New South Carolina Criminal Sexual Conduct Decision: Bifurcated Trials

In South Carolina, the highest level sex offense against a minor is Criminal Sexual Conduct, First Degree.

“A person is guilty of [Criminal Sexual Conduct] in the first degree if: (1) the actor engages in sexual battery with a victim who is less than eleven years of age; or, (2) the actor engages in sexual battery with a victim who is less than sixteen years of age and the actor has been previously convicted of, pleaded guilty or no contest to, or adjudicated delinquent for an offense listed in Section 23-3-430C) or has been ordered to be included in the sex registry pursuant to Section 23-3-430(D).”

Therefore, the level of the sex offense can be First Degree by commission of the proscribed conduct set forth in the statute, or based on (1) a prior conviction for a listed sex offense or (2) the requirement to register as a sex offender.

A long-standing legal tenant requires that guilt be based only on relevant evidence, and not passion, prejudice, or any extraneous information not related to the offense for which the individual is on trial. Otherwise, individual risks being convicted of a criminal offense based on reasons other than guilt. The Rules of Criminal Procedure, Rules of Evidence, and case law set forth the law and procedure of determining which and how evidence is admitted. The Constitution guarantees individuals procedural and substantive due process of law, often referred to as fundamental fairness. So what happens when the statutory, written law setting forth a criminal offense conflicts with Constitutional rights?

That question has now been answered by the South Carolina Supreme Court in State v. Cross, Opinion No. 27903, (S.C. S.Ct. 2019).

In Cross, the defendant was convicted of Criminal Sexual Conduct, First Degree. In the indictment, the basis for the First Degree charge was the defendant’s prior conviction for a sex offense. The defendant was found guilty by the jury and sentenced to twenty-five years in prison. The South Carolina Court of Appeals affirmed the conviction, and the case was then reviewed by the South Carolina Supreme Court.

Recognizing that the case presented a “conundrum”, and “a collision between the State’s obligation to prove the elements of the crime charged and a proper application of the South Carolina Rules of Evidence to the introduction of evidence necessary to prove one of those elements”, the Court reversed the conviction and remanded the case back to the trial level for a new trial consistent with its opinion.

In its decision, the Court first acknowledged that the evidence of the prior conviction was relevant, noting that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, SCRE. In fact, the prior conviction was an element of the offense required to be proved beyond as reasonable doubt by the State. However, the Court turned to the equally important observation that Rule 403, SCRE, provides in pertinent part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” The Court stated that “[t]he admissibility of prior convictions is always limited by the traditional rules of evidence.”

After reviewing similar approaches to the issue by other appellate courts, the Court adopted the system of bifurcating trials explained by the Supreme Court of Utah in State v. Wareham, 772 P.2d 960 (Utah 1989). The Court completed its ruling by detailing the new procedure for bifurcated trials:

“During the first stage of the bifurcated trial, the State would offer evidence in its attempt to prove the underlying factual predicate of section 16-3-655(A)(2): did Cross commit a sexual battery upon Minor, a person less than sixteen years of age? When the State rested, Cross could offer evidence if he chose to do so. Closing arguments and the trial court’s charge to the jury would follow the introduction of evidence, and the jury would deliberate. If the jury concluded beyond a reasonable doubt Cross committed
a sexual battery upon Minor, the second stage of the trial would commence. During the second stage, the State—and Cross if he so chose—would offer evidence pertinent to the second element of section 16-3-655(A)(2): has Cross been previously convicted of an offense listed under section 23-3-430(C), or was he required to register as a sex offender pursuant to section 23-3-430(D)? At the beginning of the second stage, the trial court, upon request, would instruct the jury that it must not consider its initial guilty verdict as evidence Cross had been previously convicted of an offense under section 23-3-430(C) or that he was required to register as a sex offender. If the jury found the State had proven this element beyond a reasonable doubt, Cross would stand convicted of first-degree CSC with a minor.”

Perhaps the most important observations in Cross are (1) that the South Carolina Criminal Defense Attorney presented with this situation in a Criminal Sexual Conduct trial must request bifurcated trials. It takes no great leap to assume that, on appeal, the attorney’s failure to request bifurcated trials could very well excuse a trial court from not ordering bifurcated trials; and (2) the South Carolina Criminal Defense Attorney should analyze every criminal matter for a determination of whether the reasoning of Cross gives rise to a request for bifurcated trials. The reasoning of the Cross opinion should not be limited to trials of Criminal Sexual Conduct.