The party attempting to introduce the prior conviction for impeachment purposes has the initial burden of establishing the basis for its admission. State v. Scriven, 339 S.C. 333, 340, 529 S.E.2d 71, 74 (Ct.App. 2000). Rule 609(a)(1) requires the trial judge to balance the probative value of the evidence for impeachment purposes against the prejudice to the accused.
Similarly, in State v. Scriven, this court was unable to determine whether the trial court “conducted a meaningful analysis to balance the impeachment value of these prior convictions, if any, against the prejudicial impact, as clearly required under Rule 609(a)(1).” 339 S.C. 333, 344, 529 S.E.2d 71, 76 (Ct.App.2000). Because the court was unable to ascertain whether the error was harmless, we remanded to the trial court with instructions to hold a hearing on the admissibility of the prior convictions and to carefully weigh the probative value of impeachment of the prior convictions against the prejudice to the defendant.
Similarly, in State v. Scriven, this court was unable to determine whether the trial court "conducted a meaningful analysis to balance the impeachment value of these prior convictions, if any, against the prejudicial impact, as clearly required under Rule 609(a)(1)." 339 S.C. 333, 344, 529 S.E.2d 71, 76 (Ct. App. 2000). Because the court was unable to ascertain whether the error was harmless, we remanded to the trial court with instructions to hold a hearing on the admissibility of the prior convictions and to carefully weigh the probative value of impeachment of the prior convictions against the prejudice to the defendant.
Because Broadnax's prior convictions were the identical charge as the offense in the present case, we cannot conclude Broadnax was not prejudiced by the admission of those prior convictions. See State v. Howard, 396 S.C. 173, 180–81, 720 S.E.2d 511, 515–16 (Ct.App.2011); see also Bryant, 369 S.C. at 517–18, 633 S.E.2d at 156 (holding that when a prior offense is similar to the charged offense the “danger of unfair prejudice to the defendant from impeachment by that prior offense weighs against its admission”); State v. Scriven, 339 S.C. 333, 343–44, 529 S.E.2d 71, 76–77 (Ct.App.2000) (holding that the prior convictions are “similar or identical to charged offenses, and the likelihood of a high degree of prejudice to the accused is inescapable”). Because we find the admission of Broadnax's prior armed robberies created such a high degree of prejudice in this case, we reverse and remand for a new trial.
See Statev. Bryant, 369 S.C. 511, 517-18, 633 S.E.2d 152, 156 (2006) (holding that when a prior offense is similar to the charged offense the "danger of unfair prejudice to the defendant from impeachment by that prior offense weighs against its admission."); State v. Scriven, 339 S.C. 333, 343, 529 S.E.2d 71, 76 (Ct.App. 2000) (holding that when prior convictions are "similar or identical to charged offenses . . . the likelihood of a high degree of prejudice to the accused is inescapable."). While the trial court articulated that Howard's prior convictions were probative of his credibility, the trial court provided no analysis of the prejudicial impact of admitting these prior convictions.
However, sentence enhancements for subsequent convictions of the same offense are not elements of an offense that must be affirmatively listed in an indictment. See State v. Scriven, 529 S.E.2d 71, 73 (S.C. Ct. App. 2000) ("Where a statute increases the punishment for a second or subsequent offense, the allegation that the offense charged in the indictment was of that character is unnecessary."). Therefore, the fact that Mattison was indicted and sentenced under different sentencing enhancement subsections of § 44-53-375 provides no basis upon which trial counsel could have objected to the indictment under state law because the sentencing enhancements are not elements of the PWID charge that must be included in the indictment.
However, under South Carolina law, a prior conviction is not an element of the drug distribution offense charged, but is merely a sentence enhancer. See State v. Scriven, 529 S.E.2d 71, 73 (S.C. Ct. App. 2000) (finding that § 44-53-370 "contains provisions for sentence enhancement upon conviction for a second or greater offense, [but] these provisions are not elements of the offense."); cf. Carter v. State, 495 S.E.2d 773, 777 (S.C. 1998) (Section 44-53-375 does not define a separate crime than § 44-53-370, but merely provides enhanced penalties for certain drugs; "the elements are exactly the same for an offense under both sections.").
Examining the record, we conclude the trial court did not conduct a meaningful analysis balancing the impeachment value of Robinson's prior convictions against their prejudicial effect. See State v. Scriven, 339 S.C. 333, 344, 529 S.E.2d 71, 76 (Ct. App. 2000) (stating the trial court must conduct "a meaningful analysis to balance the impeachment value of [a defendant's] prior convictions, if any, against the prejudicial impact, as clearly required under Rule 609(a)(1)[, SCRE]"). Although the trial court found Robinson's prior convictions were "within the statute" and ordered the State to refer to his 2009 second-degree burglary conviction as a "felony, " the trial court did not analyze the prejudicial impact of admitting his 2009 attempted robbery conviction and two 2007 Georgia convictions for breaking into an automobile with intent to commit a theft or felony.
Examining the record, we conclude the trial court did not conduct a meaningful analysis balancing the impeachment value of Robinson's prior convictions against their prejudicial effect. See State v. Scriven, 339 S.C. 333, 344, 529 S.E.2d 71, 76 (Ct. App. 2000) (stating the trial court must conduct "a meaningful analysis to balance the impeachment value of [a defendant's] prior convictions, if any, against the prejudicial impact, as clearly required under Rule 609(a)(1)[, SCRE]"). Although the trial court found Robinson's prior convictions were "within the statute" and ordered the State to refer to his 2009 second-degree burglary conviction as a "felony," the trial court did not analyze the prejudicial impact of admitting his 2009 attempted robbery conviction and two 2007 Georgia convictions for breaking into an automobile with intent to commit a theft or felony. See id. (stating if the trial court does not conduct a meaningful on-the-record balancing test, a decision to admit a defendant's prior convictions is an error of law resulting in an abuse of discretion).
Citing authority from other jurisdictions, Quiroz argues that a trial court should be required to make findings on the record that the probative value of a felony conviction admitted for purposes of impeachment substantially outweighs its prejudicial effect and that the trial court in this case failed to make such findings. See, e.g., United States v. Preston, 608 F2d 626 (5th Cir. 1979); State v. Scriven, 339 S.C. 333 ( 529 SE2d 71) (2000). OCGA § 24-9-84.