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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

James Barney Warren, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Dorchester County

Luke N. Brown, Jr., Circuit Court Judge

Opinion No. 25160

Heard November 17, 1999 - Filed June 26, 2000

REVERSED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott and

Assistant Attorney General G. Robert Deloach, III,

all of Columbia; and Walter M. Bailey, Jr., of

Summerville, for petitioner.

Assistant Appellate Defender Robert M. Pachak, of

Office of Appellate Defense, of Columbia; and Francis

p.332

X. McCann, of Charleston, for respondent.

PER CURIAM: This case is before the Court on a writ of

certiorari to review the Court of Appeals' decision in State v. Warren, 330

S.C. 584, 500 S.E.2d 128 (Ct. App. 1998). We reverse.

Respondent was convicted of second degree criminal sexual

conduct with a minor, his stepdaughter Christy. During Christy's cross-

examination, respondent's counsel elicited the fact that respondent had also

allegedly sexually abused Christy's sister Brandy. When the State

attempted to exploit this information, respondent's objection was sustained

and a curative instruction was given. Never-the-less, respondent's counsel

continued to elicit information about Brandy's allegations, and the State

continued to exploit these opportunities and others. Respondent's counsel

objected to some, but not all, of the solicitor's questions. 1

At the close of the evidence, respondent's counsel asked for an

instruction telling the jury not to consider prior bad acts as proof of the crime

with which respondent was charged. The judge declined to give the charge,

and respondent appealed. The Court of Appeals addressed this issue by

reviewing numerous appellate decisions, some involving the use of prior bad

acts as impeachment evidence 2 and others where the prior bad act was

admitted under Lyle 3 as substantive proof that the defendant had committed

the crime charged. 4 The Court concluded the evidence of the alleged assault

on Brandy must have been admitted as substantive evidence under Lyle, and

therefore the limiting instruction should have been given pursuant to State

v. Timmons, 327 S.C. 48, 488 S.E.2d 323 (1997). We disagree.

The fundamental problem with this case is that the "bad act"

2 e.g., State v. Brown, 296 S.C. 191, 371 S.E.2d 523 (1988).

3 State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

4 e.g., State v. Nix, 288 S.C. 492, 343 S.E.2d 627 (Ct. App. 1986).

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evidence was not presented by the State as substantive evidence of guilt,

nor was it introduced by the State in an attempt to impeach respondent's

character. Instead, it was introduced largely through the questioning

conducted by respondent's attorney. While we appreciate the efforts of the

Court of Appeals to find an avenue affording respondent relief, it simply

cannot be done on this record. We express no opinion whether respondent

may be entitled to relief in a collateral proceeding. Accordingly, the opinion

of the Court of Appeals is

REVERSED.

p.334