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2010-UP-256 - State v. Senior

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

George B. Senior, Appellant.


Appeal From Dorchester County
James C. Williams, Jr., Circuit Court Judge


Unpublished Opinion No. 2010-UP-256
Submitted April 1, 2010 – Filed April 26, 2010   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Deputy Attorney General Julie M. Thames, all of Columbia; and Solicitor David Michael Pascoe, of Orangeburg, for Respondent.

PER CURIAM:  George B. Senior appeals his convictions for criminal sexual conduct with a minor in the first degree and lewd act upon a child.  Senior argues the trial court erred in excluding testimony concerning whether the victim had been sexually assaulted by a third party.  Specifically, Senior contends he was unable to present evidence that the victim's behavioral problems resulted from a third-party assault.  We affirm.

Ordinarily, an appellate court will not review an alleged error regarding the exclusion of testimony unless a proffer of testimony is properly made on the record.  State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402-03 (1986).  Absent a proffer, it is impossible for an appellate court to determine the effect of the excluded testimony.  Baber v. Greenville County, 327 S.C. 31, 41, 488 S.E.2d 314, 319 (1997).  However, where the trial court refuses to allow the proffer, and the appellate court can determine from the record what the testimony was intended to show, the appellate court may address the merits.  Schmidt, 288 S.C. at 303, 342 S.E.2d at 403.  

Senior's counsel did not attempt to proffer testimony from either the mental health therapist or the psychiatrist regarding whether anal penetration was reported as part of victim's prior history of abuse.  However, Senior's counsel did attempt to proffer testimony from Dr. Betsy Gibbs, the sex therapist who took the forensic information from the victim.  The trial court denied counsel's proffer request on the grounds the question was irrelevant.  Thus, although the proffer attempt was unsuccessful, this issue is preserved to the extent this court can determine from the record what the testimony was intended to show.  See Schmidt, 288 S.C. at 303, 342 S.E.2d at 403.

Reaching the merits, counsel's intended question provides no evidentiary support for Senior's current argument.  Counsel stated "anal penetration starts with other stuff," implying she intended to ask Dr. Gibbs whether a person who commits a sexual assault involving anal penetration generally commits prior sexual assaults involving other body parts.  Counsel did not suggest that the alleged perpetrator of both acts was not Senior, nor did she suggest the other perpetrator could have caused the victim's behavioral problems instead of Senior.  Counsel's implied line of questioning would not serve to exculpate Senior; thus, Senior suffered no prejudice from the exclusion of the proposed testimony.

In addition, this evidence does not fall within any of the recognized exceptions to the Rape Shield Statute.  See S.C. Code Ann. § 16-3-659.1(1) (2003).  Counsel's implied line of questioning would not provide an alternative source to explain the victim's sexual knowledge, nor would it impeach the victim's credibility.  See State v. Finley, 300 S.C. 196, 200, 387 S.E.2d 88, 90 (1989) (holding the trial court improperly excluded evidence that a female victim engaged in a sexual encounter with another man in defendant's presence to show the victim had motive to falsely accuse the defendant); State v. Grovenstein, 340 S.C. 210, 220, 530 S.E.2d 406, 412 (Ct. App. 2000) (holding evidence of three male victims' prior sexual conduct was relevant to Grovenstein's defense as an alternate explanation of how the victims possessed knowledge of the alleged sexual assault by Grovenstein);  State v. Lang, 304 S.C. 300, 301-02, 403 S.E.2d 677, 678 (Ct. App. 1991) (holding the trial court improperly excluded evidence of the victim's homosexuality to impeach the credibility of the victim when the victim denied his homosexuality on direct examination).

The trial court did not abuse its discretion in excluding testimony regarding an alleged sexual assault of the victim by a third party.  Accordingly, Senior's conviction is

AFFIRMED.[1]

PIEPER and GEATHERS, JJ., and CURETON, A.J., concur.


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