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25176 - State v. Bray
State v. Bray


Shearouse Adv. Sh. No.
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court



The State, Petitioner



v.



Gary Douglas Bray, Respondent



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



Appeal From Dorchester County



Luke N. Brown, Jr., Special Circuit Court Judge



Opinion N. 25176

Heard April19, 2000- Filed July 31, 2000



AFFIRMED IN RESULT ONLY



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, Senior

Assistant Attorney General Norman Mark Rapoport,

all of Columbia, and Solicitor Walter M. Bailey, Jr.,

of Summerville for petitioner.



Peter F. Them, II, of Summerville, for respondent.



p.449


State v. Bray





JUSTICE WALLER: We granted a writ of certiorari to review the Court

of Appeals' opinion in State v. Bray, 335 S.C. 514, 517 S.E.2d 714 (Ct. App.

1999). We affirm in result only.







FACTS



The facts, as set forth in the Court of Appeals' opinion, are as follows:



Bray is the uncle of the alleged child victim in this case. The

child and her mother, who is Bray's sister, often spent weekends at

the child's maternal grandmother's home in 1995 and early 1996.

Bray lived in the grandmother's home.







The child, who was five at the time of the alleged abuse and seven

at the time of trial, testified that she often played with Bray in his

room when she stayed at her grandmother's house. The child's

mother stated her daughter loved to play with Bray in his room,

that they would often play until bedtime, that Bray's door would be

closed while they played, and that sometimes it would be locked.







The child testified that Bray touched her in a bad way. She

testified he touched her "pee pee" and her "bottom" with his finger

and his tongue, and Bray had her rub his "front private." She

stated she wet her hands in the bathroom adjoining Bray's bedroom

and would then rub his penis. She testified that "we had to keep on

doing it and doing it and doing it until this white stuff came out."

Afterward, she remembers Bray wiped the "white stuff" onto a

clean t-shirt.







Bray admitted owning three pornographic magazines. The child

testified he showed her the magazines, and she remembered seeing

"white stuff" on one woman's belly. Bray, on the other hand,

testified that the child was naturally inquisitive and would "go

through about anything she wanted to go through." One day he

entered his bedroom and found her looking at the magazines, which

he kept under his bed. He attempted to answer the child's

questions about the pictures, including a question about the "white

stuff," and hoped that would end the situation. He knew there

would be trouble if the child's grandmother discovered he had

pornographic magazines in the house.





p.450


State v. Bray





335 S.C. at ____, 517 S.E.2d at 716.







Prior to trial, the State moved to have the victim testify via closed-circuit

television (CCTV), out of the presence of Bray and the jury. After a hearing, the

trial court ruled this was a "classic case" of why S.C. Ann § 16-3-1550(E)(Supp.

1999)1 was passed and ordered the victim be permitted to testify via live closed

circuit television without Bray or other relatives (except her mother) present.

The Court of Appeals reversed.







ISSUE



Were the trial court's factual findings regarding the necessity for

the child to testify via CCTV supported by sufficient evidence?







DISCUSSION



The Court of Appeals ruled "the trial court's factual finding regarding the

necessity for the child to testify via CCTV was not supported by sufficient

evidence." 335 S.C. at ____, 517 S.E.2d at 717. We disagree.







A trial court's decision to allow videotaped or closed-circuit testimony is

reversible "only if it is shown that the trial judge abused his discretion in

making such a decision. . . " State v. Murrell, 302 S.C. 77, 82, 393 S.E.2d 919,

922 (1990). Where there is evidence to support a trial court's ruling, it will not

be overturned for an abuse of discretion. State v. Morgan 326 S.C. 503, 485

S.E.2d 112 (Ct. App. 1997).







In the present case, the expert testimony came from Kim Charpia who

was offered and qualified as an expert in the field of counseling services for




1 Section 16-3-1550(E) provides, "[t]he circuit or family court must treat

sensitively witnesses who are very young, elderly, handicapped, or who have

special needs by using closed or taped sessions when appropriate. The

prosecuting agency or defense attorney must notify the court when a victim or

witness deserves special consideration." This section was formerly codified at

S.C. Code Ann. § 16-3-1530(G) (1985).



p.451


State v. Bray









victims of child sexual abuse. 2 Charpia held a masters degree in social work,

and had worked for 8 years at Naval Family Services, during which time she

had seen a minimum of 25 cases per year of child victims of sexual abuse.

Although Charpia was not currently specializing in child sexual abuse, she felt

she could be considered an expert in that area by virtue of her training.

Charpia testified she saw the victim 8 times between April 22, 1996 and July

22, 1996 for symptoms of depression. The victim had also suffered nightmares,

and insisted upon wearing pants to school underneath her school uniform.

When asked whether, in her opinion, the victim would be able to testify in open

court in front of the defendant, Charpia replied:



I think in general it would be difficult for her to be in here with all

these adults .... But, I think in particular she would be facing her

uncle, a family member, and grandparents, and they have not

believed her statement. I think she will shut down and not talk at

all. I think she would be overwhelmed and intimidated and

probably unable to talk with anybody. (emphasis supplied).







When asked if the victim should testify in open court in front of the accused,

Charpia stated, "I think if she faces the accused, you may not get any

testimony." When asked if testifying in front of the accused would have a

positive or negative effect on the victim, Charpia responded, "[i]t would do

further negative emotional harm." Although Charpia's testimony was, in part,

based upon the impact to the victim by being required to testify in front of

family, it was also directed at the harm to victim by testifying in the presence

of Bray, and indicated that if forced to do so, the victim would be unable to

communicate.







Similarly, the victim's mother testified she did not feel the victim could

testify in court and that, if required to testify in front of her uncle Gary, "she's

not going to say anything in front of him because she loves him, even though




2 The Court of Appeals discounted Charpia's testimony, holding "[she]

was not an expert in child sexual abuse. . . " 517 S.E.2d at 719. On the

contrary, Charpia was in fact qualified as an expert in counseling victims of

child sexual abuse. As the issue of Charpia's qualification was not raised on

appeal, the Court of Appeals erred in re-weighing her qualifications and her

credibility. Cf. Summersell v. South Carolina Dep't of Public Safety, 337 S.C.

19, 522 S.E.2d 144 (1999) (it is error for appellate court to consider issue which

is not properly before it).



p.452


State v. Bray





she hates him for what he did to her." The mother also testified that she

believed the victim may have been intimidated by Bray, and was glad when her

mother told her Bray would not be there when she testified.







Given the above testimony demonstrating the victim would be

traumatized by testifying in Bray's presence, we disagree with the Court of

Appeals' conclusion that there was insufficient evidence to support use of CCTV.

See State v. Corn, 224 S.C. 77, 77 S.E.2d 354 (1953)(it is for trial court, not

appellate court to weigh evidence, subject to abuse of discretion standard of

review). 3







However, although we disagree with the Court of Appeals' assessment of

the evidence in this case, we nonetheless affirm in result due to the trial court's

failure to make the case-specific findings mandated by our opinion in Murrell,

supra, and the United States Supreme Court's opinion in Maryland v. Craig,

497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).







In Murrell, 302 S.C. at 81, 393 S.E.2d at 921, we adopted the following

procedure to be used by trial courts in attempting to protect child witnesses:



First, the trial judge must make a case-specific determination

of the need for videotaped testimony. In making this

determination, the trial court should consider the testimony of an

expert witness, parents or other relatives, other concerned and

relevant parties, and the child. (emphasis supplied). 4




3 Moreover, the Court of Appeals' distinctions of In re Cisco K, 332 S.C.

649, 506 S.E.2d 536 (Ct. App. 1998) and State v. Lopez, 360 S.C. 362, 412

S.E.2d 390 (1991) are tenuous, at best. When the facts of those cases are

thoroughly examined, it is patent that the showings of necessity there were no

greater than the present showing.







4 Contemporaneous with our decision in Murrell, the United States

Supreme Court in Maryland v. Craig, 497 U.S. 836, 856-7,110 S.Ct. 3157, 3169

70, 111 L.Ed.2d 666 (1990), stated:



[t]he requisite finding of necessity must of course be a

case-specific one: The trial court must hear evidence and

determine whether use of the one-way closed circuit television

procedure is necessary to protect the welfare of the particular child (4 continued...)



p.453


State v. Bray





Although conceding the trial court here "did not specifically state there

would be harm to the victim if she was required to testify in the presence of the

her uncle," the dissent nonetheless asserts the judge found a case-specific

necessity in this case, based upon the colloquy of the solicitor prior to the court's

ruling. We simply cannot conclude on the present record that this was the basis

of the trial court's ruling. The court stated:



I think this is probably a classic case of why that last part of

16-3-1530, I think, was passed. We've got a young child who

it's alleged has been molested at the age of five and who is

seven years of age now. We've got testimony from the mother

and the expert which shows that except for the mother, at least as

far as I know it right now, the rest of the family don't believe

her. And so I think that's classic. That would--to me would be a

classic situation as to why it would be passed. (emphasis added).







Although the dissent's assertion that the trial judge found the victim

would be harmed by testifying in the presence of her uncle is one reasonable

inference to be drawn, the emphasized language of the court's ruling is equally

susceptible of the inference that the trial court determined to utilize the CCTV

procedure based upon the victim's young age and fear of other family members

who did not believe her. The fact that this Court is unable to ascertain precisely

the basis of the trial court's ruling simply highlights the need for the case

specific findings mandated in Murrell. 5




(4 continued...) witness who seeks to testify .... The trial court must also find

that the child witness would be traumatized, not by the

courtroom generally, but by the presence of the defendant .

. . . the trial court must find that the emotional distress suffered by

the child witness in the presence of the defendant is more than de

minimis, i.e., more than mere nervousness or excitement or some

reluctance to testify. (emphasis supplied).







5 Moreover, the dissent contends the trial court's statement that "this is

probably a classic case" of why section 16-3-1550(E) was passed is simply a

shorthand way of saying, "I agree with you, Ms. Solicitor, and find based on the

testimony of her mother and expert witness . . . this victim would be

traumatized by testifying in front of the Defendant." It is not the statute, but

our opinion in Murrell which requires case-specific findings. If simple recitation

(5 continued....)



p.454


State v. Bray





As noted by Supreme Court in Craig ,



The trial court must also find that the child witness would be

traumatized, not by the courtroom generally, but by the presence

of the defendant .... Denial of face-to-face confrontation is not

needed to further the state interest in protecting the child witness

from trauma unless it is the presence of the defendant that causes

the trauma.



497 U.S. 836, 856-7, 110 S.Ct. 3157, 3169-70. Here, although there was

evidence indicating the victim was afraid of testifying in the presence of Bray,

there was also more generalized testimony concerning her fear of the courtroom

and her relatives. As the trial court failed to set forth case-specific findings

mandated by Murrell, the matter must be reversed and remanded for a new

trial. See State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994) (trial court's failure

to make case specific findings of fact supporting a decision constitutes an error

of law).







Finally, the Court of Appeals placed great emphasis upon the trial judge's

failure to personally interview the victim. In Murrell, this Court "suggested"

the trial judge interview the child witness in addition to receiving expert

testimony; we did not, however, mandate such a procedure. We decline to

impose upon trial courts a categorical prerequisite of a personal interview with

the child prior to employing alternative procedures. 6 As noted by the United

States Supreme Court in Craig, "[a]lthough we think such evidentiary

requirements could strengthen the grounds for use of protective measures, we

decline to establish . . . any such categorical evidentiary prerequisites for the

use of the one-way television procedure." 497 U.S. at 860, 110 S.Ct. at 3171.

(emphasis supplied). Similarly, the cases addressing the matter have

consistently held that expert testimony, standing alone, is sufficient to support

a finding of necessity. See State v. Lewis, 324 S.C. 539, 545, 478 S.E.2d 861,

864, n. 2 (Ct.App.1996) (listing cases which hold expert testimony is sufficient

evidence, by itself, to satisfy the federal statute and the Confrontation Clause).




(5 continued...) to the statute were sufficient, there would be no need for case-specific

determinations.







6 Notably, at oral argument before this Court, counsel for Bray advised

that he was not advocating a per se requirement of an interview with the child

prior to utilization of CCTV for child witnesses.



p.455


State v. Bray





Although we decline to adopt an absolute requirement, we reiterate our holding

in Murrell that the better practice in these cases, when possible, is for the trial

judge to personally interview the child witness prior to determining whether

use of CCTV is necessary.







CONCLUSION



We disagree with the Court of Appeals' assessment of the quantum of

evidence in this case. The fatal defect, in our opinion, lies not in the evidence

presented by the state, but in the trial court's failure to set forth case-specific

reasons for use of such a procedure in this case. We reiterate, for the benefit of

the trial judges of this state, that in order to support the decision to utilize

CCTV, case-specific findings must be set forth including references to testimony

demonstrating the child witness will in fact be traumatized, not merely by

testifying in a courtroom, or in front of a crowd of people or relatives, but by the

presence of the particular defendant.



AFFIRMED IN RESULT ONLY. 7





MOORE, BURNETT and PLEICONES, JJ., concur. TOAL, C.J.,

dissenting in a separate opinion.




7 We concur with the Court of Appeals' holding that given the paucity of

direct evidence in this case, the error cannot be deemed harmless.



p.456


State v. Bray





CHIEF JUSTICE TOAL: I respectfully dissent. In State v. Murrell, 302

S.C. 77, 393 S.E.2d 919 (1990), this Court held that "[a] decision as to whether

to utilize a videotape procedure is subject to reversal only if it is shown that the

trial judge abused his discretion in making such a decision or failed to follow the

appropriate procedure upon deciding that a witness was entitled to special

protection." Id. at 82, 393 S,E.2d at 922. In Murrell, we held that the trial

judge made sufficiently specific factual findings concerning the need for a

videotape procedure where he based his findings on the testimony of the family

and expert witnesses. "This testimony enabled the judge to conclude that

testimony by the victim in the defendant's presence would have a traumatic

effect on the child." Id. Similarly, in the instant matter, the trial judge based

his conclusion on the testimony of the victim's mother and Kim Charpia, an

expert in the field of sexual abuse. Both testified that the victim may be too

frightened to testify in the presence of her uncle.







The majority holds that a trial judge must verbalize the case-specific

reasons for the use of a videotape procedure pursuant to S.C. Code Ann. §16-3

1550(E)(Supp. 1999). The record reveals that the trial judge found a case

specific necessity in this case, even though he did not specifically state there

would be harm to the victim if she was required to testify in the presence of her

uncle. After arguments from both defense counsel and the solicitor concerning

the testimony of the mother and Kim Charpia and the need for a videotape

procedure, the trial judge concluded that a videotape procedure was necessary.

Specifically, the solicitor argued that the State satisfied the requirements of

section 16-3-1550(E) and State v. Murrell:



Solicitor: Your honor, I think we put up everything that we need

to put up to satisfy the statutory requirements to allow

this court to consider and order special consideration

for the seven-year-old child witness in this case.







The State v. Morrow [State v. Murrell] has set out in

South Carolina the procedure, and it says that you are

supposed to call expert witnesses and parents to testify

about why the child cannot and should not testify. And

two of - one each of those have been called and they've

both testified that in their opinion this child will not be

able to testify in front of the defendant and, further,

should not testify in front of the defendant. (emphasis

added).



p.457


State v. Bray





Court: Well, counselor, I think this is probably a classic case

of why that last part of 16-3-1530 [sic], I think, was

passed. We've got a young child who it's alleged has

been molested at the age of five and who is seven years

of age now. We've got testimony from the mother

about how this thing came about, and testimony from

the mother and the expert which shows that except for

the mother, at least as far as I know it right now, the

rest of the family don't believe her. And so I think

that's classic. That would - to me would be a classic

situation as to why it would be passed.







The trial judge did not specifically state that he decided to order a

videotape procedure because the victim would be traumatized by the presence

of the defendant, as the majority recommends. However, immediately prior to

the trial judge's decision, the solicitor references the testimony of the mother

and Charpia concerning the victim's ability to testify in front of her uncle.

Based on the solicitor's argument, the trial judge concluded that this was a

classic case as contemplated by section 16-3-1550(E) and ordered the videotape

procedure. The trial judge's terminology "this is probably a classic case" is

simply a shorthand way of saying, "I agree with you, Ms. Solicitor, and find

based on the testimony of her mother and expert witness Charpia, that this

victim would be traumatized by testifying in front of Defendant." The trial

judge's decision should not be overturned on a mere technicality when it is clear

from the record that he did not abuse his discretion, relied on the testimony of

family and experts, and complied with the Murrell requirements. Accordingly,

I would reverse the Court of Appeals' decision and affirm the decision of the

trial court.





p.458