THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

John Brinson, Appellant.

Appeal From Beaufort County
�Perry M. Buckner, Circuit Court Judge

Unpublished Opinion No. 2004-UP-346
Heard February 11, 2004 � Filed May 25, 2004

AFFIRMED IN PART AND VACATED IN PART

Alysoun Meree Eversole, of Beaufort, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Sr., Assistant Attorney General Norman Mark Rapoport, all of Columbia;� and Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.

CURETON, A.J.:  John Brinson appeals his convictions for first-degree criminal sexual conduct (CSC), first-degree burglary, and kidnapping.� He asserts the circuit court erred in denying his motion for a mistrial.� He further contends the court lacked subject matter jurisdiction because the State improperly amended the indictments for first-degree burglary and first-degree CSC. [1] � We affirm in part and vacate in part.

FACTS

On December 2, 1999, the victim went to bed around midnight only to be awoken sometime later by someone jumping on her bed and on top of her.� Despite her attempts to fight him off, the assailant pinned her to the bed, choked her, threatened to kill her, and forced her to perform and receive oral sex. �This assault lasted several hours.� At some point, the assailant took a brief break to drink a beer from the victim�s refrigerator.� He also attempted to force her to drink a beer.� After this pause, the assault continued in much the same manner as it had before.� As sunrise approached, the assailant threatened to kill the victim if she told anything to the police about what had happened and left. Soon thereafter, the victim phoned 9-1-1 and the police were dispatched to her home.�

Throughout this prolonged assault, the house was very dark and the victim�s eyes were covered with blankets and pillows.� At no time did she get a good look at the perpetrator, but offered the police a very limited physical description.� She informed police that the assailant had a terrible speech impediment. �The victim had a few minor injuries and was taken to a local hospital, where a rape kit was performed.

Fingerprints were lifted from the two beer bottles and the headboard of the victim�s bed. �According to an investigating police officer, a suspect had been determined from the victim�s description and a fingerprint match was quickly made with a fingerprint card of the suspect available in the sex offender registry. �Brinson was subsequently arrested and indicted for first-degree burglary, first-degree CSC, and kidnapping.

At the outset of trial, the State moved to amend the indictments for first-degree burglary and first-degree CSC.� The State requested that the word �intercourse� be struck from the first-degree CSC indictment and the words �and the victim was the victim of kidnapping or burglary� be added.� The State also requested that the words �or another participant in the crime was armed with a deadly weapon or explosive� in the first-degree burglary indictment be replaced with, �entered or remained in the nighttime.� �The court allowed these handwritten amendments after Brinson�s attorney stated that he had no objections to the changes.

The State presented a great deal of evidence at trial incriminating Brinson.� The jury heard testimony concerning Brinson�s speech impediment, the palm and fingerprint matches, and a DNA sample taken from saliva found in the victim�s underwear that matched the DNA of Brinson. �

An investigating officer testified to the initial evidence that led to the arrest of Brinson as follows:

[ASSISTANT SOLICITOR:] What did you do with the hinge lift after you - - after you did that?

[OFFICER:] I kept it in my possession. A suspect had been developed through description.� I examined a fingerprint card that was in the sexual offender registry of that certain suspect.

Brinson�s counsel promptly moved for a mistrial based on the reference to the sex offender registry and the possible inference of a prior record. �Counsel further contended the error could not be cured with an instruction to the jury.� After a stern warning to the solicitor not to introduce any other references to any prior record of Brinson, the court denied the motion. �Brinson renewed his motion for a mistrial at the close of the State�s case.� Again denying the motion, the court stated:

[M]y recollection of the testimony was that the detective said he went to check the sex offender registry.� He never testified that the defendant was on the sex offender registry and . . . I felt it was proper for a law enforcement officer, where a sex crime had occurred, to check the sex offender registry.� I did not feel that any prejudice from that testimony had occurred to the defendant, tying the defendant�s prior record to that testimony, although I felt it was dangerous ground and warned the witness to be careful as to his testimony . . .

The jury convicted Brinson of all three charges.� Due to his prior record, the court sentenced Brinson under section 17-25-45 to three concurrent terms of life imprisonment without the possibility of parole.� S.C. Code Ann. � 17-25-45 (2003 & Supp. 2003) (outlining South Carolina�s two/three strikes law).� Brinson appeals.

DISCUSSION

I. �������� DENIAL OF MOTION FOR MISTRIAL

Brinson argues the circuit court erred in denying his motion for a mistrial.� He contends the officer�s testimony concerning the fingerprint match obtained from the sex offender registry card of �that certain suspect� was prejudicial to the degree of tainting the trial on all charges. [2] � We disagree.

The decision to grant or deny a mistrial is within the sound discretion of the trial judge; hence, we must only determine if this discretion was abused.� State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28 (2000); State v. Dawkins, 297 S.C. 386, 392, 377 S.E.2d 298, 301 (1989).� The grant of a mistrial is an extreme measure that should only be used when absolutely necessary.� Harris, 340 S.C. at 63, 530 S.E.2d at 628; State v. Council, 335 S.C. 1, 13, 515 S.E.2d 508, 514 (1999), cert. denied, 528 U.S. 1050 (1999); State v. Beckham, 334 S.C. 302, 310, 513 S.E.2d 606, 610 (1999).� In order to receive a mistrial, a defendant must show error and prejudice. Harris, 340 S.C. at 63, 530 S.E.2d at 628.

Here, the officer�s testimony strongly implies prior crimes committed by Brinson.� Evidence of a person�s character or trait of character is not admissible for the purpose of proving action in conformity therewith unless offered as rebuttal evidence.� See Rule 404(a), SCRE (Generally, �[e]vidence of a person�s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.�).� Furthermore, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the charged crime is in conformity with past behavior.� See Rule 404(b), SCRE (�Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.� It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.�).� Based on these rules, our appellate courts have held that the admittance of evidence merely implying the existence of prior crimes is error.� See State v. Tate, 288 S.C. 104, 105, 341 S.E.2d 380, 381 (1986) (holding admission of photographic lineup which included a �mug shot� of defendant constituted reversible error).�

Brinson contends the officer�s testimony concerning his fingerprint file in the sex offender�s registry so strongly implied a prior criminal record that a mistrial should have been granted.� We agree with Brinson that the admittance of the officer�s testimony without a curative instruction to the jury in this case was legal error.� We find, however, that this error was harmless.

No definite rule of law governs the finding that an error was harmless; rather the materiality and prejudicial character of the error must be determined from its relationship to the entire case.� State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990).� The decision whether or not to grant a mistrial for testimony that merely implies the existence of prior crimes often hinges on the degree of that implication.� Compare Council, 335 S.C. at 13, 515 S.E.2d at 514 (holding that a reference to a fingerprint card on file at the South Carolina Law Enforcement Division was too vague to constitute prejudice); State v. George, 323 S.C. 496, 511, 476 S.E.2d 903, 912 (1996), cert. denied, 520 U.S. 1123 (1997) (finding testimony of prior drug dealing to be merely suggestive and not prejudicial); State v. Thompson, 352 S.C. 552, 561, 575 S.E.2d 77, 82 (Ct. App. 2003) (finding an isolated reference to arrest warrants too vague to constitute reversible error); with Tate, 288 S.C. at 105, 341 S.E.2d at 381 (finding the admittance of mug shots of defendant to be a strong enough implication of a prior criminal record to constitute reversible error).

In our view, the trial court recognized that the implication of the officer�s testimony was fairly clear and these comments dangerously approached the threshold of reversible error.� We are also troubled by the similarity of the referenced prior bad acts to the charge of first-degree CSC. See State v. Brooks, 341 S.C. 57, 62, 533 S.E.2d 325, 328 (2000) (�When the prior bad acts are similar to the one for which the appellant is being tried, the danger of prejudice is enhanced.�).� When viewing this error from its relationship to the entire case, however, we find this implication harmless.� This determination is not due to the statement�s vagueness, but rather, in light of its probable weight when compared to the strength of the State�s case as a whole.�

An error is harmless when it could not have reasonably affected the result of the trial. State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985).� In cases where the evidence of guilt presented against an appellant, separate and apart from the evidence or testimony alleged to have been admitted in error, constitutes overwhelming and un-contradicted proof of guilt, a reviewing court may deem the error harmless if it believes beyond a reasonable doubt that the error did not contribute to the verdict.� Chapman v. California, 386 U.S. 18 (1967); Mitchell, 286 S.C. at 573, 336 S.E.2d at 151; State v. Watts, 321 S.C. 158, 165-66, 467 S.E.2d 272, 277 (Ct. App. 1996).

� Here, there is overwhelming evidence in the record from which the jury could have found Brinson guilty, notwithstanding the implication of a prior record.� Evidence was presented to the jury regarding a positive DNA match between Brinson and saliva found in the victim�s underwear.� Positive matches were made between Brinson�s finger and palm prints and multiple prints lifted from the victim�s home.� In light of these and other facts appearing in the record, we believe beyond a reasonable doubt that the testimony of the investigating officer concerning Brinson�s sex offender registry file did not contribute to the verdict. State v. Parker, 315 S.C. 230, 235, 433 S.E.2d 831, 833 (1993); Mitchell, 286 S.C. at 573, 336 S.E.2d at 151.� Thus, we find the denial of Brinson�s motion for a mistrial constituted harmless error.

II.������� SUBJECT MATTER JURISDICTION

Brinson argues the circuit court erred in permitting the State to amend the indictments for first-degree burglary and first-degree CSC.� He asserts the amendments were improper and, thus, deprived the court of subject matter jurisdiction as to those two charges.� We agree.

�A circuit court has subject matter jurisdiction if:� (1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the charge is a lesser included charge of the crime charged in the indictment.�� State v. Lynch, 344 S.C. 635, 639, 545 S.E.2d 511, 513 (2001).� An indictment is sufficient if it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he or she must be prepared to meet.� Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995); State v. Gill, 355 S.C. 234, 238, 584 S.E.2d 432, 434 (Ct. App. 2003).� Amendments to an indictment are allowed and do not deprive the court of subject matter jurisdiction if:� (1) they do not change the nature of the offense; (2) the charge is a lesser-included offense of the crime charged on the indictment; or (3) the defendant waives presentment to the grand jury and pleads guilty.� State v. Myers, 313 S.C. 391, 393, 438 S.E.2d 236, 237 (1993); see S.C. Code Ann. � 17-19-100 (2003) (stating an amendment to an indictment is permissible if the amendment does not change the nature of the offense charged).�

Because issues related to subject matter jurisdiction may be raised at any time, even for the first time on appeal, we must now decide whether or not the amendments to both the burglary and criminal sexual conduct charges changed the nature of each offense.� Browning, 320 S.C. at 368, 465 S.E.2d at 359 (stating issues relating to subject matter jurisdiction may be raised at any time).

A. First-Degree Burglary

At the outset of trial, the State altered the first-degree burglary indictment by removing the phrase �armed with a deadly weapon or explosive� and replacing it with �entered or remained in the nighttime.�� First-degree burglary is established by proving a burglary occurred with any one of several different enumerated aggravating circumstances.� S.C. Code Ann. � 16-11-311 (2003). [3] � The amendment in question removed one such aggravating circumstance and replaced it with another.

We find the Supreme Court decision of State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001), conclusive precedent on this issue.� In Lynch, a first-degree burglary indictment was amended in the same manner as the case before us.� The State moved to amend the indictment for first-degree burglary, requesting the words �in the hours during darkness� be replaced with �caused physical injury.�� The Court found that by changing the aggravating circumstances, the amendment to the indictment �substituted an entirely different offense for the one charged.� Id. at 640-41, 545 S.E.2d at 514.� The Court reasoned that the aggravating circumstance is the �essence� of first-degree burglary. Id. at 640, 545 S.E.2d at 614.� Furthermore, each aggravating circumstance is distinct from the others and requires proof that is materially different.� Id.

The Supreme Court further explained that a defendant charged with first-degree burglary by way of one aggravating circumstance is not prepared to meet and defend the same charge brought via a different aggravating circumstance.� Lynch, 344 S.C. at 641, 545 S.E.2d at 514.� The Court recognized the fact that the penalty for both is the same does not mean an amendment does not change the nature of the offense. Id. at 639, 545 S.E.2d at 514.� Based on this analysis, the Court vacated the conviction for first-degree burglary, finding the amendment deprived the circuit court of subject matter jurisdiction.� Id. at 639-41, 545 S.E.2d at 514.�

Here, Brinson was indicted for first-degree burglary under section 16-11-311(A)(1)(a), the aggravating circumstance involving a deadly weapon.� The amendment to the indictment deleted this aggravating circumstance and replaced it with an entirely different offense and code section, section 16-11-311(3), providing the defendant entered or remained in the nighttime.� In light of our Supreme Court�s decision in Lynch, we find the circuit court was deprived of subject matter jurisdiction.� As such, Brinson�s conviction for first-degree burglary is vacated.� See Brown v. State, 343 S.C. 342, 346, 540 S.E.2d 846, 849 (2001) (stating acts of a court with respect to a matter to which it has no subject matter jurisdiction are void).

B.� First-Degree Criminal Sexual Conduct

The amendment of the first-degree CSC charge was slightly different than that of the burglary charge.� Like first-degree burglary, first-degree CSC is defined as a base charge (criminal sexual battery) proven with any one or more of several aggravating circumstances. See S.C. Code Ann. � 16-3-652 (2003). [4] � Prior to trial, the State amended this indictment by adding the words �and the victim was the victim of kidnapping and burglary� to the indictment. Rather than substituting one aggravating circumstance for another, this amendment added another aggravating circumstance to a charge made a first-degree offense by the �use of aggravated force,� which was alleged in the indictment before and after the amendment.

For many of the same reasons set forth in the burglary analysis, we hold this amendment changed the nature of the offense and deprived the circuit court of subject matter jurisdiction over this charge.� We find that the aggravating circumstances of first-degree CSC, like first-degree burglary, are �the essence� of that crime. Lynch, 344 S.C. at 640, 545 S.E.2d at 514.� Each is distinct from the others and requires proof that is materially different.�

Our decision is based on Lynch and this Court�s recent holding in State v. Guthrie, 352 S.C. 103, 572 S.E.2d 309 (Ct. App. 2002).� In Guthrie, the defendant was indicted for first-degree burglary based on the aggravating circumstance of unlawfully entering a dwelling during the nighttime hours.� Prior to trial, the State moved to amend the indictment to include as an additional aggravating factor the defendant�s prior convictions for two or more burglaries.� Over the defendant�s objection, the court granted the amendment.� On appeal, the defendant argued the circuit court lacked subject matter jurisdiction because the amendment added an additional element of aggravation that was not presented to the grand jury.� This Court held the amendment deprived the circuit court of subject matter jurisdiction.� Id. at 111, 572 S.E.2d at 314.� We determined the amendment changed the nature of the offense charged, stating �[t]he two aggravating circumstances in the case sub judice are distinct from one another, and thus, the proof required for each aggravating circumstance is materially different from the other.�� Id.

At oral argument, the State asserted this case was distinguishable from Guthrie in that the statutes for first-degree CSC and first-degree burglary are decidedly different.� The State explained the amendment in this case only added another method of proof and did not provide for additional elements, whereas the amendment in Guthrie added another offense.� Because Brinson�s indictments for kidnapping and first-degree burglary had been presented to the grand jury, the State argued the addition of these offenses to the first-degree CSC indictment did not create a separate and entirely different offense.� As such, the State claimed the amendment to first-degree CSC did not divest the court of subject matter jurisdiction. [5] ��

We reject the State�s argument on several grounds.� First, this case is factually similar to Guthrie.� As in Guthrie, the original indictment in this case was correct in that the base offense and one aggravating circumstance were properly alleged and remained intact after the amendments.� Thus, applying the holding in Guthrie, we believe the amendment in the instant case divested the court of subject matter jurisdiction even though the original indictment properly conferred subject matter jurisdiction. [6] �� Secondly, we fail to discern the distinction made between the statutes for first-degree burglary and first-degree CSC.� A review of both charges indicates there is a base offense and proof of each offense requires the existence of one or more aggravating circumstances.� Thirdly, once added to the indictment, it is possible for the jury to ignore the initially charged circumstance and convict the defendant of a first-degree crime based solely on the added, non-indicted aggravating circumstance.� Although the amendment did not alter the general offense of first-degree CSC, it did affect the nature of the charge.� In this case, the nature of the charged offense was substantively changed and Brinson was not apprised of what he had to be prepared to answer.� Finally, the fact that Brinson was also indicted for kidnapping and burglary, and was thus not �surprised� by the amendment, is irrelevant.� As stated by our Supreme Court in Lynch:

[I]n testing the sufficiency of an indictment and the propriety of amending an indictment, it is improper to look to other indictments, even if those indictments relate to the same course of conduct.� A subject matter jurisdiction analysis is performed on individual charges, not the charges in the aggregate.� The appropriate analysis is whether the amendment to the indictment changed the nature of the offense charged, not whether the amendment in any way surprised or prejudiced appellant.

Lynch, 344 S.C. at 641, 545 S.E.2d at 514; see State v. Bryson, 357 S.C. 106, 114 n.6, 591 S.E.2d 637, 641 n.6 (Ct. App. 2003) (�[A]n amendment is substantive and thus not permitted unless the �same defense is available to the defendant both before and after the amendment and upon the same evidence.�� (quoting 41 Am. Jur. 2d Indictments and Informations � 168 (1995))).��

By permitting the improper amendment, the circuit court was divested of subject matter jurisdiction as to the charge of first-degree CSC.� As such, the conviction on this charge is vacated.

CONCLUSION

For the reasons set forth above, we find that Brinson�s kidnapping conviction and sentence of life imprisonment stand. The convictions for first-degree burglary and first-degree CSC, however, are vacated. [7] Accordingly, Brinson�s convictions are�

AFFIRMED IN PART AND VACATED IN PART.

HUFF, J., concurs and STILWELL, J., concurs in part and dissents in part in a separate opinion.

STILWELL, J. (concurring in part and dissenting in part): I concur in the majority opinion concerning the denial of a motion for mistrial and the subject matter jurisdiction relating to first degree burglary.� However, I disagree and therefore dissent from the majority�s opinion on subject matter jurisdiction on the criminal sexual conduct (CSC) charge.� The amendment relating to the CSC charge did not delete from the indictment the aggravating circumstance originally submitted to the grand jury, but only added an additional aggravating circumstance.� As noted, this is the identical factual situation presented in State v. Guthrie, 352 S.C. 103, 572 S.E.2d 309 (Ct. App. 2002).� I dissented in Guthrie and, in this case, adhere to the opinion expressed in that dissent.