              THE STATE OF SOUTH CAROLINA 

                   In The Supreme Court 


       The State, Respondent,

       v.

       Richard Burton Beekman, Petitioner.
        
       Appellate Case No. 2013-002002




    ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                    Appeal from Pickens County
              G. Edward Welmaker, Circuit Court Judge


                         Opinion No. 27623 

             Heard April 22, 2015 – Filed April 13, 2016 



                            AFFIRMED


       Appellate Defender Laura R. Baer and Carmen V.
       Ganjehsani, of Richardson Plowden & Robinson, P.A.,
       both of Columbia, and Dayne Phillips, of Lexington; all
       for Petitioner.

       Attorney General Alan M. Wilson and Assistant Attorney
       General Christina C. Bigelow, both of Columbia, for
       Respondent.



 
JUSTICE KITTREDGE: Petitioner Richard Burton Beekman was convicted of
committing first-degree criminal sexual conduct (CSC) with a minor on his stepson
(Stepson) and a lewd act upon a child on his stepdaughter (Stepdaughter). We
granted a writ of certiorari to review the court of appeals' decision affirming the
trial court's denial of Beekman's motion to sever the charges. We affirm.

                                                               I.

In June 2006, Beekman married Mother, who shared joint custody of Stepdaughter
and Stepson with her ex-husband. On July 7, 2008, Stepdaughter reported to
Mother that Beekman had sexually abused her. Mother took Stepdaughter to the
children's grandmother's house for the night, and she and Stepson moved there the
next day. At the grandmother's house, Stepson began acting out—scratching his
skin, banging his head, hyperventilating, and drawing pictures of Beekman dying.
Eventually, a cousin came over to talk to Stepson, and he disclosed to her that he
had also been sexually abused by Beekman.

Beekman was subsequently charged with committing CSC on Stepson and a lewd
act on Stepdaughter. The State sought to prosecute both indictments in a single
trial. Beekman moved to sever the two charges, arguing they did not arise from the
same chain of circumstances, would not be proved by the same evidence, and were
not of the same general nature. He further argued he would be substantially
prejudiced if the cases were tried jointly. The trial court denied the motion, finding
that the events arose out of the same chain of circumstances and there was a "great
overlap of evidence."

The case proceeded to trial. Stepdaughter testified that on the evening of July 6,
2008,1 she and Stepson slept on couches in the living room because their rooms
were messy. She stayed up watching the Disney Channel awhile, but eventually
fell asleep. She awoke later in the night to Beekman touching her "private area"
beneath her clothes. The television was still on and the news was playing.
Beekman was startled when Stepdaughter woke up, and he asked if she knew
where the remote was. She threw it at him, and he left the room. According to
Stepdaughter, she told Mother the next night about Beekman touching her, and
they immediately moved into her grandmother's house.
                                                            
1
    Stepdaughter was twelve years old at the time.


 
Stepson also testified that, on two separate occasions within an eight-month
period,2 Beekman touched Stepson's penis while they were watching the news
together. On both occasions, Beekman put his hands under Stepson's clothes and
touched Stepson's bare skin. Stepson further stated that Beekman anally penetrated
him on one occasion while Stepson was in Beekman's room watching the news.

After disclosing the abuse, Stepson was examined by Dr. Nancy Henderson, the
head of Greenville Hospital System's section on child abuse and neglect and a
physician board-certified in child abuse pediatrics. Dr. Henderson testified that
Stepson informed her he had been touched on his genitals and that "someone had
put his private part into [Stepson's] bottom." Although his rectal exam was normal
and did not uncover any signs of scars or tearing, Dr. Henderson noted that ninety
percent of children have normal exams even when there is a history of penetration.

The jury convicted Beekman of both crimes. He was sentenced to thirty years'
imprisonment for CSC and fifteen years' imprisonment for the lewd act, to be
served consecutively.

Beekman appealed arguing, in part, that the trial court erred in denying his motion
to sever the charges. The court of appeals affirmed. State v. Beekman, 405 S.C.
225, 746 S.E.2d 483 (Ct. App. 2013). We granted certiorari to review the court of
appeals' opinion.

Beekman argues the court of appeals erred in affirming the trial court's denial of
his motion to sever the charges because the crimes did not arise out of a single
chain of circumstances and were not provable by the same evidence. Further,
Beekman argues that trying the charges together unfairly prejudiced him because it
allowed the jury to consider evidence the State would have been prevented from
presenting in separate trials and likely created the impression in jurors' minds that
Beekman had a propensity to sexually abuse children. Therefore, according to
Beekman, this Court should reverse his convictions and remand his case for
separate trials. For the reasons discussed below, we disagree.




                                                            
2
    During this time, Stepson was eight years old.

 
                                        II. 


"Charges can be joined in the same indictment and tried together where they (1)
arise out of a single chain of circumstances, (2) are proved by the same evidence,
(3) are of the same general nature, and (4) no real right of the defendant has been
prejudiced." State v. Tucker, 324 S.C. 155, 164, 478 S.E.2d 260, 265 (1996)
(citing State v. Tate, 286 S.C. 462, 464, 334 S.E.2d 289, 290 (Ct. App. 1985)). "A
motion for severance is addressed to the trial court and should not be disturbed
unless an abuse of discretion is shown." Id. (citing State v. Anderson, 318 S.C.
395, 398, 458 S.E.2d 56, 57–58 (Ct. App. 1995)).

                                        III.

First, Beekman asserts the offenses did not arise from a single chain of
circumstances. We disagree and, like the court of appeals, reject Beekman's
"restrictive reading of the phrase 'a single chain of circumstances.'" Beekman, 405
S.C. at 231, 746 S.E.2d at 486. Instead, we agree with the court of appeals that
"the two charges against Beekman arose from, in substance, a single course of
conduct or connected transactions." Id.

In other cases, even though the charges did not arise out of a single, isolated
incident, this Court and the court of appeals have allowed joinder when the crimes
"involv[ed] connected transactions closely related in kind, place, and character."
State v. Cutro, 365 S.C. 366, 374, 618 S.E.2d 890, 894 (2005) (footnote and
citations omitted); see, e.g., id. at 373–75, 618 S.E.2d at 894–95 (finding no abuse
of discretion in denying a motion to sever charges involving multiple victims of
Shaken Baby Syndrome even though the charges stemmed from separate
occurrences); Tucker, 324 S.C. at 163–65, 478 S.E.2d at 264–65 (permitting
joinder of charges stemming from a multi-day crime spree that included a murder
and multiple break-ins); State v. McGaha, 404 S.C. 289, 291–99, 744 S.E.2d 602,
603–07 (Ct. App. 2013) (affirming, under facts almost identical to the present case,
joinder of CSC with a minor and lewd act upon a child charges arising from the
abuse of two sisters who were both abused by an individual in the same manner, in
the same place, and during the same time frame); State v. Jones, 325 S.C. 310,
314–16, 479 S.E.2d 517, 519–20 (Ct. App. 1996) (finding no abuse of discretion in
consolidating child sexual molestation charges, even though the charges concerned
two victims, when the offenses "were of the same general nature" and arose from
the same "pattern of sexual abuse"); see also City of Greenville v. Chapman, 210
S.C. 157, 161–62, 41 S.E.2d 865, 867 (1947) (explaining that courts should avoid

 
the "inflexible application" of the rule that charges must arise out of the same set of
circumstances to warrant joinder and noting that if "it does not appear that any real
right of the defendant has been jeopardized, [then] it would be a refinement not
demanded by the law or by justice to require in all instances a separate trial").

There can be no dispute that Beekman's molestation of his two stepchildren
"involv[ed] connected transactions closely related in kind, place, and character."
Cutro, 365 S.C. at 374, 618 S.E.2d at 894 (footnote omitted). Specifically,
Beekman's victims were siblings and the molestation occurred (1) at the same
place—the victims' home; (2) over the same period of time—the eight-month
period between November 2007 and July 2008; and (3) with the same modus
operandi—Beekman taking advantage of the children's habit of watching television
with him. Cf. Cutro, 365 S.C. at 374 n.4, 618 S.E.2d at 894 n.4 (finding joinder
proper where "the State produced evidence each offense involved the violent
shaking of an infant at the [defendant's] home daycare"). Therefore, the same level
of interconnectedness of crimes that was sufficient to permit joinder in Tucker,
Cutro, McGaha, and Jones is present here.

Beekman next argues that the molestation of each child was a distinct crime and
that the two charges are not supported by the same evidence. Of course they are
distinct crimes, but that in no manner diminishes the glaring similarities in
Beekman molesting both of his stepchildren in the same place, over the same time
period, and in a similar manner. Cf. Cutro, 365 S.C. at 369–75, 618 S.E.2d at 891–
95 (affirming the trial court's refusal to sever charges involving multiple victims
where the appellant was charged with two counts of homicide by child abuse and
one count of assault and battery, each of which involved incidents occurring at
different times with different children). Indeed, Beekman acknowledges that
testimony from many of the same witnesses would be used to prove both charges.

The fact that the State did not present the exact same testimony to prove the
molestation of each stepchild is not dispositive in considering whether joinder of
the charges was proper. Beekman advocates for a rule that strictly requires all
charges be proved by completely identical evidence, a requirement nowhere to be
found in our precedents requiring that the crimes be "proved by the same
evidence." See, e.g., Tucker, 324 S.C. at 164, 478 S.E.2d at 265 (citing Tate, 286
S.C. at 464, 334 S.E.2d at 290) (listing the joinder requirements).

For joinder of related offenses, our appellate courts have recognized that there may
be evidence that is relevant to one or more, but not all, of the charges. Tucker is
such an example. James Neil Tucker committed a murder and robbery; he

 
subsequently broke into a church and a mobile home while on the run from police.
Id. at 160–61, 478 S.E.2d at 263. This Court affirmed the denial of Tucker's
motion to sever the charges. Id. at 163–65, 478 S.E.2d at 264–65. By arguing that
the evidence of multiple crimes may not merely overlap but must be wholly
identical to warrant consolidation for trial, Beekman ignores the fact that the
evidence needed to prove Tucker committed the murder was necessarily different
than the evidence needed to prove Tucker broke into the church and mobile home.

                                        IV.

We affirm the court of appeals in finding no abuse of discretion in the joinder of
the charges, for the charges arose out of a single course of conduct, were of the
same general nature, and were proved by the same evidence. Further, joinder did
not prejudice any of Beekman's substantial rights. See Tucker, 324 S.C. at 164,
478 S.E.2d at 265 (citing Tate, 286 S.C. at 464, 334 S.E.2d at 290). The decision
of the court of appeals is affirmed.


AFFIRMED.

HEARN, J. and Acting Justice Jean H. Toal, concur. PLEICONES, C.J.,
dissenting in a separate opinion in which BEATTY, J., concurs.




 
CHIEF JUSTICE PLEICONES: I respectfully dissent. I would reverse the
Court of Appeals' decision to affirm the denial of Petitioner's motion to sever his
charges and remand for further proceedings.

"Charges can be joined in the same indictment and tried together where they (1)
arise out of a single chain of circumstances, (2) are proved by the same evidence,
(3) are of the same general nature, and (4) no real right of the defendant has been
prejudiced." State v. Tucker, 324 S.C. 155, 164, 478 S.E.2d 260, 265 (1996); State
v. Smith, 322 S.C. 107, 109, 470 S.E.2d 364, 365 (1996) ("Where the offenses
charged in separate indictments are of the same general nature involving connected
transactions closely related in kind, place and character, the trial judge has the
power, in his discretion, to order the indictments tried together if the defendant's
substantive rights would not be prejudiced."). In order for charges to be combined
in the same indictment and tried together, all four elements must be met. Tucker,
324 S.C. at 164, 478 S.E.2d at 265. As explained below, it is my view that the
charges did not arise out of a single chain of circumstances and are not provable by
the same evidence, and therefore, the Court of Appeals erred in affirming the
denial of Petitioner's motion for severance. State v. Cutro, 365 S.C. 366, 618
S.E.2d 890 (2005) (Pleicones, J., dissenting).

Petitioner was tried for one charge of criminal sexual conduct - first (CSC) of his
stepson and one charge of lewd act on a minor, his stepdaughter. Petitioner moved
to sever the charges, but his motion was denied by the trial court. The Court of
Appeals affirmed, finding Petitioner "embarked upon a series of actions aimed at
the sexual abuse of his two prepubescent stepchildren over the course of an eight
month period." The Court of Appeals found the facts that supported trying the
charges in the same trial where: each alleged incident of abuse occurred in the
family home; both victims are prepubescent siblings3; the alleged abuse began in a
similar manner by petitioner placing his hand on the unclothed genitalia of the
victims; the news playing on the television during both alleged incidents of abuse;
and the alleged incidents occurred during an eight month period.



                                                            
3
  Stepdaughter was twelve years old and stepson was eight years old at the time of
the alleged abuse.

 
As explained in Tucker, charges can be joined in the same indictment only when
all four elements warranting a combined trial are present. Id. In my view, the
charges do not arise out of a single chain of circumstances because there is no
nexus between the crimes. Compare State v. Middleton, 288 S.C. 21, 339 S.E.2d
692 (1986) (reversing the consolidation of charges of murder of one victim on June
9th, murder of a second victim in a similar manner on June 10th, and an attempted
robbery on June 11th because the crimes did not arise out of a single chain of
circumstances); with Tucker, 324 S.C. 155, 478 S.E.2d 260 (holding consolidation
of murder, kidnapping, armed robbery, possession of a weapon during a crime,
burglary, and larceny charges was proper because the crimes arose during a single
chain of circumstances when the burglaries were committed to avoid capture for
the crimes related to the murder). In my opinion, the trial court and the Court of
Appeals applied an exceedingly broad view of the single chain of circumstances
factor. While I recognize that similarities exist, such as the alleged abuse occurred
in the same home and the victims are siblings, the alleged lewd act on the
stepdaughter of touching her genitals while she was sleeping has no nexus to and
does not arise out of the same chain of circumstances as the alleged anal
penetration of stepson while watching television.

Additionally, the Court of Appeals erred by summarily concluding that each
charge is provable by the same evidence without an analysis of the evidence
advanced at trial. Although some testimony would be necessary to prove each
charge, such as the testimony of the victims' mother, in my view the evidence
necessary to prove each charge is different. For example, the State played a
forensic interview of stepson and presented testimony of the doctor that examined
stepson as evidence of the CSC charge, and this evidence is not relevant to the
alleged lewd act on stepdaughter.

Because all four elements required to join charges in the same trial are not present,
it is my opinion that the Court of Appeals erred in affirming the denial of
Petitioner's motion to sever. Accordingly, I would find the trial judge abused his
discretion in denying the motion to sever the charges, reverse the opinion of the
Court of Appeals, and remand for further proceedings.

BEATTY, J., concurs.



 
