THIS OPINION HAS NO PRECEDEN TIAL VALUE. IT SHOULD NOT BE

CITED OR RELIED ON AS PRE CEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Gary Eugene Lott, Petitioner.

Appellate Case No. 2015-001981

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from Greenwood County Eugene C. Griffith Jr., Circuit Court Judge

Memorandum Opinion No. 2019-MO-033 Heard February 14, 2018 – Filed August 7, 2019

REVERSED AND REMANDED

Appellate Defender Kathri ne Haggard Hudgins, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant Attorney General David A. Spencer, and Assistant Attorney General Mark Reynolds Farthing, all ofColumbia; and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

JUSTICE JAMES: Gary Eugene Lott was indicted for first-degree criminal sexual conduct (CSC) with a minor and committing a lewd act on a minor . The young girl (Victim) was eleven years old at the time of the incident. Vic tim alleged Lott—a friend of her mother and step-father—had spent the night at the ir home and had touched her inappropriately while she was asleep on the couch i n the living room. Lott denied touching Victim at any point throughout the night a nd denied ever touching Victim inappropriately.

Lott's first-degree CSC with a minor charge was premised on (1) the sexual battery alleged by Victim and (2) Lott's 1996 conviction for co mmitting a lewd act on a minor, in which he was required to register as a sex offen der. See S.C. Code Ann. § 16-3-655(A)(2) (2015) (providing a person is guilty of f irst-degree CSC with a minor if "the actor engages in s exual battery with a victim w ho is less than sixteen years of age and the actor has previously been convicted of, pled guilty or nolo contendere to, or adjudicated d elinquent for an offense listed in Section 23-3

- 430(C) [1] or has been ordered to be included in the sex offender registr y pursuant to Section 23-3-430(D)").

Prior to trial, Lott moved for the trial court to limit the int roduction of evidence concerning his 1996 lewd act conviction. He argued the State sought to introduce this evidence "for the obvious purpose" of revealing to the jury his propensity to commit sexual offe nses against children. Lott co ntended such

introduction would constitute a v iolation of Rule 403 of the So uth Carolina Rules of

1 Although committing a lewd act on a minor is not currently on the list of qualifying offenses in section 23-3-430(C) of the South Carolina Code (Sup p. 2018), it was listed as a qualifying offense when Lott was indicted in 2011. See S.C. Code Ann. § 23-3-430(C)(11) (Supp. 2010). The lewd act statute was repea led in 2012, but "[t]he crime that was lewd act is now classified as [CSC] with a minor in the third degree." State v. McGaha , 404 S.C. 289, 293 n.3, 744 S.E.2d 602, 604 n.3 (Ct. App. 2013). Third-degree CSC with a minor has since replaced the of fense of committing a lewd act on a minor on the list of qualifying offenses. See S.C. Code Ann. § 23

- 3-430(C)(6) (Supp. 2018).Evidence. 2 The State argued evidence of the prior lewd act conviction wa s extremely probative because it was an element of the first-degr ee CSC with a minor charge that it was required to prove.

To lessen the prejudicial effect of the evidence, Lott offered to stipulate that he had previously been convicted of a crime listed in section 2 3-3-430(C) and that he was required to register as a sex offender pursuant to his c onviction. Alternatively, Lott proposed to bifurcate the proceedings to pe rmit the State to prove the prior conviction element after the jury determined whether he was guilty of the underlying sexual elemen t of the offense.

The trial court denied Lott's re quests, and the State introduce d evidence of his

1996 conviction for lewd act and evidence of his sex offender r egistration. The jury acquitted Lott of the first-degree CSC with a minor charge but convicted him of committing a lewd act on a minor. The trial court imposed a fi fteen-year prison sentence. The court of appeals affirmed. State v. Lott , Op. No. 2015-UP-266 (S.C. Ct. App. filed May 27, 2015). We granted Lott's petition for a writ of certiorari.

Pursuant to our recent decision in State v. Cross , Op. No. 27903 (S.C. Sup. Ct. filed July 24, 2019) (Shearouse Adv. Sh. No. 30 at 33), we hold the trial court erred in refusing Lott's request to bifurcate the trial. A bif urcated proceeding would allow the State to present evidence of all elements of the crime charged and would remove any unfair prejudice that would arise during a unitary t rial. Therefore, we reverse Lott's conviction and remand for a new trial on the committing a lewd act on a minor charge. Because Lott was previously acquitted of the f irst-degree CSC with a minor charge, he cannot be retried for this same offense. See State v. Parker

, 391

S.C. 606, 612, 707 S.E.2d 799, 801 (2011) (providing that pursu ant to the law of double jeopardy, a defendant may not be prosecuted for the same offense after an acquittal).

REVERSED AND REMANDED.

BEATTY, C.J., KITTREDGE and HEA RN, JJ., and Acting Justice Dani el Hall, concur.

2 See Rule 403, SCRE ("Although relevant , evidence may be excluded if its probative value is substantially outweighed by the danger of un fair prejudice . . . .").