In re Bilton

• Court: Court of Appeals of South Carolina
• Citation: 851 S.E.2d 442,432 S.C. 157
• Decision Date: 14 October 2020
• Docket Number: Appellate Case No. 2017-001464,Opinion No. 5775
• Parties: In the MATTER OF the Care and Treatment of Micah A. BILTON, Appellant.

432 S.C. 157
851 S.E.2d 442

In the MATTER OF the Care and Treatment of Micah A. BILTON, Appellant.

Appellate Case No. 2017-001464
Opinion No. 5775

Court of Appeals of South Carolina.

Heard June 16, 2020
Filed October 14, 2020
Rehearing Denied December 22, 2020

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, and Senior Assistant Deputy Attorney General Deborah R.J. Shupe, both of Columbia, for Respondent.

HEWITT, J.:

432 S.C. 160

The State called one witness during Micah Allen Bilton's trial for civil commitment as an alleged sexually violent predator. That witness—a forensic psychologist—was permitted to testify as an expert regarding a controversial test performed on Bilton she neither administered nor observed. She also shared the test results with the jury.

The witness had not reviewed the raw data the test produced. She also did not know whether the full testing protocol used on Bilton had been peer-reviewed. The expert explained she had confidence in the lab that had performed the test and she saw no basis for questioning its results. She used these test results as part of the basis, but not the sole basis, of her opinion that Bilton was a sexually violent predator.

Bilton lodged several objections to this evidence, but we deal only with his argument that the testifying psychologist served as a "conduit" that improperly allowed the jury to consider the out-of-court test, which was inadmissible hearsay, with no baseline demonstration that the test was reliable. We agree. Thus, we reverse Bilton's adjudication as a sexually violent predator and remand for a new trial.

432 S.C. 161

FACTS

Bilton molested his four-year-old stepsister when he was fifteen and his six-year-old niece when he was seventeen. The first incident resulted in a guilty plea to assault and battery of a high and aggravated nature. The second resulted in a guilty plea to criminal solicitation of a minor.

The State subsequently brought this action seeking Bilton's civil commitment under the Sexually Violent Predator Act. That act is codified at sections 44-48-10 through 44-48-170 of the South Carolina Code (2018). The trial on this civil charge occurred in June 2017. Bilton was twenty-two.

At the start of trial, Bilton moved in limine to prohibit Dr. Amy Swan—the court-appointed evaluator and the State's sole expert—from testifying about a penile plethysmograph or "PPG" test that a third party performed on Bilton at Dr. Swan's request. After a proffer of Dr. Swan's testimony, the circuit court ruled there was a sufficient foundation for her testimony's admission.

When she testified to the jury, Dr. Swan explained that although this PPG documented Bilton's greatest level of sexual arousal was to adult women in a consensual encounter, the test also showed Bilton demonstrated "deviant arousal," the most significant of which was to teen females in a coercive or rape scenario. Dr. Swan also said the test revealed Bilton was aroused in varying scenarios by preschool females, preschool males,

851 S.E.2d 444

grammar school females, and teenage males. Dr. Swan said sexual interest in children, as measured by the PPG, is "the one factor that carries the highest risk for committing another sexual crime."

ISSUE

Whether the trial court erred in allowing Dr. Swan to testify regarding the PPG test results.

STANDARD OF REVIEW

The standard of review for evidentiary rulings is very deferential. "The admission or exclusion of evidence is a matter within the trial court's sound discretion, and an appellate court may only disturb a ruling admitting or excluding evidence upon a showing of a ‘manifest abuse of discretion accompanied by probable prejudice.’ "

432 S.C. 162

State v. Commander , 396 S.C. 254, 262–63, 721 S.E.2d 413, 417 (2011) (quoting State v. Douglas , 369 S.C. 424, 429, 632 S.E.2d 845, 848 (2006) ). "An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." State v. Pagan , 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).

ANALYSIS

We begin by briefly discussing the statutory law and the test in question before addressing the parties' arguments. The Sexually Violent Predator Act provides that once a court determines there is probable cause, the court must appoint a qualified expert to evaluate whether a particular person is a sexually violent predator. See S.C. Code Ann. § 44-48-80(D) (2018). Here, that evaluator—Dr. Swan—ordered Bilton to undergo a PPG test as part of her evaluation. Another person—either Dr. William Burke or someone working at his facility—performed the PPG.

The PPG measures changes in blood flow to the male sex organ while the test subject views a series of visual and auditory stimulants corresponding to different ages, genders, and scenarios. Certain levels of increased blood flow are associated with arousal.

The test is controversial and has been criticized for a lack of standardization and for being subject to manipulation. See United States v. Rhodes , 552 F.3d 624, 626–27 (7th Cir. 2009) ; United States v. Weber , 451 F.3d 552, 565 (9th Cir. 2006). It has also been criticized as Orwellian when, as here, the State compels the subject to arouse himself sexually and then forces him to view deviant stimulants so the State can get a sense of the person's pre-dispositions and, potentially, use those pre-dispositions against him. Weber , 451 F.3d at 571–72 (Noonan, J., concurring).

Courts have noted that PPGs are routinely used as a tool in treatment programs. Weber , 451 F.3d at 562–63 (citing Berthiaume v. Caron , 142 F.3d 12, 16 (1st Cir. 1998) ). Even so, with limited exceptions we will discuss later, courts have "uniformly" declared that PPG test results are "inadmissible as evidence because there are no accepted standards for this test in

432 S.C. 163

the scientific community." Doe ex rel. Rudy-Glanzer v. Glanzer , 232 F.3d 1258, 1266 (9th Cir. 2000).

Bilton frames his challenge as based on due process. He relies chiefly on the fact that Dr. Swan testified regarding the PPG results even though she did not administer the PPG, observe the test's administration, or review the raw data the test generated. Bilton also relies on Dr. Swan's testimony that she did not know whether the set of stimulants Dr. Burke used in Bilton's PPG had been peer-reviewed. Bilton correctly notes that our decision in State v. McCray prohibits one expert from serving as a "conduit" for a non-testifying expert's testimony. 413 S.C. 76, 773 S.E.2d 914 (Ct. App. 2015). He says that is what Dr. Swan did here.

The State contends it was appropriate for Dr. Swan to rely on Dr. Burke's work because, as an expert, Dr. Swan is permitted to rely on facts or data that are not themselves admissible in evidence as long as the facts or data are of the type reasonably relied on by experts in the field. See Rule 703, SCRE. The State relies chiefly on the fact that the Fifth Edition of the Diagnostic and Statistical Manual (DSM-V)—a publication recognized as authoritative—mentions the PPG as the most thoroughly researched method for providing a physiological indication of someone's sexual attractions and as the method that has been most extensively used to do so. The State also notes Dr. Swan's testimony

851 S.E.2d 445

that she was familiar with Dr. Burke's work, that Dr. Burke uses the same stimulus sets in every PPG test, and that Dr. Burke did not include any notations regarding quality control problems in the report from Bilton's test.

If this was a criminal case, the error would not be debatable. Our decision in McCray would be directly on point, as would the U.S. Supreme Court's decisions in Melendez-Diaz v. Massachusetts¹ and Bullcoming v. New Mexico .² These cases prohibit a testifying expert from acting as a "conduit" or "surrogate" for someone else's scientific analysis. Yet, those cases turned on the Sixth Amendment and its Confrontation Clause. We did not find any authority applying the Confrontation

432 S.C. 164

Clause to civil...