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.

Stoney Burrows,        Appellant.

Appeal From Williamsburg County
Howard P. King, Circuit Court Judge

Unpublished Opinion No. 2004-UP-222
Submitted January 29, 2004 – Filed March 30, 2004

REVERSED

Deputy Chief Attorney Robert M. Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Special Assistant Attorney Amie L. Clifford, all of Columbia; and Solicitor C. Kelly Jackson, of Sumter, for Respondent.

PER CURIAM: Stoney Burrows was indicted for assault and battery with intent to kill (“ABWIK”).  He was convicted of the lesser-included offense of assault and battery of a high and aggravated nature (“ABHAN”).  Burrows was sentenced to ten years imprisonment, suspended on the service of six years imprisonment and three years probation.  Burrows appeals, arguing the circuit court erred by admitting his prior conviction for ABWIK.  We reverse.

FACTUAL/PROCEDURAL BACKGROUND

Burrows was indicted for ABWIK.  At trial, the State’s case consisted of the testimony of one witness, Steven Hemingway.  Hemingway testified that on the night of the altercation, Burrows instigated the fight inside the bar.  Hemingway testified that once he was outside the bar Burrows ran into him with a vehicle before hitting him repeatedly with a two-by-four board.

Hemingway admitted that he had been drinking the night the altercation took place.  He also testified he had been displeased with Burrows over an incident that happened at his house two weeks prior to the altercation.

On cross-examination, Burrows elicited testimony that Hemingway was the larger of the two men, weighing at least fifty pounds more than Burrows.

Prior to Burrows taking the stand, the State sought to admit several of Burrows’ prior convictions for impeachment purposes.  Burrows objected to the admission of his conviction for ABWIK.  The circuit court allowed the conviction into evidence for impeachment purposes, stating that because Burrows was physically smaller than the victim in the prior conviction it was probative of the issue of relative size raised in this case.

Burrows testified Hemingway began the altercation inside the bar, hitting Burrows across the face with the board.  Burrows explained he attempted to leave in his vehicle but Hemingway swung the board through his window and broke his mirror.  Burrows testified he did not start the vehicle during the altercation so he could not have hit Hemingway with the vehicle.

During cross-examination, the State established that Burrows had been convicted of ABWIK on a previous occasion and that he had been smaller than the victim in that case.

Burrows was convicted of the lesser-included offense of ABHAN.  Burrows was sentenced to ten years imprisonment, suspended on the service of six years imprisonment and three years probation.  Burrows appeals.

STANDARD OF REVIEW

Admission of evidence falls within the circuit court’s discretion and will not be disturbed on appeal absent abuse of that discretion. State v. Shuler, 353 S.C. 176, 184, 577 S.E.2d 438, 442 (2003).  “An abuse of discretion occurs when the trial court’s ruling is based on an error of law.” State v. Foster, 354 S.C. 614, 621, 582 S.E.2d 426, 429 (2003).

DISCUSSION

Burrows argues the circuit court erred by admitting his prior conviction of ABWIK for impeachment purposes because the circuit court failed to correctly apply the factors in State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000).  We agree.

Rule 609(a)(1), SCRE, requires the circuit court to balance the probative value of the evidence for impeachment purposes against the prejudice to the accused.

In determining whether the probative value of a prior conviction outweighs its prejudicial effect, a circuit court should consider the following factors: “1. [t]he impeachment value of the prior crime; 2. [t]he point in time of the conviction and the witness’s subsequent history; 3. [t]he similarity between the past crime and the charged crime; 4. [t]he importance of the defendant’s testimony; 5. [t]he centrality of the credibility issue.” Colf, 337 S.C. at 627, 525 S.E.2d at 248; State v. Martin, 347 S.C. 522, 530, 556 S.E.2d 706, 710 (Ct. App. 2001) (“[T]his court has implicitly recognized the value of these [Colf] factors in making such a determination under Rule 609(a)(1).”).

The State sought to admit Burrows’ prior conviction for ABWIK, arguing “it would indicate to the jury that this defendant is not only capable but willing . . . [to commit] a crime of this nature . . . [and it] would clearly indicate to the jury that [the disparity in] size isn’t necessarily a factor here given that the defendant is predisposed to such crimes.”  Burrows argued that the reasons given by the State were the precise reasons the conviction should not be admitted.  The circuit court found the conviction was admissible because the conviction was for an assault of a person of larger stature than Burrows, and the disparity in size between Burrows and Hemingway had been raised in this case.

“[W]hen the prior offense is similar to the offense for which the defendant is on trial, the danger of unfair prejudice to the defendant from impeachment by that prior offense weighs against its admission.”  State v. Dunlap, 353 S.C. 539, 542, 579 S.E.2d 318, 320 (2003).  A prior conviction is inadmissible to show the defendant “acted in conformity with his prior convictions.”  State v. Cheatham, 349 S.C. 101, 108-09, 561 S.E.2d 618, 622 (Ct. App. 2002).

In making its determination, the circuit court failed to correctly apply the Colf factors.  The circuit court’s ruling was based on one of the Colf factors, “[t]he similarity between the past crime and the crime charged.” Colf, 337 S.C. at 627, 525 S.E.2d at 248.  However, instead of displaying concern about the similarity between the prior conviction and the alleged crime, the circuit court made this similarity the basis for its decision.  Specifically, the circuit court found the conviction was admissible for the purpose of establishing Burrows’ propensity to attack victims larger than himself. We hold this was error. Id. at 628, 525 S.E.2d at 249 (“The trial judge here erred in treating the prior crimes as if their similarity heightened their probative value when it actually increased their prejudicial effect.”).

Further, the error was not harmless because the competent evidence put forth to convict Burrows did not conclusively prove his guilt.  State v. Livingstone, 282 S.C. 1, 6, 317 S.E.2d 129, 132 (1984) (“[W]here guilt is conclusively proven by competent evidence and no rational conclusion can be reached other than the accused is guilty, a conviction will not be set aside because of insubstantial errors not affecting the result.”).  Hemingway was the only witness to testify for the State.  He admitted to having two or three beers on the night of the altercation and to being displeased with Burrows over an incident that happened at Hemingway’s house two weeks prior to the altercation.  Hemingway testified Burrows instigated the fight inside the bar.  He testified that once he was outside the bar Burrows ran into him with a vehicle and hit him with the board.  However, Burrows testified Hemingway began the fight.  Burrows testified he did not drive into Hemingway with his vehicle and he only hit Hemingway in response to Hemingway’s physically aggressive behavior.  The State did not call the owner of the bar, a person who could have testified as to who started the altercation.  The State also chose not to call an individual who helped break up the fight, a person who could have testified as to whether Hemingway had been hit by a vehicle.

Under these circumstances, we cannot hold beyond a reasonable doubt that the affirmative answer to the State’s question regarding Burrows’ prior conviction for ABWIK, the same crime for which he was accused in this trial, did not irreparably damage Burrows’ credibility in each juror’s mind. Because the circuit court erred by allowing the prior conviction for ABWIK to be use for impeachment purposes, and Burrows was prejudiced by that error, we reverse. State v. Harvey, 275 S.C. 225, 227, 268 S.E.2d 587, 588 (1980) (holding prejudicial error is grounds for reversal).

CONCLUSION

For the foregoing reasons, Burrows’ conviction is

REVERSED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concurring.