State v. Barrett

785 S.E.2d 387, 416 S.C. 124, 2016 S.C. App. LEXIS 33
CourtCourt of Appeals of South Carolina
DecidedMarch 23, 2016
DocketAppellate Case No. 2013-002158; No. 5395
StatusPublished
Cited by9 cases

This text of 785 S.E.2d 387 (State v. Barrett) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barrett, 785 S.E.2d 387, 416 S.C. 124, 2016 S.C. App. LEXIS 33 (S.C. Ct. App. 2016).

Opinion

GEATHERS, J.

Gerald Barrett appeals his conviction for a lewd act upon a minor, arguing the trial court erred in (1) qualifying Kendra Twitty as an expert “mental health professional, specifically in the area of child sexual abuse characteristics,” and (2) failing to grant a continuance for him to obtain an expert to dispute her testimony. We affirm.

FACTS/PROCEDURAL HISTORY

A grand jury indicted Barrett for criminal sexual conduct (CSC) with a minor, lewd act upon a minor, and kidnapping for acts he allegedly committed upon Victim. Barrett proceeded to trial and immediately before a Monday morning pretrial motions hearing, he moved for a continuance to obtain an expert in Child Sexual Assault Accommodation Syndrome, arguing the State did not disclose its intention to introduce evidence regarding Child Sexual Assault Accommodation Syndrome until the prior Thursday. The trial court denied the motion because Twitty was previously named as the forensic interviewer assigned to this case. Barrett also moved to prohibit the qualification of Twitty as an expert, use of the term “forensic interviewer,” and Twitty’s testimony in its entirety, arguing the testimony would amount to vouching or [127]*127bolstering Victim’s testimony. The trial court withheld ruling until after hearing testimony from Victim.

After Victim’s testimony, outside the presence of the jury, the State sought to qualify Twitty as an “expert regarding the behavior of and trauma of child sexual abuse victims.” The State offered to avoid using the term “Child Sexual Abuse Accommodation Syndrome” as it believed avoiding the term would alleviate any potential confusion by the jury. After additional arguments, the State explained it did not intend to offer her as an expert regarding the syndrome; instead, it sought to offer her as an expert “practitioner of mental health specifically dealing with children [victimized by] child sexual assault.” Over Barrett’s objection, the trial court ruled Twitty could discuss general behavioral evidence regarding delayed disclosure. The State noted it would first question Twitty regarding the Kromah1 factors for Victim’s forensic interview, and then it would seek to qualify Twitty as a mental health expert and offer her expert testimony.

In the presence of the jury, Twitty testified she was a forensic interviewer and counselor/therapist at a children’s advocacy and rape crisis center. She described the forensic interview she conducted with Victim. She also summarized her education, training, and experience in the mental health field. The State sought to admit her as an expert “mental health professional working with victims of child sexual abuse and trauma.” Barrett objected and proceeded to voir dire. Following voir dire, Barrett again objected to Twitty’s qualification. Ultimately, the trial court qualified her as an expert “mental health professional, specifically in the area of child sexual abuse characteristics.”

A jury found Barrett guilty of a lewd act upon a minor. The jury found Barrett not guilty of kidnapping and was unable to reach a unanimous decision as to the CSC with a minor charge. The trial court sentenced him to twelve years’ imprisonment, suspended upon nine years’ imprisonment and four years’ probation. The trial court also subjected him to mandatory GPS monitoring, required him to complete a sexual [128]*128offender treatment program, and placed him on the sex offender registry. This appeal followed.

ISSUES ON APPEAL

1. Did the trial court err in qualifying an expert witness and admitting her testimony?

2. Did the trial court err in failing to grant a continuance?

LAW/ANALYSIS

I. Expert Witness

Barrett argues the trial court erred in qualifying Twitty as an expert mental health professional in the area of child sexual abuse characteristics and admitting her testimony. We disagree.

Initially, despite the State’s contentions otherwise, we find the issue is preserved. During trial, immediately before Twitty’s testimony, the State noted it would seek to qualify Twitty as a mental health expert after Twitty addressed the Kromah factors related to Victim’s interview. Barrett clarified his understanding that the qualification “is only related to delayed disclosure.” Thereafter, pursuant to the trial court’s directive, Barrett objected to the proffered qualification, questioned Twitty during voir dire, and objected again. See State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001) (“[Mjaking a motion in limine to exclude evidence at the beginning of trial does not preserve an issue for review because a motion in limine is not a final determination. The moving party, therefore, must make a contemporaneous objection when the evidence is introduced. However, where a judge makes a ruling on the admission of evidence on the record immediately prior to the introduction of the evidence in question, the aggrieved party does not need to renew the objection.” (citation omitted)).

As to the merits, we find no reversible error. “The decision to admit or exclude testimony from an expert witness rests within the trial court’s sound discretion.” State v. Price, 368 S.C. 494, 498, 629 S.E.2d 363, 365 (2006). “The trial court’s decision to admit expert testimony will not be reversed on appeal absent an abuse of discretion.” Id. “An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law.” [129]*129State v. Douglas, 369 S.C. 424, 429-30, 632 S.E.2d 845, 848 (2006).

In support of his argument that the trial court erred in qualifying Twitty as an expert, Barrett relies on State v. Brown, 411 S.C. 332, 342, 768 S.E.2d 246, 251 (Ct.App.), cert. denied, (Aug. 6, 2015), and State v. Anderson, 413 S.C. 212, 218, 776 S.E.2d 76, 79 (2015), for the proposition that trial courts are prohibited from qualifying a person as an expert mental health professional in the area of child abuse characteristics and admitting that individual’s expert testimony if that individual also conducted the alleged victim’s forensic interview.

In State v. Broum, this court held the State’s expert testimony on child abuse dynamics and delayed disclosures was not inadmissible as being within the ordinary knowledge of the jury; and, the court further held the expert’s specialized knowledge of behavioral characteristics of child sex abuse victims was relevant and crucial in assisting the jury’s understanding of why children might delay disclosing sexual abuse. 411 S.C. at 341-42, 768 S.E.2d at 251. Although the Broum court held the expert’s testimony was properly admitted, the court distinguished improper bolstering in cases involving experts who themselves conducted the forensic interview from cases involving independent mental health experts who addressed general behavioral characteristics. Id. at 343-45, 768 S.E.2d at 252-53.

After Brown, our supreme court addressed this issue in Anderson, 413 S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
785 S.E.2d 387, 416 S.C. 124, 2016 S.C. App. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barrett-scctapp-2016.