State v. Chisholm

• Decision Date: 26 October 2011
• Docket Number: No. 4899.,4899.
• Citation: 717 S.E.2d 614,395 S.C. 259
• Parties: The STATE, Respondent, v. Jerome CHISHOLM, Appellant.
• Court: South Carolina Court of Appeals

395 S.C. 259

717 S.E.2d 614

The STATE, Respondent,

v.Jerome CHISHOLM, Appellant.

No. 4899.

Court of Appeals of South Carolina.

Heard Sept. 14, 2011.Decided Oct. 26, 2011.

Appellate Defender Robert Pachak, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Deputy Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.

HUFF, J.

Appellant, Jerome Chisholm, appeals his conviction of criminal sexual conduct (CSC) with a minor in the first degree, asserting (1) the State lacked probable cause to obtain oral swabs from him for DNA comparison, (2) the trial court erred in failing to exclude Human Immunodeficiency Virus (HIV) test results when no chain of custody was established, (3) the trial court erred in failing to exclude HIV test results because the probative value was substantially outweighed by the danger of unfair prejudice, and (4) the trial court erred in overruling defense counsel's motion for a mistrial after the child victim's treating doctor testified the child told her Chisholm “did something bad,” as this testimony amounted to improper hearsay. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The mother of the victim (Mother) testified that on Saturday morning, September 17, 2005, Chisholm came to the home she shared with her six year-old daughter (Victim) and Mother and Chisholm's two year-old son. Mother and the two children were up early that morning, and Mother had already made her bed by the time Chisholm arrived. Mother received a phone call and went to her back porch to take the call, which lasted five to ten minutes. When Mother returned inside the home, the children were not in their bedroom where she left them. Mother looked in her bedroom, where she found her son and Chisholm in her bed, underneath the covers. Mother did not see Victim, and when she inquired where Victim was, Chisholm did not answer, but he had a “crazy look.” Mother then noticed Victim's hair bow sticking out from under the top of the covers. When Mother pulled the covers back, she observed Victim face down in the bed, with her underwear and shorts pulled down and “Chisholm's penis hanging down between his legs and inside [her] child's butt.” Mother lifted Victim and put her clothes back on her. She tried to call police, but was thwarted by Chisholm, who would not let Mother leave the home either. Mother sent Victim down the street to her sister-in-law's home, and Mother eventually made it there as well. After talking with police, Mother transported Victim to the hospital for a sexual assault examination.

Victim, who was ten years old at the time of the trial, also testified concerning the incident. Victim stated that on Saturday, September 17, she and her brother were playing in their room at Mother's house. Her brother's father, Chisholm, put her in the bed, turned her over from her back to her stomach, and got on her. At this time, Chisholm had pulled Victim's shorts and underwear down to her knees. Victim testified Chisholm put his penis inside her, “in [her] butt.” Mother walked in, pulled Victim up, and took Victim to her aunt's house to call the police. After she talked to the police, Mother took her to the hospital where she underwent an examination. Thereafter, Victim went to see Dr. Pritchard for another examination.

Victim was seen in the emergency room that same day and was examined following her complaint of sexual assault. Included with the sexual assault kit in the evidence turned over to law enforcement was Victim's underwear. Victim had an external vaginal and rectal exam at the emergency room, but because of her young age she was referred to “The Child's Place” for an internal examination. Nothing out of the ordinary was noted from her emergency room examination.

South Carolina Law Enforcement Division (SLED) Agent Kenneth L. Bogan, who was qualified as an expert in the field of DNA analysis, testified regarding his analysis of the various items submitted in regard to Victim's emergency room visit. Agent Bogan found no semen on the vaginal and rectal smears and swabs, but did find the presence of blood on the vaginal swab. Upon inspecting Victim's underwear, he observed what he believed to be a blood stain. A presumptive analysis for the presence of blood was positive. Agent Bogan proceeded to extract DNA from the underwear stain and found a mixture of DNA from two individuals, one being consistent with that of Victim and the other belonging to an unidentified male. Agent Bogan then requested a DNA standard from any likely suspects in the case. After receiving a known DNA standard in the form of buccal swabs from Chisholm, Agent Bogan made a comparison of Chisholm's DNA to the mixed sample taken from Victim's underwear, and determined the DNA profile from the unidentified male matched the DNA of Chisholm. Further analysis revealed there was semen present in the stain, and the DNA profile from the semen matched Chisholm's DNA profile.

Pediatrician Dr. Lyle Pritchard, who was qualified as an expert in child sexual assault examination, testified Victim was referred to her by law enforcement for a medical exam for possible child sexual abuse. Dr. Pritchard examined Victim on October 12, 2005. At that time, Victim complained of genital discomfort and pain. Child had a normal genital exam, but Dr. Pritchard stated this was common in cases where children had been sexually abused, particularly when there is a time lapse between the alleged trauma and her examination, as mucosal skin heals very quickly. Dr. Pritchard agreed that the records from the hospital indicated Victim had a normal exam on the day the allegations were reported, but explained the hospital did not use a special instrument for examination, called a the culpascope, in Victims' exam. Rather, the hospital personnel just looked at the skin on the outside of the bottom. Dr. Pritchard further testified she tested Victim for certain sexually transmitted diseases, and the HIV test came back positive. She noted that children can become HIV positive in three major ways: (1) from a congenital infection where the mother passes it on to the baby in utero or from the baby passing through the birth canal; (2) from a blood transfusion; or (3) from sexual contact. Dr. Pritchard noted Mother's HIV testing from her pregnancy with Victim and her pregnancy with Victim's younger brother were both negative, and found no history of Victim having a blood transfusion. Therefore, based on Victim's history of sexual contact and her positive HIV test, Dr. Pritchard diagnosed Victim with sexual abuse.

Finally, the State presented the testimony of Jean Banks, Greenwood County Health Department's administrative supervisor and the supervisor of medical records. Banks testified clients would have their blood drawn by a nurse at the Health Department, and it would then be sent by courier to the DHEC lab in Columbia where it is tested. The results are then sent from Columbia to a printer at the Health Department, where the results are printed out and maintained in a file at the Health Department. These records are kept by the Health Department in the normal course of business. The Health Department's records show Victim had her blood collected on October 21, 2005, which showed Victim was HIV positive, and Chisholm had his blood collected on November 14, 2005, and he likewise tested positive for HIV. Banks admitted she did not have the names of the nurse, courier, the person who ran the test, or anyone who handled the blood before testing. She stated, however, that DHEC had procedures in place in terms of handling, packaging and transporting to keep the blood samples straight.

ISSUES

1. Whether the State lacked probable cause to obtain oral swabs from Chisholm when there was insufficient evidence to establish that the blood found in Victim's underwear was the result of trauma caused by the alleged assault.

2. Whether the trial court erred in failing to exclude the HIV test results when no chain of custody was established.

3. Whether the trial court erred in failing to exclude HIV test results when the probative value of such evidence was substantially outweighed by the danger of unfair prejudice.

4. Whether the trial court erred in overruling defense counsel's motion for a mistrial after Dr. Pritchard testified that Victim told her Chisholm did something bad, because this testimony was improper hearsay.

STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). The admission or exclusion of evidence is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Winkler, 388 S.C. 574, 583, 698 S.E.2d 596, 601 (2010). An abuse of discretion occurs when the trial court's conclusions either lack evidentiary support or are controlled by an error of law. Id. “Similarly, whether to grant or deny a mistrial is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.” State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009). A mistrial should be granted only when absolutely necessary, and a defendant must show both error and resulting prejudice to be entitled to a mistrial. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000).

LAW/ANALYSIS

I. Probable Cause to Obtain Oral DNA Swabs

The record shows that in July 2007, the State sought an order requiring Chisholm to submit to a blood draw for the purpose of DNA comparison pursuant to section 17–13–140 of the South Carolina Code (2003). At a hearing before Judge Goldsmith on July 25, 2007, the State presented the testimony of Officer Vernon Peppers, who testified Mother reported finding Chisholm in a sexual situation with her six-year-old...