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2007-UP-453 - State v. McCall

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.

Robert Duncan McCall, Appellant.


Appeal From Greenville County
 C. Victor Pyle, Jr., Circuit Court Judge


Unpublished Opinion No. 2007-UP-453
Submitted October 1, 2007 – Filed October 10, 2007


AFFIRMED


J. Falkner  Wilkes, of Greenville; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General David A. Spencer, of Columbia; Robert M. Ariail, of Greenville; for Respondent.

PER CURIAM:  Robert Duncan McCall appeals his convictions for the offenses of criminal sexual conduct with a minor in the first degree and committing a lewd act upon a minor.  At issue in this appeal is whether the trial judge erred in denying McCall’s motion for an independent psychological examination of the victim.  We affirm.[1]

FACTS

A grand jury in Greenville County indicted McCall for the offenses of criminal sexual conduct with a minor in the first degree and committing a lewd act on a minor.  The victim was McCall’s niece by marriage.

On October 24, 2003, the trial court, Judge Edward W. Miller presiding, held a hearing on McCall’s motion to have the victim undergo an independent psychological or psychiatric evaluation.  In support of the motion, counsel for McCall noted the following:  (1) the victim was a special needs student; (2) the victim went through two rounds of group therapy at a sexual trauma center and was told she could not do a third round; (3) the victim’s mother once stated the victim wanted to recant her accusations against McCall; (4) the defense was willing to pay for the evaluation and had identified three psychiatrists who could perform it; (5) the charges against McCall were based in part on incidents allegedly occurring as long as six years before the victim came forward; (7) the indictments were based primarily on statements by the victim and her mother; and (8) there were possible “fantasy issues” between the victim and McCall.  Counsel further submitted an affidavit with hearsay evidence that the victim engaged in masturbation and once allowed a cousin to shave off her pubic hair.

In response, the solicitor objected to the motion, noting the victim’s handicaps were orthopedic rather than emotional and she was a mainstream student who had achieved good grades and did not have behavior problems.  The solicitor further asserted the therapy the victim received was necessitated by the alleged sexual abuse on which the indictments were based and problems associated with her physical disabilities rather than on any emotional or psychological abnormalities.  Similarly, the solicitor averred the excessive masturbation could be “associated with a history of sexual abuse.”  Finally, the solicitor dismissed the shaving incident as a “childhood antic” that was not indicative of any sexually deviant behavior on the victim’s part.

By written order dated October 24, 2003, Judge Miller denied McCall’s motion for an independent evaluation of the victim.  In the same order, however, he ordered the State “to turn over any and all records of psychological evaluation of the Victim as soon as possible” and granted McCall “leave to revisit this issue if review of these documents shows a compelling need for psychological evaluation of the Victim.”

Following a trial by jury before Judge C. Victor Pyle on January 12-15, 2004, McCall was convicted of both offenses and received concurrent sentences of twenty years on the charge of first-degree criminal sexual conduct with a minor and fifteen years on the charge of lewd act on a minor. This appeal followed.

LAW/ANALYSIS

Relying on In re Michael H., 360 S.C. 540, 602 S.E.2d 729 (2004), both at trial and on appeal, McCall asserts his motion to have the victim undergo an independent evaluation should have been granted.  In addition to the arguments he raised during the pre-trial hearing, he also argues on appeal that, during the trial, the victim’s allegations changed dramatically from what she related during the investigation.  Finally, McCall notes that, contrary to Judge Miller’s instructions, no treatment records for the victim had been made available to him.  We hold McCall failed to preserve his arguments for appellate review.

A trial judge has the discretion “to order a psychological examination in cases in which the child is the complaining victim” upon a showing of “compelling need.”  In re Michael H., 360 S.C. at 551-52, 602 S.E.2d at 735.  The trial judge, however, must have the opportunity to determine whether such an examination is warranted in a particular case.  Id. at 546, 602 S.E.2d at 732. 

Like McCall, the defendant in Michael H. unsuccessfully moved before the final hearing took place to have the complaining witness submit to a psychological evaluation.  Id. at 544, 602 S.E.2d at 731.  Unlike McCall, however, the defendant in Michael H. moved again to have the complainant submit to a psychological evaluation after a clinical psychologist treating the complainant testified at trial and defense counsel discovered he had not received notes concerning reports by the complainant that “he [the complainant] had been hearing voices in his head for some time.”  Id. at 544-45, 602 S.E.2d at 731.

In contrast, during the jury trial in the present case, defense counsel made only a passing reference to his prior motion to have the victim evaluated, stating at the beginning of the hearing, “And just for the record I would like to note that I still objected to that ruling just to protect myself.”  At no time did defense counsel expressly argue that the inconsistencies between the victim’s trial testimony and her statements during the investigation warranted an order for her to submit to a psychological evaluation, and we see no way to construe counsel’s statements to encompass such an assertion.  Similarly, the record does not show any attempt by the defense to compel the State to release the victim’s treatment records.  See State v. Fletcher, 363 S.C. 221, 258, 609 S.E.2d 572, 591 (Ct. App. 2005), cert. granted (Oct. 19, 2006) (“A general objection which does not specify the particular ground on which the objection is based is insufficient to preserve the issue for review.”).  Because the trial judge never had the opportunity to consider, much less rule on, whether the information elicited during the trial would constitute a compelling reason to order a psychological evaluation of the victim or whether McCall was unjustifiably deprived of access to the victim’s treatment records, we cannot address these issues on appeal. 

AFFIRMED.

ANDERSON and THOMAS, JJ., and GOOLSBY, A.J., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.