State v. Salley

¶1I respectfully dissent because, as explained below, I find the erroneous admission of the wooden sticks constituted reversible error. I would also find the trial court erred in allowing the State to introduce the victim’s photograph as it was irrelevant under State v. Langley, 334 S.C. 643, 515 S.E.2d 98 (1999), but that any error was harmless in light of appellant’s introduction of several pictures of the child.

¶2I agree with the majority that the circuit court committed error in admitting the “highly prejudicial” wooden sticks. Although I would not characterize this error as one of constitutional magnitude, were I to apply the “harmless beyond a reasonable doubt” standard, I would find reversible error here. In my opinion, the standard for reviewing ordinary evidentiary errors such as the one here is whether there is a reasonable probability that the wrongly admitted evidence *175influenced the jury’s verdict. E.g., State v. Green, 397 S.C. 268, 724 S.E.2d 664 (2012). Whether there is such a probability here is a close question.

¶3The majority finds the error harmless by focusing on the evidence that appellant was the perpetrator. As I view the record, I believe the jury was concerned not so much with the question whether appellant beat the child, but rather whether her actions constituted “child abuse and neglect” that “harmed” the victim within the meaning of the homicide by child abuse statute.12 Under the statute, child abuse and neglect is defined as “an act or omission by any person which causes harm to the child’s physical health or welfare.” § 16-3-85(B)(i). Harm is defined in relevant part as “inflicts or allows to be inflicted upon the child physical injury, including injuries sustained as a result of excessive corporal punishment.” § 16-3-85(B)(2)(a). As explained below, I believe the critical issue in this ease was whether the corporal punishment inflicted on this child was excessive and therefore met the statutory definition of harm.

¶4The jury began deliberating at 1:15 pm. Around 4:00 pm the jury asked to be recharged on the definitions found in the statute, to rehear appellant’s testimony of when she took a shower with the victim, and “Dr. Sexton’s testimony from A. to Z.” The jury later asked for two parts of Dr. Sexton’s testimony to be replayed and to be recharged on the statutory *176definitions. The jury was sent home for the evening at 6:44 pm. They deliberated the next day for more than two hours before returning the guilty verdict. In light of the length of the deliberations, the jury’s apparent focus on “abuse,” “harm,” and the expert testimony as to time of injury and manner and cause of death, including the medical testimony that the corporal punishment inflicted on this child led to her death only because of her undiagnosed sickle cell trait, and considering the “highly prejudicial” nature of the sticks, I am compelled to conclude that there is a reasonable probability that this improperly admitted evidence influenced the jury’s verdict. State v. Green, supra.I would therefore reverse.