THE STATE OF SOUTH CAROLINA In The Supreme Court The State, Respondent/Petitioner, v. Venancio Diaz Perez, Petitioner/Respondent. Appellate Case No. 2015-001576 ON WRIT OF CERTIORARI TO THE COURT OF APPEALS Appeal from Charleston County J. C. Nicholson, Jr., Circuit Court Judge Opinion No. 27810 Heard November 30, 2016 – Filed June 6, 2018 REVERSED Jason S. Luck, of Seibels Law Firm, P.A., of Charleston, and Chief Appellate Defender Robert M. Dudek, of Columbia, for Petitioner/Respondent. Attorney General Alan M. Wilson and Special Assistant Attorney General Amie L. Clifford, both of Columbia, and Solicitor Scarlett A. Wilson, of Charleston, for Respondent/Petitioner. CHIEF JUSTICE BEATTY: We granted cross-petitions for a writ of certiorari to review the Court of Appeals' unpublished decision in State v. Perez, Op. No. 2015-UP-217 (S.C. Ct. App. filed May 8, 2015), wherein the court determined: (1) the trial court's refusal to admit testimony of a witness' U-visa1 application was harmless error; (2) the trial court properly admitted evidence of prior bad acts Venancio Diaz Perez committed against another minor; and (3) Perez's sentence was vindictive and a violation of due process. We reverse the Court of Appeals' decision and remand for a new trial. I. Factual and Procedural History Perez was indicted on charges of criminal sexual conduct with a minor and lewd act on a minor for acts committed on a child ("Minor 1") whom his wife babysat in their residence. Prior to trial, the judge held an in camera hearing to determine whether to allow another child ("Minor 2"), who Perez's wife also babysat, to testify at trial regarding acts of sexual abuse Perez allegedly committed against Minor 2. After hearing testimony from both children, the trial court decided to allow Minor 2 to testify pursuant to State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009).2 At trial, Minor 1 testified to six incidents involving Perez. Minor 1 described two similar incidents wherein she went into one of the bedrooms to retrieve her PlayStation Portable at which time Perez grabbed her, pulled her into the closet, and began touching her. In the first incident, Minor 1 alleged Perez "put his hands under [her] clothes and stuck his finger inside of [her]." In the second, Minor 1 stated 1 A U-visa allows victims of certain crimes, who have suffered mental or physical abuse and are helpful to the government in the investigation or prosecution of the criminal activity, to be lawfully present in the United States. 8 C.F.R. § 214.14 (2017); Department of Homeland Security, Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human- trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims- criminal-activity-u-nonimmigrant-status (last updated August 25, 2017). 2 In Wallace, this Court held relevant evidence of a defendant's prior bad act that is more probative than prejudicial may be admitted to show a common scheme or plan under Rule 404 of the South Carolina Rules of Evidence ("SCRE") when the similarities between the crime charged and prior bad act outweigh the dissimilarities. Wallace, 384 S.C. at 433, 683 S.E.2d at 278. Perez touched ...
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