Preserving error at trial: Counsel's reference to character evidence not enough for Court of Appeals

In State v. Caldwell, the Court of Appeals considered a conviction under the state's peeping tom statute. An issue of error preservation came up regarding character evidence. Caldwell argued that the trial court erred in allowing testimony that he preferred to look at younger boys into evidence as such testimony is improper character evidence under Rule 404, SCRE, as well as the case of State v. Nelson, 331 S.C. 1, 501 S.E.2d 716 (1998). The Court held this issue was not preserved for appeal.

At trial defense counsel clearly objected to the evidence on the basis that any probative value was outweighed by the prejudicial effect. Counsel never mentioned either Rule 404 or the Nelson case. While he did quickly reference character when he argued that the State was attempting "to evoke strong emotion against somebody whose character may or may not be into evidence," the Court of Appeals averred that this argument "appears to have been made in conjunction with his assertion that the statement regarding his sexual orientation was inadmissible."

This is pretty nit-picking. Counsel objected and did reference character evidence in his objection. Certainly the law of SC is that a party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground." Seems like the defendant should have been give the benefit of the doubt on this one.