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2011-UP-268 - In The Matter of Vincent N. Way

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

In The Matter Of The Care And Treatment of Vincent N. Way, Appellant.


Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge


Unpublished Opinion No. 2011-UP-268
Submitted April 1, 2011 – Filed June 8, 2011
Withdrawn, Substituted and Refiled  August 24, 2011


AFFIRMED


Appellate Defender Lanelle C. Durant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General William M. Blitch, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia, for Respondent.

PER CURIAM: Vince Neal Way appeals the trial court's order committing him to the Department of Mental Health for long term control, care, and treatment after a jury found that Way satisfied the definition of a sexually violent predator pursuant to the Sexually Violent Predator Act (SVP Act), S.C. Code Ann. §§ 44-48-10 to -170 (Supp. 2010).  Way argues the trial court erred (1) in allowing the State to present evidence of a 1995 criminal sexual conduct (CSC) charge that was later dismissed because DNA evidence proved that he was not guilty; (2) in allowing the victim of his 1993 CSC conviction to testify; and (3) in allowing the State to question him regarding whether he retained an expert to conduct a second mental evaluation.  Further, Way asserts the trial court erred when it allowed the State to tell the jury that it could infer the absence of Way's retained expert meant that the expert's testimony would have been adverse to his case.

Because we find the trial court made no reversible error, we affirm.[1] 

I.   Evidence of a Prior Conviction

Way asserts the trial court erred in allowing the State to present evidence of the 1995 CSC charge that was later dismissed because DNA evidence proved that he was not guilty.  Way states the probative value of that evidence was substantially outweighed by the danger of unfair prejudice.  He alleges the jury was led to believe he was guilty of the CSC charge when, in fact, he pled guilty to a lesser charge.  However, Way's argument is based on an erroneous interpretation of the sequence of events and testimony at trial.  Despite the trial court's ruling that this evidence was admissible, the State ultimately abandoned the introduction of this evidence.  Therefore, we find no reversible error in the trial court's ruling.    

The admission of evidence is within the sound discretion of the court and will not be reversed absent a showing of abuse of discretion.  In re Corley, 353 S.C. 202, 205, 577 S.E.2d 451, 453 (2003); see also State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004) ("The admission or exclusion of evidence is a matter addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of a manifest abuse of discretion accompanied by probable prejudice.").  "The trial judge is given broad discretion in ruling on questions concerning the relevancy of evidence, and his decision will be reversed only if there is a clear abuse of discretion."  State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248, 256 (2000).

"Generally, all relevant evidence is admissible."  State v. Pittman, 373 S.C. 527, 578, 647 S.E.2d 144, 170 (2007); see also Rule 402, SCRE.  Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Rule 401, SCRE; State v. Livingston, 327 S.C. 17, 19-20, 488 S.E.2d 313, 314 (1997).  On the other hand, relevant evidence may be excluded where its probative value is substantially outweighed by the danger of unfair prejudice.  Rule 403, SCRE; State v. Brazell, 325 S.C. 65, 78, 480 S.E.2d 64, 72 (1997).   

Under the SVP Act, a sexually violent predator is defined as a person who "(a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment."  S.C. Code Ann. § 44-48-30(1)(a)-(b) (Supp. 2010).  "Mental abnormality" is defined as "a mental condition affecting a person's emotional or volitional capacity that predisposes the person to commit sexually violent offenses."  S.C. Code Ann. § 44-48-30(3) (Supp. 2010).  The phrase "likely to engage in acts of sexual violence" is defined as a "propensity to commit acts of sexual violence . . . of such a degree as to pose a menace to the health and safety of others."  S.C. Code Ann. § 44-48-30(9) (Supp. 2010).

In 1993, Way pled guilty to committing a lewd act upon a minor and was sentenced to ten years' imprisonment, suspended upon service of 18 months' imprisonment plus five years' probation.  In 1995, while on probation, Way was arrested for CSC and pled guilty to contributing to the delinquency of a minor.  In 1997, while on probation from the prior convictions, Way pled guilty to committing a lewd act upon a minor and was sentenced to 15 years' imprisonment. 

At Way's civil commitment proceeding, the State sought to admit testimony from the State's retained psychiatrist regarding the 1995 CSC charge to show Way had a dangerous propensity to commit violent sexual acts.  Way objected to the admission of the 1995 CSC charge as it had later been determined that he did not commit the crime.  The court overruled the objection, stating that the testimony was more probative than prejudicial, that it was relevant, and that it helped to form the foundation of the expert witness's opinion.  Nevertheless, when direct examination continued, the State only questioned the witness regarding Way's "contributing to the delinquency" plea.  The State never mentioned in the jury's presence that Way was indicted for CSC.  Therefore, no prejudice occurred to Way as a result of the trial court's ruling that allowed the State to question the witness regarding the CSC charge.  The only mention of anything sexual in nature regarding the CSC charge was during cross-examination by Way's own trial counsel.  Hence, Way cannot complain on appeal regarding the introduction of testimony that he elicited.  Gissel v. Hart, 382 S.C. 235, 243, 676 S.E.2d 320, 324 (2009); see also Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 476, 629 S.E.2d 653, 670 (2006) (stating a party may not complain on appeal of an error that his own conduct produced).  Because we find that no error occurred in the admission of evidence, we affirm the trial court's ruling.      

II.  Testimony of a Prior Victim of CSC

Way argues the trial court erred in allowing the victim of his 1993 CSC conviction to testify.  Way contends that because he pled guilty to the charge and stipulated that the offense was a qualifying offense under the SVP Act, and because the forensic psychiatrist had already testified to the events surrounding the conviction, the victim's testimony served only to bolster the expert testimony.  We disagree.

"Under the SVP Act, the State bears the burden of proving beyond a reasonable doubt that a person is a sexually violent predator."  In re Corley, 353 S.C. at 206, 577 S.E.2d at 453; see also S.C. Code Ann. § 44-48-100(A)(2010) ("The court or jury must determine whether, beyond a reasonable doubt, the person is a sexually violent predator.").  In Corley, appellant moved to prevent the details of his prior convictions, including a CSC conviction, from being admitted into evidence.  Appellant admitted to the convictions but stated that "the details surrounding his prior offenses were not necessary and admission of the information would be prejudicial."  Id. at 204, 577 S.E.2d at 452.  The State's expert and appellant's expert testified regarding appellant's mental abnormality and personality disorder that made it likely that he would engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. 

The State was allowed to admit the details of the defendant's prior sexual offenses that triggered the SVP Act in order to establish that he was a sexually violent predator.  Our supreme court stated that "[p]ast criminal history is therefore directly relevant to establishing section 44-48-30(1)(a) [of the SVP Act, defining a sexually violent predator as a person who has been convicted of a sexually violent offense].  As such, the State was not required to accept appellant's stipulation."  Id. at 206, 577 S.E.2d at 453. 

In this case, Way moved to exclude testimony from the victim of his 1993 offense.  The trial court granted the motion in part and denied it in part.    The trial court stated,

But the specifics of the offense were not admissible.  They're extremely prejudicial, and they're not probative . . . She can testify as to the time period that it took place, where it took place, and in whose presence it took place.  Because that goes to his lack of judgment in terms of him doing it in the presence of her brother.  And the length of time goes to his propensity, and that would be the only extent to which testimony can be elicited.

The victim proceeded to testify but unlike Corley, evidence was not admitted that revealed the details of the offense.  The victim merely stated the time frame, location and who was present during the abuse.  We believe allowing this evidence did not constitute error in that it was cumulative testimony that served to establish Way met the requirements of a sexually violent predator under the Act.  Yet assuming arguendo that is was admitted in error, the error does not warrant reversal. 

"In order for an error to warrant reversal, the error must result in prejudice to the appellant."  State v. Preslar, 364 S.C. 466, 473, 613 S.E.2d 381, 385 (Ct. App. 2005); see also State v. Wyatt, 317 S.C. 370, 372, 453 S.E.2d 890, 891 (1995) (stating that error without prejudice does not warrant reversal).  "[A]dmission of evidence is largely within the discretion of the trial judge and in order to constitute reversible error in the admission thereof, the accused must be prejudiced thereby; and the burden is upon him to satisfy this court that there was prejudicial error."  State v. Motley, 251 S.C. 568, 575, 164 S.E.2d 569, 572 (1968).  "We have held that error, if any, in the admission of certain testimony was not prejudicial where similar testimony has been received without proper objection."  Id. at 575, 164 S.E.2d at 572.

The testimony given by Way's 1993 CSC victim was not prejudicial or harmful to him because similar testimony had already been received without proper objection.  Prior to the victim's testimony, not only did the State's expert witness testify regarding the time and place of the 1993 offense, she testified regarding details of the offense without objection from Way.  Accordingly, the trial court did not err in allowing the victim to testify and its ruling is affirmed.

III.  Testimony Regarding Way's Second Evaluation

Way argues the trial court erred in allowing the State to question him regarding whether he retained an expert to conduct a second mental evaluation.  Further, he asserts the trial court erred when it allowed the State to tell the jury that it could infer the absence of Way's retained expert meant that the expert's testimony would have been adverse to his case.  While we agree with the trial court's decision to allow the State to cross-examine Way regarding a second mental evaluation, we hold it was improper for the State to imply a negative inference regarding the absence of Way's expert witness before the jury. 

A.  Way's Retained Expert  

The State argues that it was allowed to cross-examine Way regarding his retained expert pursuant to the SVP Act.  In his assertion of error, Way cites to Rule 26(b)(4)(B), SCRCP, and argues that he was "not required to disclose nor produce an expert who was only consulted informally, or consulted and not retained or specially employed."  However, this issue should be properly addressed according to the South Carolina Rules of Evidence and established precedent. 

As mentioned above, generally, all relevant evidence is admissible.  Rule 402, SCRE; Pittman, 373 S.C. at 578, 647 S.E.2d at 170.  Yet, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ."  Rule 403, SCRE; State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 94 (2002).  Accordingly, "a trial judge has wide latitude concerning the admissibility of evidence."  State v. Torres, 390 S.C. 618, 624, 703 S.E.2d 226, 229 (2010); State v. Rosemond, 335 S.C. 593, 596, 518 S.E.2d 588, 589-90 (1999).  Likewise, "[t]he appellate court reviews a trial judge's ruling on admissibility of evidence pursuant to an abuse of discretion standard and gives great deference to the trial court."  Torres, 390 S.C. at 625, 703 S.E.2d at 230.   

Because the trial court limited the State to questions the court determined to be relevant pursuant to the rules of evidence, it did not err in allowing the State to question Way regarding his retained expert.  Therefore, we hold there was no abuse of discretion, and the trial court's ruling is affirmed.

B.   Negative Inference

Way argues the trial court erred in allowing the State to tell the jury it could infer that the absence of Way's retained expert meant that his testimony would have been adverse to Way's case.  He asserts the State had equal access to the witness and could have called upon him to testify as well.  The State cites to Duckworth v. First National Bank, 254 S.C. 563, 576, 176 S.E.2d 297, 304 (1970), to support its assertion that it was proper during closing argument, to state the jury could conclude the testimony of the absent witness would have been negative and that it did not have equal access as the witness was in Way's control.  The trial court overruled Way's objection and allowed the State to argue to the jury it could infer the absence of Way's expert witness meant that the testimony would have been negative.  While we hold this was error, it does not rise to the level of reversible error.

In Duckworth, our Supreme Court stated:  

It is a well settled rule that if a party knows of the existence of an available witness on a material issue and such witness is within his control and if without satisfactory explanation he fails to call him, the jury may draw the inference that the testimony of the witness would not have been favorable to such party.  This inference is especially applicable where the relationship of employer-employee exists between the parties.  

Id. at 576, 176 S.E.2d at 304.

"Generally, the rule is applied when the uncalled witness is an agent, employee, relation, or associate of the party failing to call him, or within some degree of control of said party."  Davis v. Sparks, 235 S.C. 326, 333, 111 S.E.2d 545, 549 (1959).  Further, "in the absence of explanation, the failure or refusal of a party to produce a witness may create an adverse inference," where the party has knowledge of the witness, has the power to produce the witness and the witness "is not equally accessible to his opponent, and is such as he would naturally produce if the witness were favorable to him."  Wright v. Hiester Constr. Co., 389 S.C. 504, 525, 698 S.E.2d 822, 833 (Ct. App. 2010).  However, where a party lacks "control" over the potential witness, an instruction of an adverse inference based on the witness's absence is improper.  Davis, 235 S.C. at 333, 111 S.E.2d at 549.

In this case, there is no indication that Way had control over the retained expert witness.  The witness was hired and paid under the provisions of the SVP Act and was not an employee, relation, or associate of Way.  The State could have called the expert witness, whose absence it sought to emphasize, to testify.  Consequently, it was error to allow the State to argue to the jury during its closing, "Dr. Martin is not here . . . I think the inference you can draw from that is would Dr. Martin's testimony, if he was here, be adverse to the respondent?" 

Although improper, we hold this error did not rise to the level of reversible error.  Evidence of Way's prior sexual criminal history, the testimony of the State's expert witness, and the testimony of the victim of Way's 1993 CSC offense provided relevant and substantive evidence to support the jury's determination.  In light of the entire record and testimony at trial, Way has not proven that this statement prejudiced his case.  See Barrett, 299 S.C. at 488, 386 S.E.2d at 244 ("Whether trial errors are harmless depends upon the circumstances of the particular case.  The materiality and prejudicial character of the error must be determined from its relationship to the entire case."); see also State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) ("Error is harmless when it could not reasonably have affected the result of the trial.") (internal quotation marks and citation omitted). 

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WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.


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