The State of South Carolina v. Justin Ryan Cone

Pickens, South Carolina sexual abuse criminal defense lawyer represented the Defendant.

The victim's mother and father, Mr. and Mrs. Miller, testified Cone frequented the Miller home over the course of six to eight years and that a three-way and sometimes two-way sexual relationship developed between the couple and Cone. The evidence established the sex acts typically took place in either the living room or in the couple's bedroom and usually occurred when Cone and the Millers were drunk. The Miller home was small and none of the bedrooms had doors. The children's bedroom doorways were covered by sheets tacked to the door frames.



Mrs. Miller testified that shortly before Christmas of 2011, she witnessed the victim's younger sister rubbing the "private parts" of a toy doll. Mrs. Miller asked the child how she learned to do that, and the child told her she and the victim would do that to each other. Mrs. Miller testified she did not want to ruin Christmas for the family, so she decided to wait until after Christmas to ask the victim about her sister's revelation. On January 1, 2012, Mrs. Miller approached the victim, and the victim told her she had been sexually abused in her bedroom. At trial in 2014, the victim testified Cone sexually abused her in the home from the time she was four- or five-years old up to the time she told her mother at age nine. She testified the abuse consisted of her performing oral sex on Cone while she was naked and his pants were halfway down. There was no evidence to corroborate the victim's account.



During the charge conference, the trial court asked if the State was going to request an instruction on the "specific statute [section 16-3-657] that says it is not required that the victim's testimony be corroborated," and the solicitor responded he wanted the instruction given, and he stated he planned to refer to the statute during closing argument. Defense counsel objected to the instruction as an improper comment by the trial court on the facts. The trial court decided not to instruct the jury on section 16-3-657, opting instead for the customary general instruction to the jury that it "may



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believe one witness against many or many against one." The trial court also ruled the State could argue the statute to the jury because, the court stated, "It's the law." Following this ruling, the State asked permission to "open on the law"[1] and to quote section 16-3-657. Defense counsel stated:



I don't object to him opening on the law. I would ask-I believe he should only open on the law as to the charge against Mr. Cone. So, I would object to him opening on that point of the law. I do respect the court's ruling that either of us can argue it, and he can argue that. But I don't think that opening on the law is proper for anything other than the charge against Mr. Cone.



The trial court ruled, "If you wish to open and you wish to discuss the law, I'll let you do it." The State then informed the trial court he planned to "say something along the lines of, and if this is an incorrect or misstatement of the law, His Honor will correct it with his jury charge." The trial court approved this statement. Defense counsel then raised an additional objection:



I don't want to waive this just purely for appellate purposes. I do object to him referencing that in his opening on the law for the reasons I've stated. And as long as you say the records are protected, I'm not going to object during his actual opening statement.



Before the jury was brought back into the courtroom, the State informed the trial court, "I've decided I'm not going to open on the law." Cone then presented the first closing argument, during which his counsel stated,



What it comes back to is we've got not one piece, not one shred of independent corroboration of any type . . . . And

there are lots of different types out there that could be brought before you and they haven't been. The law doesn't require it. But it would be a huge concern for me with the stakes as high as they are.



In his closing argument, the solicitor stated:



Now, there's another section in our law, section 16-3-657, criminal sexual conduct, testimony of a victim need not be corroborated. "The testimony of the victim need not be corroborated in prosecutions under Section 16-3-652 to 658," which are the sections governing criminal sexual conduct. And I've said this before and I'll say it again, if anything I've misstated, His Honor will correct me. If I've said something wrong about the law, His Honor will correct me. But if I'm not mistaken, he will make plain to you that you can believe one person over many. You can put whatever weight on any piece of testimony you want to put. That's your prerogative. That's what you're permitted to do as jurors. And that's what we expect you to do.



Following closing arguments, the trial court instructed the jury:



You alone judge the credibility of the witnesses. In other words, whether or not a witness's testimony is believable. In that regard, you may believe all that a witness said or none of it. You may believe part of what a witness said and not believe the balance. You may believe one witness against many or many against one. You may consider any interest, bias, or prejudice that you feel that a witness has in the case. You may consider the demeanor and the opportunity for knowledge and the appearance that the witness had. You may consider the lack of evidence presented by the State. But you're not to exercise these considerations arbitrarily.

Defendant was found guilty.



Affirmed on appeal.