In re the Care & Treatment of Thomas S.

741 S.E.2d 27, 402 S.C. 373, 2013 WL 1449996, 2013 S.C. LEXIS 62
CourtSupreme Court of South Carolina
DecidedApril 10, 2013
DocketAppellate Case No. 2011-194610; No. 27241
StatusPublished
Cited by3 cases

This text of 741 S.E.2d 27 (In re the Care & Treatment of Thomas S.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Care & Treatment of Thomas S., 741 S.E.2d 27, 402 S.C. 373, 2013 WL 1449996, 2013 S.C. LEXIS 62 (S.C. 2013).

Opinion

Justice PLEICONES.

We granted certiorari to review an unpublished decision by the Court of Appeals which held that trial court did not err in permitting witness Shellenberg to give an opinion. In re S., Op. No. 2011-UP-121 (S.C.Ct.App. filed March 24, 2011). We agree with petitioner and find that Shellenberg, a lay witness, was improperly allowed to offer expert opinion testimony and that this error was not harmless. We therefore reverse and remand for further proceedings.

[375]*375FACTS

In 2004, petitioner was adjudicated delinquent on charges of. first degree criminal sexual conduct with a minor and disturbing the schools,1 and committed to the Department of Juvenile Justice (DJJ) for an indeterminate period not to exceed his twenty-first birthday. It appears from the record that petitioner engaged in oral and anal, sex, and some fondling, approximately five times over the course of three years, with his step-nephew. Petitioner was aged ten when the- first act occurred, and the victim six.

In February 2008, the South Carolina Juvenile Parole Board determined that petitioner was eligible for release. This decision triggered review pursuant to the Sexually Violent Predator Act (SVP Act).2 S.C.Code Ann. ■§ 44-48-30(5) and § 44-48-40(B) (Supp.2012). Both the multidisciplinary team and the prosecutor’s review committee found reason to believe petitioner met the definition of a- sexually violent predator (SVP),3 and a court determined that probable cause existed to believe he was an SVP. §§ 44 — 48—50 to -80/ Dr. Neller was appointed by the court as the qualified expert following the court’s probable cause determination. § 44-48-80(D).

Following a trial, a jury determined, beyond a reasonable doubt, that petitioner was an SVP. He appealed, the Court of Appeals affirmed, and this certiorari follows.

ISSUE

Did the Court of Appeals err in affirming the trial court’s decision to allow witness Shellenberg to express an expert opinion?

ANALYSIS .

The State called three witnesses to testify that petitioner was an SVP, that is, that he (l). had been convicted of or [376]*376adjudicated delinquent for a sexually violent offense and (2) suffers from a mental abnormality or personality disorder that (3) makes him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. §§ 44^18-30(1); 6(b). A person is “likely to engage in acts of sexual violence” within the definition of an SVP if his “propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” § 44-48-30(9). The purpose of the SVPA is to involuntarily commit only a “limited subclass of dangerous persons” and not to broadly subject any dangerous person to what may be an indefinite term of confinement. In re Luckabaugh, 351 S.C. 122, 568 S.E.2d 338 (2002) citing Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); In re Harvey, 355 S.C. 53, 584 S.E.2d 893 (2003).

Here, there is no question that petitioner satisfied two of the three requirements for being deemed an SVP: he has been adjudicated delinquent for a sexually violent offense and he has been diagnosed as suffering from a mental abnormality.4 Therefore, the only contested issue at trial was whether that mental abnormality means his “propensity to commit acts of sexual violence is of such a degree” as to place him in the “limited subclass of dangerous persons” who should be “confined in a secure facility for long-term control, care, and treatment.”

The State’s first witness was Dr. Neller, a board certified clinical psychologist with an emphasis in forensic psychology. Dr. Neller is the Chief Psychologist with the South Carolina Sexually Violent Predator Program, and was the court-appointed expert in this case. Although Dr. Neller diagnosed petitioner as suffering from a mental abnormality, his professional opinion was that petitioner did not meet the SVP criteria. Dr. Neller testified that the purpose of the SVPA was “to identify, essentially, an extremely dangerous group of sexual offenders” and that he did not see how “most any expert” would place petitioner in that group. When questioned about petitioner’s conduct that would appear to demon[377]*377strate to a layperson that he was a danger, e.g., deviant fantasies, downloading a pornographic cartoon depicting violent rape, and repeated disciplinary violations, Dr. Neller testified that none were probative of a likelihood that petitioner would reoffend.

Following Dr. Neller’s testimony, the State called Linda Price, an employee of the South Carolina Board of Juvenile Parole. Price’s testimony concerned petitioner “acting out” when she went to inform him that the Board had approved his release. He was calm until she told him that the Board had ordered he pay restitution to the State for expenses it had incurred when it paid for his victim’s counseling and medical bills.5 Price testified that petitioner became loud and red-faced, questioned why he should pay restitution, and blamed the victim for his confinement. Price testified she repeatedly told petitioner to hush and sit down, and that before he sat down he “appeared to make a lunge in my direction with his body” and that after sitting he refused to say anything more. She went on to testify to the difficulties in having petitioner’s North Carolina relatives agree to take him, and that if he went to North Carolina he would be supervised while on parole but would not be on a public sex offender registry. While there was no objection to Price’s testimony on the ground of relevance, it is difficult to understand how this evidence assisted the jury in determining whether petitioner has the required propensity to reoffend such that he is in the small subclass of dangerous offenders who should be involuntarily committed.

The State’s final witness was a licensed social worker (Shel-lenberg) who had worked with petitioner while he was confined in DJJ. She “impeached” Dr. Neller’s written report, which stated that petitioner’s biological mother had visited monthly, by testifying she only visited twice, by stating Dr. Neller’s report failed to include two school disciplinary reports made after the report was prepared, and by testifying that petitioner’s medications had been changed after the report [378]*378was prepared. Finally, Shellenberg testified that eleven “level drops” for disciplinary infractions were omitted from Dr. Neller’s report. Shellenberg admitted, however, there was no sexual component to any of petitioner’s disciplinary infractions other than the downloading of the pornographic cartoon.

Shellenberg testified that while she was a certified sex offender treatment specialist, she was not qualified to diagnose petitioner, but that Dr. Neller was. Shellenberg testified she was familiar with Dr. Neller’s report, and was asked about the report’s conclusion that petitioner’s responses on certain assessments were consistent with anti-social narcissistic and paranoid features.

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Related

In re Snow
823 S.E.2d 467 (Supreme Court of South Carolina, 2019)
State v. Anderson
776 S.E.2d 76 (Supreme Court of South Carolina, 2015)

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741 S.E.2d 27, 402 S.C. 373, 2013 WL 1449996, 2013 S.C. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-care-treatment-of-thomas-s-sc-2013.