State v. Whitner

732 S.E.2d 861, 399 S.C. 547, 2012 WL 2847614, 2012 S.C. LEXIS 138

• Court: Supreme Court of South Carolina
• Decided: July 11, 2012
• Docket: No. 27142
• Status: Published

Opinions

Justice KITTREDGE.

Appellant Samuel Whitner was convicted and sentenced for the offense of criminal sexual conduct (CSC) with a minor in the first degree. The victim of the sexual abuse was Appellant’s then five-or six-year-old daughter. Appellant assigns error to two evidentiary rulings. The first ruling was the denial of Appellant’s motion to suppress a tape recording of his telephone conversation with the victim wherein he admitted the abuse. The second ruling was the denial of Appellant’s motion to exclude evidence in connection with a forensic interview of the minor victim. We find no error in the admission of the challenged evidence and affirm.

I.

Appellant is the victim’s biological father. According to the victim’s testimony, when she was five or six years old, Appellant exposed his penis to victim and forced her to perform oral sex on him twice.

In 2007, when the victim was eleven years old, the victim disclosed the abuse to her mother (Mother). According to Mother, she encouraged the victim to confront Appellant. The victim telephoned Appellant to confront him, and he denied the incident. Mother subsequently informed her husband (Stepfather) about the abuse. The couple decided to record telephone calls between Appellant and the victim. Several days later, Mother consented to Stepfather recording a telephone conversation between the victim and Appellant without the victim’s knowledge or consent. During the thirty-one-minute conversation, Appellant admitted the sexual abuse and stated that the incident was a mistake he deeply regretted.

Mother supplied the recording to law enforcement, and Appellant was arrested and charged with CSC with a minor in the first degree. As part of the investigation, a forensic interview of the victim was conducted.

Appellant filed a motion to suppress the recorded telephone conversation, claiming the recording, intercepted without the prior consent of either party, violated the South Carolina Homeland Security Act (Wiretap Act), S.C.Code Ann. § 17-30-10 et. seq. (Supp. 2010), which generally prohibits the interception of communications. A circuit court judge granted the motion to suppress.¹

The State filed an interlocutory appeal with the court of appeals and sought to vacate the trial court’s suppression order pursuant to the Wiretap Act. The court of appeals correctly granted the State’s motion to vacate and found that the trial court lacked subject matter jurisdiction because the Wiretap Act requires that a motion to suppress be made before a panel of judges of the court of appeals.

Thereafter, the court of appeals held a suppression hearing, including the taking of testimony and oral arguments. Stepfather testified that he believed recording the conversation would aid the parents in deciding the best course of action for the victim, including determining whether she needed sexual abuse counseling. Likewise, Mother testified she believed recording the conversations would be useful because she did not know what the conversations between the victim and Appellant entailed, the victim was crying often, and she needed to determine if it was appropriate to permit Appellant to have contact with the victim.

On the legal issue of consent, the court of appeals held that the Legislature, in enacting the Wiretap Act, intended to adopt the vicarious consent doctrine. Mother could, therefore, lawfully vicariously consent to the recording on behalf of the victim. On the factual matter, the court of appeals found that Mother had a good faith and objectively reasonable basis for believing the recording was necessary and in the victim’s best interest, and it therefore denied Appellant’s motion to suppress. The court of appeals sent the ease back to the trial court.

At trial, the recording of the phone conversation between Appellant and the victim was admitted, over Appellant’s continuing objection. The State also introduced a videotape of the victim’s forensic interview. The contents of the interview were similar to the underlying allegations the victim first disclosed to Mother and the testimony given by the victim at trial. The videotape was admitted over Appellant’s objections of improper bolstering and hearsay. The jury convicted Appellant of CSC with a minor in the first degree, and he was sentenced to prison. This appeal follows.

II.

Appellant claims the Wiretap Act was violated because neither he nor the victim, the parties to the communication, consented to the recording. Conversely, the State claims the Wiretap Act was not violated because the recording fell within the consent provision. Specifically, the State contends the statute allows Mother, as a guardian to the minor victim, to vicariously consent on behalf of the victim to record the telephone conversation between the victim and Appellant.

The South Carolina Wiretap Act is patterned after the Omnibus Crime Control and Safe Streets Act of 1968 (Federal Act). This Court must determine whether the Wiretap Act allows or bars the admission of the recording.

Questions of statutory interpretation are questions of law, which are subject to de novo review and which we are free to decide without any deference to the court below. Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689 (2010); Catawba Indian Tribe of S.C. v. State, 372 S.C. 519, 524, 642 S.E.2d 751, 753 (2007).

The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the legislature. Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007). “All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute.” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010). Absent an ambiguity, the court will look to the plain meaning of the words used to determine their effect. City of Rock Hill v. Harris, 391 S.C. 149, 155, 705 S.E.2d 53, 55 (2011). “Under general rules of statutory construction, a jurisdiction adopting legislation from another jurisdiction imports "with it the judicial gloss interpreting that legislation.” Orr v. Clyburn, 277 S.C. 536, 540, 290 S.E.2d 804, 806 (1982).

The Wiretap Act is violated when a person intercepts oral communications that are not otherwise exempt from or subject to an exception contained in section 17-30-30. Evidence intercepted in violation of the Wiretap Act must be suppressed. See S.C.Code Ann. § 17-30-110. However, when a party to a communication gives consent for the communication to be intercepted, such recording does not violate the law. The full text of the consent provision states:

It is lawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception.

S.C.Code Ann. § 17-30-30(0 (emphasis added).

Appellant argues that because there is no explicit provision permitting vicarious consent, parental consent on behalf of a minor was not intended to be an exception to the Wiretap Act. We disagree.

Our Wiretap Act parallels the Federal Act passed by Congress in 1968, which similarly permits lawful interception where one party to the communication consents.² Because no South Carolina cases have addressed a parent’s ability to vicariously consent to the recording of a child’s telephone conversations and because the Federal Act is substantively the same as South Carolina’s Wiretap Act, we look to the federal courts’ interpretations regarding vicarious consent. See Orr, 277 S.C. at 540, 290 S.E.2d at 806 (“Under general rules of statutory construction, a jurisdiction adopting legislation from another jurisdiction imports with it the judicial gloss interpreting that legislation.”).

The leading federal case is Pollock v. Pollock, 154 F.3d 601 (6th Cir.1998). In Pollock, the Sixth Circuit Court of Appeals held that a mother did not violate the Federal Act when she recorded conversations between her daughter and the daughter’s stepmother. The Pollock court, adopting the rule first enumerated in Thompson v. Dulaney, 838 F.Supp. 1535, 1544 (D.Utah 1993), articulated the doctrine of vicarious consent as follows:

[A]s long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.

154 F.3d at 610; see also Wagner v. Wagner, 64 F.Supp.2d 895, 896 (D.Minn.1999) (holding a guardian may consent on behalf of a minor to the interception of a communication); Campbell v. Price, 2 F.Supp.2d 1186, 1191 (E.D.Ark.1998) (holding a parent’s good faith concern for his minor child’s best interest may empower the parent to legally intercept the child’s conversations); Thompson v. Dulaney, 838 F.Supp. 1535, 1544 (D.Utah 1993) (finding the vicarious consent doctrine permissible under the federal wiretap statute because of a parent’s duty to act in the best interest of their child).

South Carolina’s Wiretap Act, modeled after the Federal Act, was enacted in 2002. As the above federal jurisprudence indicates, when our Legislature enacted the Wiretap Act, it was well aware of the majority rule concerning construction of the Federal Act in allowing for vicarious consent.³ We are persuaded that the consent provision in the Wiretap Act encompasses vicarious consent. In reaching this conclusion, we join the majority of state courts that have confronted the same question of statutory construction and have followed the federal interpretation. Accord Silas v. Silas, 680 So.2d 368 (Ala.Civ.App.1996); G.J.G. v. L.K.A, No. CN93-09835, 2006 WL 2389340 (Del.Fam.Ct.2006); State v. Spencer, 737 N.W.2d 124 (Iowa 2007); Smith v. Smith, 923 So.2d 732 (La.App. 1 Cir. 9/28/05); Kroh v. Kroh, 152 N.C.App. 347, 567 S.E.2d 760 (2002); State v. Diaz, 308 N.J.Super. 504, 706 A.2d 264 (N.J.Super.A.D.1998); People v. Clark, 19 Misc.3d 6, 855 N.Y.S.2d 809 (N.Y.Sup.Ct.App.Term 2008); Lawrence v. Lawrence, No. E2010-00395COA-R3-CV, 2010 WL 4865516 (Tenn.Ct.App.2010); Alameda v. State, 235 S.W.3d 218 (Tex.Crim.App.2007).

We further find that Appellant misconstrues the scope of the term “consent.” “Consent” is a broad term and is defined as “agreement, approval, or permission as to some act or purpose.” Black’s Law Dictionary 346 (9th Ed. 2009). The law recognizes different kinds of consent, including express, implied, informed, voluntary, and parental. Parental consent is defined as “[c]onsent given on a minor’s behalf by at least one parent, or a legal guardian, or by another person properly authorized to act for the minor, for the minor to engage in or submit to a specific activity.” Id. We believe the various types of consent recognized in the law support the result we reach today in discerning legislative intent to include vicarious consent.⁴

In sum, we believe the court of appeals correctly determined that the consent provision in the Wiretap Act includes vicarious consent.

III.

Appellant contends that even if the Wiretap Act encompasses vicarious consent, that doctrine is not applicable in the instant case. Initially, Appellant asserts that before the vicarious consent doctrine may be applied, a court must find the minor lacked capacity to consent. Additionally, Appellant argues Mother and Stepfather did not have a good faith and objectively reasonable basis for believing it was necessary and in the best interest of the victim to record the telephone conversation.

A.

Appellant argues that the victim was capable of consenting because she was eleven years old at the time of the recording. But a minor’s actual ability to consent does not preclude a parent’s ability to vicariously consent on her behalf. See Pollock, 154 F.3d 601 (applying the vicarious consent doctrine to a fourteen-year-old); State v. Spencer, 737 N.W.2d 124 (Iowa 2007) (applying the vicarious consent doctrine to a thirteen-year-old); Alameda v. State, 235 S.W.3d 218 (Tex.Crim.App.2007) (applying the vicarious consent doctrine to a thirteen-year-old). Further, we believe it inadvisable to create a bright-line age limit for the application of vicarious consent because “not all children develop emotionally and intellectually on the same timetable.” Pollock, 154 F.3d at 610. Thus, the ability to invoke the vicarious consent doctrine prior to the age of majority does not turn on an age-mandated bright-line rule, nor does it require a minor’s lack of capacity.

B.

Appellant next contends that the court of appeals erred in finding Mother had a good faith and objectively reasonable basis for intercepting the telephone conversation between the victim and Appellant. Pursuant to the procedure prescribed by the Wiretap Act,⁵ the court of appeals acted as the trial court in the motion to suppress hearing. “The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion.” State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). “An abuse of discretion occurs when the trial court’s ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support.” Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000).

The parents’ motivation in recording the telephone conversation is a question of fact. Given our standard of review, the issue before us is limited to a determination of whether there was any evidence supporting the court of appeals’ finding that the parents had a good faith basis for intercepting and recording the phone conversation.

Mother and Stepfather testified they believed the recordings would assist them in deciding the best course of action and in determining whether the victim needed counseling. Likewise, Mother testified it was necessary to determine if it was in the victim’s best interest to have continued visitation with Appellant. We believe the evidence supports the court of appeals’ finding that Mother had a good faith and objectively reasonable belief that intercepting the telephone conversation was necessary and in the victim’s best interest.⁶ Thus, we conclude the court of appeals did not abuse its discretion in denying the motion to suppress.

IV.

Appellant also contends the interception of the phone conversation was an unreasonable invasion of privacy under the additional protections afforded by our state’s constitution. See S.C. Const. art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.... ”). We disagree. Appellant’s argument is dependent upon a rejection of the vicarious consent doctrine. Because the Wiretap Act provides for vicarious consent of a minor child, Appellant’s constitutional argument must be rejected.

V.

Appellant’s final issue on appeal addresses the admissibility of the forensic interview videotape, contending it was cumulative repetition of the minor victim’s testimony at trial and improper bolstering. We disagree. As with any issue regarding the admissibility of evidence, we review the trial court’s ruling for abuse of discretion. State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).

Generally, a prior consistent statement is not admissible unless the witness is charged with fabrication or improper motive or bias. Rule 801(d)(1)(B), SCRE. However, in CSC cases involving minors, the Legislature has made specific allowances for such hearsay statements of child victims under the proper circumstances. See S.C.Code Ann. § 17-23-175 (Supp.2010) (prescribing the requirements that must be met for a child victim’s out-of-court statement to be admitted). Moreover, the South Carolina Rules of Evidence explicitly recognize the authority of the Legislature to enact evidentiary rules. See Rule 101, SCRE (“Except as otherwise provided by rule or by statute, these rules govern proceedings in the courts of South Carolina.... ”). Unless a legislative enactment concerning a matter of evidence violates the constitution, the legislative enactment is valid. See City of Rock Hill v. Harris, 391 S.C. 149, 154, 705 S.E.2d 53, 55 (2011) (holding that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the state or federal constitutions).

Section 17-23-175 is a valid legislative enactment. Admittedly, we have confronted instances where the State has abused the statute and sought to have the forensic interviewer, improperly imbued with the imprimatur of an expert witness, invade the province of the jury by vouching for the credibility of the alleged victim. However, this is not such a case. In fact, the forensic interview of the child and mere foundational trial testimony of the interviewer serve as a model of how the statute is designed to work. Specifically, the forensic interviewer did not improperly lead or influence the victim in any way, and the victim answered the questions on her own accord. Moreover, the forensic interviewer’s testimony was for the limited purpose of laying the proper foundation for the admission of the videotape.⁷ It offered no improper testimony, and included no bolstering testimony that would invade the province of the jury. Compare State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011) (finding the trial court erred in admitting portions of forensic interviewer’s written reports that went to the victims’ veracity for truth regarding the allegations of abuse) with State v. Douglas, 380 S.C. 499, 671 S.E.2d 606 (2009) (holding that trial court’s admission of testimony from a forensic interviewer did not prejudice defendant as interviewer testified as to her personal observations and did not vouch for the victim’s veracity). Thus, there was no error in the admission of the forensic interview into evidence.

VI.

In sum, we believe the Legislature intended the consent provision in the Wiretap Act to encompass the vicarious consent of a parent on behalf of a minor child. Moreover, there was evidence from which the court of appeals could conclude the parents had a good faith and objectively reasonable basis for recording the phone conversation and, accordingly, the court of appeals did not abuse its discretion in denying the motion to suppress. Additionally, we find no error in the trial court’s admission of the forensic interview videotape.

AFFIRMED.

TOAL, C.J., and BEATTY, J., concur. PLEICONES, J., concurring in a separate opinion in which Acting Justice EUGENE C. GRIFFITH, concurs.

1 . The judge who granted the motion to suppress was not the judge who presided over the trial.

2 . "It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C.A. § 2511 (2006).

3 . In fact, prior to the adoption of the Wiretap Act, this Court's jurisprudence relied on federal courts' interpretations of the Federal Act in permitting the recording of a telephone conversation where only one party to the conversation consented. See Mays v. Mays, 267 S.C. 490, 229 S.E.2d 725 (1976) (holding that one party to a telephone conversation may lawfully record the conversation without the other party's knowledge or consent, and subsequently disclose it); State v. Andrews, 324 S.C. 516, 479 S.E.2d 808 (Ct.App.1996) (where one party consents to a recording, it does not violate a person's right to privacy).

4 . Appellant's argument rests in part on various federal courts’ rejection of the inter-spousal consent doctrine, which permits one spouse to intercept an electronic communication of the other spouse. See e.g., Pritchard v. Pritchard, 732 F.2d 372, 373 (4th Cir.1984) (finding no exception exists under the federal wiretapping statute for instances of willful, unconsented to electronic surveillance between spouses). However, the fact that there is no inter-spousal consent exception does not preclude an adoption of a parent-child vicarious consent exception. Moreover, we view the vicarious consent doctrine as a natural consequence of the unique relationship of parent and child. The doctrine's adoption is far more compelling and justifiable than the inter-spousal consent, as fundamentally different considerations are implicated. The United States Supreme Court and this Court have held it is "the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003) (citing Troxel and stating "[i]t is well-settled that parents have a protected liberty interest in the care, custody, and control of their children”). Furthermore, parents have a duty to protect their child because children "often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).

5 . S.C.Code Ann. § 17-30-110 states: "The motion [to suppress] must be made before the reviewing authority and must be decided on an expedited basis.” The "reviewing authority” is defined as "a panel of three judges of the South Carolina Court of Appeals designated by the Chief Judge of the South Carolina Court of Appeals.” S.C.Code Ann. § 17-30-15(9).

6 . Although we recognize the fundamental right of parents to make decisions concerning the care, custody, and control of their children, we also recognize, as does the concurrence, that such right is not without limits. As the concurrence states, "constitutional protection does not confer on parents an unlimited right to control their children.” While we agree, in the abstract, with the concurrence’s sweeping recognition of parents’ fundamental right to make decisions concerning the welfare of their children, we must confront the issue in the context presented and not venture into areas never raised, argued or briefed by any party. Appellant argues only that the Wiretap Act does not provide for vicarious consent; we have not been presented with a challenge or discussion of the viability of Pollock post-Troxel. Assuming that issue were squarely before us, we would adhere to the Pollock doctrine in this case. In this criminal case against the Appellant father, we are presented with one parent, Mother, vicariously consenting to recording her child's telephone conversation with the other parent, Appellant. In the context where one parent vicariously consents to record a child's electronic communication with the other parent, we believe the Pollock doctrine, by imposing a good faith standard linked to the child's best interest, sets forth a proper and reasonable limitation on a parent’s right to make decisions concerning the child.

7 . We recognize that the State sought on direct examination to venture into the forbidden area of improper bolstering, but Appellant’s objections were promptly sustained.