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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State,

Respondent,

v.

Roy Beck, Jr.,

Appellant

Appeal From Richland County

Thomas W. Cooper, Jr., Circuit Court Judge

Opinion No. 25190

Heard June 20, 2000 - Filed August 21, 2000

AFFIRMED

Joseph L. Savitz, III, Deputy Attorney, and Melody J. Brown, Assistant

Appellate Defender, both of the Office of Appellate Defense of Columbia, for

appellant.

Charles M. Condon, Attorney General; John W. McIntosh, Chief Deputy

Attorney General; Donald J. Zelenka, Assistant Deputy Attorney General; G.

Robert Deloach, III, Assistant Attorney General and Warren B. Giese,

Solicitor all of Columbia, for respondent.

JUSTICE PLEICONES: Appellant was convicted of murder and

received a life sentence. He appeals, arguing the circuit court erred in

admitting evidence of a prior bad act and of a statement he had made several

months before this murder. We affirm.

p.536

ISSUES

Did the trial judge err in admitting evidence that the appellant had

assaulted and robbed an escort service employee two days prior to the

murder for which he was on trial?

Did the trial judge err in admitting the appellant's statement, uttered

some four months prior to this crime, that he planned to rob escort

service employees?

FACTS

On November 13, 1996, the body of Virginia Russell (Victim) was

discovered lying in the road near Owens Field in Columbia. An autopsy

revealed that she had been shot three times in the head with a .380 caliber

pistol, between 9:00 p.m. and 12:00 a.m. the preceding night.

Two purses were discovered by Victim's body, one of which contained

$2.00 in change. Testimony of family members established that both of the

purses belonged to Victim, and further indicated that she had had several

hundred dollars with her on the night of her death.

Victim's family members also testified that Victim had worked for an

escort service, and that she had received a page around 8:30 p.m. on the night

of her death. Phone records established that in fact Victim was paged at 8:54

p.m. on November 12, 1996, by someone calling from a phone at the

apartment of Richard Bullard (Bullard). Victim was heard mentioning

"Jaco's," which is a bar in the Olympia area of Columbia, when she returned

the page.

Roy Beck, Jr. (Appellant) was living with Bullard and Trevett Foster

(Foster) at the time of the murder, since the power had been disconnected at

his own apartment on Whitney Street in Olympia. He was previously

acquainted with Victim.

During a consensual search of Bullard's apartment after the murder,

police officers found a knife 1 and a .380 caliber pistol belonging to Bullard.

found in Bullard's apartment was the weapon used by Appellant to assault (1 continued...)

p.537

Later tests determined that the gun was the murder weapon. Bullard also

gave the police a pair of his black military-style boots which Appellant often

borrowed. The boots had Victim's blood on them.

Appellant was charged with the murder of Victim. 2 During the trial,

the judge allowed testimony that Appellant had assaulted and robbed another

escort service employee (Employee) two days prior to the murder. 3 The trial

judge, relying upon Rule 404(b), SCRE and State v. Lyle, 125 S.C. 406, 118

S.E. 803 (1923), held that the evidence was probative of identity and motive.

The trial judge also ruled that the assault and robbery of Employee formed

part of the res gestae of the murder.

The trial judge also allowed in evidence a statement made by Appellant

to Larry Barlow (Barlow) four months prior to the murder, to the effect that

Appellant planned to call escort services for dates and then rob and have sex

with the escort service employees.

DISCUSSION

I. The Statement to Barlow.

Barlow testified that Appellant had asked him on July 10, 1996, to

participate in a plan to call escort services for dates and then rob and have

sex with the employees. Barlow claimed that he had never participated in the

plan, and that he had told Appellant that "it was a crazy idea."

Appellant argues that the statement should riot have been admitted

under Lyle. We agree, because Lyle concerns bad acts and other crimes of a

defendant, not statements of intent to commit crimes. See State v. Lyle,

supra; United States v. Masters, 622 F.2d 83 (4th Cir. 1980).

Appellant's statement to Barlow is, however, admissible upon other

2 Bullard and Foster had alibis for the night of the murder.

3 Employee also alleged that she had been raped by Appellant, but was

not allowed to testify concerning this matter in the presence of the jury.

p.538

grounds. 4 "As a general rule, statements or declarations made by one accused

of a crime are admissible against him." State v. Ply, 275 S.C. 291, 270

S.E.2d 126 (1980). Of course, such evidence must meet the threshold test of

admissibility, i.e., relevance. See Rule 401, SCRE (" `Relevant evidence'

means 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").

In this prosecution, the state relied upon circumstantial, yet

nonetheless compelling, evidence of guilt. There was, for example, no direct

evidence placing Appellant at the scene. 5 Testimony that Appellant had

made a statement of his intent to perpetrate such crimes - albeit four months

prior to this event - was highly probative as to a manifestation of that intent

through the fatal attack upon Victim. It thus bore directly on Appellant's

identity as the killer as well as on the establishment of a financial motive. 6

Moreover, the probative value of Barlow's testimony far outweighed any

possibility of undue prejudicial effect. See Rule 403, SCRE.

The temporal attenuation between the making of this statement and

the crime in this case is of no moment in assessing its admissibility. The four

month lapse is at most a matter bearing on the weight of the evidence, which

was for the jury to determine. State v. Glenn, 328 S.C. 300, 492 S.E.2d 393

(Ct. App. 1997).

Appellant was not prejudiced by the erroneous admission of his

statement to Barlow as a Lyle exception, as it was otherwise admissible as

discussed herein.

II. The Employee Robbery.

Appellant next argues that evidence of the assault and robbery of

Employee was not admissible under Lyle or res gestae. We disagree in part,

406, 526 S.E.2d. 716 (2000) (appellate court may affirm a ruling of a lower

court upon any grounds appearing in the record on appeal).

5 A human hair, the source of which was established by forensic

testimony to be Appellant's, was, however, found on Victim's skirt.

6 See Rule 801(d)(2)(A), SCRE (admission of a party-opponent).

p.539

and find that the evidence was properly admitted under Lyle's identity

exception:

Evidence of other crimes or bad acts is inadmissible to prove the bad

character of the defendant or that he acted in conformity therewith. Such

evidence is admissible, however, when it, tends to establish motive, identity, a

common scheme or plan, the absence of mistake or accident, or intent. See

Rule 404(b), SCRE; State v. Lyle, supra. In addition, the "bad act" must

logically relate to the crime with which the defendant has been charged. If

the defendant was not convicted of the prior crime, evidence of the prior bad

act must be clear and convincing. State v. Kennedy, 339 S.C. 243, 528 S.E.2d

700 (Ct. App. 2000). Finally, even if the evidence meets the above criteria,

the trial judge must exclude it if its probative value is substantially

outweighed by the danger of unfair prejudice to the defendant. Id: at 19;

Rule 403, SCRE.

Employee testified that she received a call through her escort service at

4:00 a.m. on November 10, 1996. The customer did not identify himself, but

gave his address as an apartment on Whitney Street in the Olympia area of

Columbia. Police officers later found that the apartment belonged to

Appellant. After her arrival, Employee entered the apartment and a man

wearing black, military-style boots held a knife to her throat. When she

asked if he had a gun, the man "smirked" and said, "Don't make me use it."

The man took $300.00 from Employee's purse before releasing her. She later

identified Appellant as the robber, and the knife found in Bullard's apartment

as the weapon used during the assault.

Employee's testimony was admissible to prove the identity of the

appellant as the perpetrator of Victim's murder. Employee testified that

Appellant wore black military-style boots when he assaulted and robbed her.

A pair of boots matching that description and covered with Victim's blood

were given to the police by Bullard, Appellant's roommate. In addition,

Employee identified a knife belonging to Bullard as the one with which

Appellant had threatened her. The gun used to shoot Victim was also owned

by Bullard. Both weapons were easily accessible to Appellant, and Bullard

testified that Appellant had borrowed the gun before the murder.

Employee's testimony is admissible to identify Appellant as Victim's

murderer because both perpetrators committed similar offenses within a

relatively short period of time, using weapons belonging to Bullard and

wearing his boots. See State v. Forney, 321 S.C. 353, 468 S.E.2d 641(1996)

p.540

(evidence that defendant was the gunman in an earlier robbery was

admissible to prove that he, not his co-defendant, shot a police officer).

Appellant claims that even if evidence of the assault and robbery of

Employee is admissible under Lyle, it is unduly prejudicial. We disagree.

After conducting a Lyle analysis and finding evidence both relevant and

admissible as a prior bad act, the trial court must conduct a Rule 403, SCRE

analysis to determine whether or not the evidence is unduly prejudicial. We

find that evidence of the assault and robbery, although certainly prejudicial

to Appellant, is not unduly so under our previous decisions. 7 Moreover, as

conceded in Appellant's brief to this Court: "The person who killed call girl

Virginia Russell the night of November 12, 1996, used Richard Bullard's gun

and was probably wearing his boots." The evidence of the crimes committed

against Employee is both clear and convincing and logically relevant to the

murder charge.

Since evidence of the assault and robbery of Employee is clearly

appropriate to prove identity, we need not conduct a more extensive analysis

regarding motive or common scheme or plan. 8

Appellant also argues that evidence of Employee's assault and robbery

should not be admissible as part of the res gestae of the murder. We agree the

crimes were not part of the same criminal episode, since the murder occurred

nearly two days after the assault and robbery of Employee. Further, the

crimes are not so intertwined that one cannot be proven without mention of

the other. See United States v. Masters; 622 F.2d 83 (4th Cir. 1980); State v.

Smith, 309 S.C. 442, 424 S.E.2d 496 (1992).

While we thus agree with Appellant that evidence of the assault and

robbery of Employee is not admissible as res gestae, we hold that Appellant

suffered no prejudice as it was properly admitted to prove the identity of

2000)(Shearouse Adv. Sh. No. 28 at 5); State v. Smith, 337 S.C. 27, 522 S.E.2d

598 (1999); State v. Kornahrens, 290 S.C. 281, 350 S.E.2d. 180 (1986).

8 Although the trial judge did not admit Employee's testimony for the

purpose of a common scheme or plan, the State was allowed to make this

argument on appeal. Rule 220(c), SCACR; I'On. L.L.C. v. Town of Mt.

Pleasant, supra.

p.541

Victim's murderer. See State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995)

(error without prejudice does not warrant reversal).

CONCLUSION

Based on the foregoing discussion, the decision of the Court of Appeals

is AFFIRMED.

TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.

p.542