In re Michael H.

• Decision Date: 16 September 2002
• Docket Number: No. 25529.,25529.
• Citation: 602 S.E.2d 729,360 S.C. 540
• Court: South Carolina Supreme Court
• Parties: In the Interest of MICHAEL H., a minor under the age of seventeen years, Respondent.

360 S.C. 540

602 S.E.2d 729

In the Interest of MICHAEL H., a minor under the age of seventeen years, Respondent.

No. 25529.

Supreme Court of South Carolina.

Heard July 23, 2002.

Decided September 16, 2002.

Reheard December 3, 2002.

Refiled August 30, 2004.

Rehearing Denied October 6, 2004.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Melody J. Brown, all of Columbia, for Petitioner.

Tara D. Shurling, of Columbia, for Respondent.

J. David Flowers, of Greenville, and Gregg E. Meyers, of Charleston, both for the South Carolina Victim's Assistance Network, Amicus Curiae.

Justice BURNETT:

The State petitioned for review of the Court of Appeals' decision reversing Michael H.'s ("Respondent") juvenile conviction for criminal sexual conduct ("CSC") with a minor. We issued an opinion in this case in September 2002. In the Interest of: Michael H., a minor under the age of seventeen years, Op. No. 25529, 2002 WL 31051575 (S.C. Sup.Ct. filed September 16, 2002). Subsequently, we granted the State's petition for rehearing and a motion by the South Carolina Victim's Assistance Network to file an amicus brief. After rehearing this case, we withdraw our previous opinion and substitute this opinion.

FACTUAL/PROCEDURAL BACKGROUND

Respondent was charged, by juvenile petition filed in Lexington County family court, with CSC in the first degree, kidnapping, and CSC with a minor. Respondent is the complainant's uncle, although he is only eight years older than the complainant. At the time of the alleged assault, Respondent was twelve or thirteen years old and the complainant was four or five years old. Due to premature birth and complications, Respondent is developmentally impaired and exhibits a maturity level below others his age.¹ The complainant often spent time at Respondent's house (the home of complainant's paternal grandmother) where Respondent, his younger brother, and complainant played together and also took baths and showers together when complainant spent the night.² It was during one of these showers that the complainant claimed Respondent "raped" him.

The allegation arose in March 1999, in response to a story on the local news about a man arrested for indecent exposure. The complainant's mother testified the complainant saw the report and asked her why the man had "robbed" the children. The mother responded that the man had not "robbed" the children but had "raped" the children, and then explained to her son what rape was. The complainant's mother testified she told her son that rape of a boy "would be if someone was to touch him in an area that was covered by his swimsuit or his underwear, if someone was to touch his penis or play with his penis, or someone may try and stick [his] penis or something into his behind." Upon hearing this explanation, the complainant's mother said her son's expression changed, and he told her, "well, [Respondent's] done that to me before."

Complainant's mother then testified she asked her son when and where this happened, and he responded it had happened a while ago when he was in the shower with Respondent. Complainant's mother called her mother-in-law, Respondent's mother, to inform her of her son's accusation. Respondent spoke with complainant's mother, and denied ever having done anything like that to the complainant.

The complainant's mother filed a report with the police and took complainant to the Lexington County Children's Center where a rape protocol was performed and counseling began. The doctor performing the rape protocol found no evidence of sexual assault but testified this was not unusual with anal rape after significant time had passed. Complainant's counselor, Dr. Lake, a clinical psychologist, testified she believed Respondent had sexually assaulted victim.³ During cross-examination of Dr. Lake, Respondent's counsel discovered he had not received notes from the complainant's last four sessions with Dr. Lake. Respondent asked the judge for time to review them and then completed his cross-examination. In these last four sessions, complainant reported he had been hearing voices in his head for some time. Complainant told Dr. Lake he began hearing the voices of two men on his fourth birthday, and they continued until a month or so before trial. Complainant told Dr. Lake the voices told him to say mean things to his friends and to hurt them, and that the voices told him he should have raped Respondent like Respondent had raped him.

Dr. Lake thought the voices might be auditory hallucinations and suggested to complainant's mother that he see a physician or a psychiatrist for diagnosis or treatment. Dr. Lake's notes reflected, however, that the voices stopped shortly before trial. Dr. Lake attributed this change to medication complainant began taking for attention-deficit and hyperactivity. The complainant never saw a physician or a psychiatrist about the voices.

Prior to the hearing, Respondent filed a motion to have complainant submit to a psychological evaluation. Apparently that motion was denied. Following Dr. Lake's testimony, Respondent moved again to have complainant submit to a psychological evaluation based on the revelation that complainant had been hearing voices during the period of time he alleged the assault occurred. That motion was denied. Respondent's counsel also moved to have the complainant's testimony stricken as incompetent, based on the report of hearing voices. That motion was denied as well.

At trial, complainant testified Respondent raped him, explaining, in his own words, that Respondent "stuck his penis up my butt." Respondent also testified at trial and denied he had sexually assaulted the complainant in any way.

The trial judge granted Respondent's motion for directed verdict on the first degree CSC and kidnapping charges based on insufficient evidence but found Respondent guilty of CSC with a minor and ordered him committed to the Department of Juvenile Justice ("DJJ") until his twenty-first birthday. Respondent appealed and the Court of Appeals reversed and remanded for a new trial. In the Interest of Michael H., Op. No. 02-UP-050 (S.C. Ct.App. filed January 18, 2002).

The State then filed a Petition for Rehearing and Suggestion for Rehearing En Banc. In response, Respondent filed a Petition for Appeal Bond or in the Alternative for Writ of Supersedeas. The Court of Appeals denied the Petition for Rehearing but granted Respondent's Petition for Appeal Bond.

Subsequently, the State petitioned this Court for a stay of the Court of Appeals' order granting bond and for supersedeas. Justice Moore denied the petition on behalf of the Court on the ground that the Court of Appeals' order was not appealable. On the same day, the family court set the conditions of the bond.

We granted the State's petition for a writ of certiorari to address the following issues:

I. Did the Court of Appeals err in holding that the family court judge abused his discretion in failing to order the victim to submit to a psychological examination?

II. Did the Court of Appeals act beyond its jurisdiction when it granted Respondent's Appeal Bond?

LAW/ANALYSIS

I. Psychological Examination

The State argues the Court of Appeals erred in holding that the family court judge abused his discretion in failing to order the child victim to submit to a psychological examination. We disagree.

As a preliminary matter, the State argues that this issue is not preserved for review. The State asserts trial counsel's complaint was grounded in perceived discovery violations concerning the notes of Dr. Lake that had not been turned over to him. We disagree. Important information regarding the mental health of the child victim was uncovered in Respondent's cross-examination of Dr. Lake. At the close of the State's case, Respondent moved for a psychological evaluation based on this evidence. Obtaining the psychological evaluation, not pursuing the discovery violation, was the primary objective of Respondent's motion. "Now we'd move, for one, to have this child go through a psychological evaluation prior to continuing with this case because, based upon testimony we've heard and what we've been given today, it's highly likely that some voice told [victim] to say [Respondent] did this."

An issue may not be raised for the first time on appeal. In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court. Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998). In other words, the trial court must be given an opportunity to resolve the issue before it is presented to the appellate court. Toal, Vafai, & Muckenfuss, Appellate Practice in South Carolina, at 66 (S.C. Bar 1999). In this case, Respondent's counsel raised the issue before trial, and then again during trial, at which point the trial judge denied the motion to have the victim submit to a psychological examination.

Whether a court has the authority to order a victim in a sexual assault prosecution to submit to a psychological examination is an issue of first impression in South Carolina. There is a split of authority in other jurisdictions as to whether a court has the power to order a victim to submit to a psychological examination and then, if so, under what circumstances. Some jurisdictions give the trial judge discretion to order a victim to submit to a psychological evaluation when the defendant can show a compelling need for such an evaluation. The trial court's denial or grant of the defendant's request is then reversed only if the trial judge abused his discretion. Pickens v. State, 675 P.2d 665 (Alaska App.1984); Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000); State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994); Forbes v. State, 559 S.W.2d 318 (Tenn.1977); State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992).⁴ In Delaney, the ...