          THE STATE OF SOUTH CAROLINA
               In The Supreme Court

   The State, Respondent,

   v.

   Damyon Cotton, Petitioner.

   Appellate Case No. 2017-002402



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



               Appeal From Darlington County
            J. Michael Baxley, Circuit Court Judge


                     Opinion No. 27965
           Heard June 13, 2019 – Filed May 6, 2020


                         AFFIRMED


   Lesley A. Firestone, of Moore & Van Allen, PLLC, of
   Charleston; and Chief Appellate Defender Robert
   Michael Dudek and Appellate Defender Lara Mary
   Caudy, both of Columbia, for Petitioner.

   Attorney General Alan Wilson and Assistant Attorney
   General William M. Blitch Jr., both of Columbia; and
   Solicitor William B. Rogers Jr., of Bennettsville, for
   Respondent.
PER CURIAM: In a trio of cases, this Court has been asked to reconsider the
reach of the common scheme or plan exception to Rule 404(b), SCRE, particularly
as it pertains to criminal sexual conduct cases and our decision in State v. Wallace,
384 S.C. 428, 683 S.E.2d 275 (2009). Today, in the first of the three opinions, we
overrule Wallace and clarify the requirements to satisfy the common scheme or
plan exception. See State v. Perry, Op. No. 27963 (S.C. Sup. Ct. filed May 6,
2020) (Shearouse Adv. Sh. No. 18 at 12). In the second of the three opinions,
using the new Perry framework, we affirm a pastor's criminal sexual conduct
conviction in a case where the abuse of the victims was done in a method so
unusual as to be unique. See State v. Durant, Op. No. 27964 (S.C. Sup. Ct. filed
May 6, 2020) (Shearouse Adv. Sh. No. 18 at 64); see also State v. McClellan, 283
S.C. 389, 323 S.E.2d 772 (1984). Here, in the third of the three opinions, we
reconfirm the continued viability of the common scheme or plan exception.

In this case, Petitioner met a young woman (the victim) online, picked her up in his
car to take her on a date, and quickly became aggressive, forcing her to perform
oral sex on him in the car. He then drove to a secluded location in the woods,
threatened to shoot the victim, raped her outside the car, and drove her home.
Petitioner was indicted for kidnapping and criminal sexual conduct in the first
degree.

Over Petitioner's objections at trial, and pursuant to the common scheme or plan
exception to Rule 404(b), SCRE, the trial court admitted testimony from a second
victim (another young woman) who had suffered an essentially identical assault at
Petitioner's hands. According to the second victim, Petitioner met her online,
picked her up in his car to take her on a date, and quickly became aggressive,
hitting her and forcing her to perform oral sex on him in the car. He then drove to
a secluded location in the woods, raped the second victim outside the car, and
drove her home. Notably, during the assaults, both victims attempted to dissuade
Petitioner from raping them by offering excuses as to why intercourse with them
would be undesirable: one claimed she was menstruating, and the other claimed
she was already pregnant and had a sexually transmitted disease. In both cases,
Petitioner stated he did not care and would "fix that," putting on a condom and
continuing with the rape.
Petitioner was subsequently convicted of kidnapping and criminal sexual conduct
in the first degree, and the court of appeals affirmed those convictions. State v.
Cotton, Op. No. 2017-UP-356 (S.C. Ct. App. filed Sept. 6, 2017).

Using the new framework set forth in Perry, we find the admission of the second
victim's testimony satisfied the requirements of Rules 404(b) and 403, SCRE.
Because there was no abuse of discretion in the admission of the second victim's
testimony, we affirm Petitioner's convictions and sentence.

AFFIRMED.

BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.
