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Unpublished Opinion No. 2011-UP-268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Withdrawn, Substituted and Refiled August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).
AFFIRMED.
WILLIAMS,
GEATHERS, and LOCKEMY, JJ., concur.
[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.