prosecution acted in good or bad faith is irrelevant in dete rmining whether a Brady violation occurred. Brady , 373 U.S. at 87.

In this case, the evidence was clearly favorable to Du rant, as defense counsel could have used it to impeac h McRae. Accordingly, we turn to the second element —that the State possessed the information.

Because of the absence of South Ca rolina case law on the possession element in this context, we are guided by decision s from two federal circuits. The Third and Fifth Circuits have held the failure to provide information that could be obtained through a NCIC search is a Brady violation. United States v. Perdomo , 929 F.2d 967, 969-73 (3d Cir. 1991); United States v. Auten , 632 F.2d 478, 481 (5th Cir. 1980) (finding a Brady violation where the government di d not conduct a NCIC search of one of its witnesses despite assigning no bad motive on the government). Because we find these decisions persuasive, we adopt the reasoning employed therein.

In Perdomo , the defendant sought a government confidential informant's criminal record. Id . at 968-69. The prosecution conducted an NCIC search, which revealed no prior charges or convictions, but elected not to request local records from the Virgin Islands. Id . at 971. When it came to light that the informant had a significant criminal record the day after tr ial, the defendant m oved for a new trial, which the district court denied. Id . 968-69. The Third Circuit held the district court erred as a matter of law in concluding the prosecution had no duty to conduct the search and provide the information, and remanded for a new trial. Id . at 970-74. Inrelevant part, the court recognized that "the prosecution, not the defense, is equipped with the resources to accurately and comp rehensively verify a witness['s] criminal background." Id . at 973. Despite defense counsel's ability to obtain similar information through a public search, the c ourt refused to shift the burden to the defense to obtain Brady information.

In Auten , the Fifth Circuit held the government violated Brady when it decided not to conduct a criminal background search on one of its own witnesses because of time constraints. 632 F.2d at 481. The govern ment asserted that it could not suppress or withhold evidence that it did not know ex isted. The court rejected this approach, noting, "[W]e do not assign bad motive or bad faith to the prosecution. We do underscore, however, the heavy burden of the prosecutor to be even-handed and fair in all criminal proceedings." Id. at 481.

We have cited Auten with approval in the pa st by acknowledging that "information known to investigative or pr osecutorial agencies may, under certain circumstances, be imputable to the State." State v. Von Dohlen , 322 S.C. 234, 240, 471 S.E.2d 689, 693 (1996), overruled on other grounds by State v. Burdette , 427 S.C. 490, 832 S.E.2d 575 (2019). While we have also not required the State to conduct a fishing expedition to discover exculpatory evidence, see id. at 241, 471 S.E.2d at 693, requiring the State to provide accurate criminal background information on its own witnesses hardly can be described as such . We recognize that some jurisdictions construe Bra dy's possession requirement narrowly. See, e.g. United States v. Young , 20 F.3d 758, 764-65 (7th Ci r. 1994) (declining to impute prosecutorial knowledge of a witness' cr iminal history when the government diligently searched for that informat ion). Some courts have excused the government's failure to disclose if the info rmation is readily available to the public. See State v. Nikolaenko , 687 N.E.2d 581, 583 (Ind. Ct. A pp. 1997) ("[T]he State will not be found to have suppr essed material information where that information was available to the defendant through the exer cise of reasonable diligence."). However, we believe the better approach is to hold the State responsible for fulfilling its prosecutorial duties, including the duty to disclose under Brady

. This rule is sound, as faulting defens e counsel for failing to discover material information about the State's own witnesses "breathes uncertainty into an area that should be certain and sure" be cause "[s]ubjective speculati on as to defense counsel’s knowledge or access may be inaccurate." Dennis v. Sec'y, Pennsylvania Dep't of Corr. , 834 F.3d 263, 293 (3d Cir. 2016). Shifti ng the burden to defense counsellessens the State's duty to disclose exculp atory evidence and has the risk of adding an additional element to Brady

. Id. ("Adding due diligence, whether framed as an affirmative requirement of defense counsel or as an exception from the prosecutor’s duty, to the well-established three-pronged Brady inquiry would similarly be an unreasonable application of, and contrary to, Brady and its progeny."). We agree with the Third Circuit that "[a]ny othe r rule presents too slippery a slope." Id. at 292.

With this in mind, we move to the f acts of this case. Defense counsel first realized that McRae had a criminal hi story after her ex-husband notified him immediately after trial. The ex-husband expressed bewilderment that defense counsel did not ask about McRae's prior convi ctions during trial. Thereafter, counsel obtained a SLED background search using Mc Rae's name, date of birth, and social security number, which rev ealed numerous prior convicti ons under seve ral different aliases. While we concede this demonstrat es the information was publicly available after paying for a search, this does not en d the inquiry. The government not only has greater resources, Perdomo , 929 F.2d at 973, but also exclusive access to the NCIC database. 5 Moreover, when the State discloses Brady material, the defense has the right to rely on its veracity. We find it en tirely unreasonable to shift the burden to the defense to independently investigat e the criminal background of each of the State's own witnesses when the State has a ffirmatively claimed that its witness does not have a criminal background. It is no t incumbent on the defense to review the State's NCIC search for misspelled name s. While we do not suggest any improper motive by the State, we will not undermin e a defendant's due process rights by overlooking and immunizing the State's mist ake. Accordingly, we hold as a matter of law that the State was in possession of McRae's crim inal background information and failed to accurately disclose it. Nevertheless, to warrant a new trial, Durant must demonstrate the trial court abused its discretion in finding the information was immaterial, a burden he fails to satisfy. State v. Bryant , 372 S.C. 305, 316, 642 S.E.2d 582, 588 (2007) (reviewing a Brady violation for an abuse of discretion).

Initially, we note McRae's criminal history included several convictions, many of them over ten years old, so it is un likely that most of them would have been admissible. While we agree w ith the trial court that McR ae's conviction for obtaining a signature under false pretenses likely w ould have been admissible, the defense never suggested that McRae—as opposed to Johnson—forged the deed. Perhaps

5 FBI Criminal Justice Information Services Division, National Crime Information Center

, https://www.fbi.gov/services/cjis/ncic (last visited Sept. 5, 2019).more importantly, the State pr esented cumulative evidence in the form of the girls' testimony. As a result, the jury had ample evidence supporting its verdict. Accordingly, Durant cannot demonstrate the evidence was mate rial because there was not a reasonable probability the resu lt of the proceedings would have been different. See United States v. Bagley , 473 U.S. 667, 682 (1985) ("A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.").

CONCLUSION

For the foregoing reasons, we affirm. 6

6 Durant also contended the trial court erred in denying his motion for a mistrial due to an allegedly tainted ju ry pool, and his motion fo r a new trial based on an unconstitutionally coercive Allen charge and cumulative e rror. We affirm these grounds pursuant to Rule 220(b) and the following authorities:

1) As to the alleged tainted jury pool, see State v. Crim , 327 S.C. 254, 257, 489 S.E.2d 478, 479 (1997) (noting a decision to grant or deny a mistrial is reviewed for an abuse of discretion and "[t]he power of the court to declare a mistrial ought to be used with the greatest caution"); Id. at 257, 489 S.E.2d at 479 ("An instruction to disregard objectio nable evidence usually is deemed to have cured the error in its admission unl ess on the facts of the particular case it is probable that notwithstanding such instruction the accused was prejudiced."). Further, the evidence wa s cumulative, so any purported error was harmless. State v. Wyatt , 317 S.C. 370, 373, 453 S.E.2d 890, 891 (1995).

2) As to the Allen charge, see Tucker v. Catoe , 346 S.C. 483, 490, 552 S.E.2d 712, 716 (2001) ("Whether an Allen charge is unconstitutionally coercive must be judged in its context a nd under all the circumstances."); Green v. State , 351 S.C. 184, 194, 569 S.E.2d 318, 323 (2002) ("A trial judge has a duty to urge, but not coerce, a jury to reac h a verdict."). It is apparent the trial court did not err in directing the juror to fulfill the oath he took at the outset of trial, as the court did not urge th e jurors to vote in any specific way. Moreover, the court's suggestion that th e jurors would have to deliberate for as long as they wanted to be there that evening does not render the charge coercive. See Johnson v. Sam English Grading, Inc. , 412 S.C. 433, 454-57, 772 S.E.2d 544, 554-57 (Ct. App. 2015), cert. denied (holding an Allen chargeAFFIRMED.

BEATTY, C.J., KITTREDGE, FEW, JJ., and Acting Justice James Edward Lockemy, concur.

was not improperl y coercive where the c ourt instructed the jury on the Friday before Labor Day that they could deliberate into the night, as well as Saturday, or the following Tuesday).

3) As to the cumulative error doctrine , because the trial court did not commit any reversible errors, we reject Dura nt's contention that a new trial is warranted. See State v. Johnson , 334 S.C. 78, 93, 51 2 S.E.2d 795, 803 (1999) ("Respondent must demonstrate more th an error in order to qualify for reversal [pursuant to the cumulative error doctrine]. Instead, the errors must adversely affect his right to a fair tria l."). Moreover, Durant never argued this ground to the trial court; accordingly, it is not preserved. See State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (holding an argument advanced on appeal that was not raised and ruled on below was not preserved for review).