In re Oxner

Decision Date06 May 2020
Docket NumberAppellate Case No. 2016-001125,Opinion No. 5725
Citation846 S.E.2d 365,430 S.C. 555
CourtSouth Carolina Court of Appeals
Parties In the MATTER OF the CARE AND TREATMENT OF Francis Arthur OXNER, Appellant.

Allen Mattison Bogan and Blake Terence Williams, both of Nelson Mullins Riley & Scarborough, LLP, and Chief Appellate Defender Robert Michael Dudek and Appellate Defender David Alexander ; all of Columbia, for Appellant.

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

MCDONALD, J.:

Francis A. Oxner appeals the circuit court's order requiring him to submit to an evaluation under the Sexually Violent Predator Act1 (the Act), arguing the circuit court erred in finding he meets the definition of a person "convicted of [a] violent offense" for purposes of the Act. He further contends the lapse of time between the State's filing of its petition for Oxner's evaluation as a sexually violent predator and the hearing on the State's petition constituted an unconstitutional delay. Finally, Oxner asserts the circuit court's conducting of the hearing while he was incompetent to stand trial violated his right to procedural due process. We affirm.

Facts and Procedural History

In 1984, Oxner was arrested for assault with intent to kill and driving without a license. Oxner was diagnosed with schizophrenia while hospitalized at the South Carolina State Hospital; he was subsequently found incompetent to stand trial. The record does not indicate when Oxner was released.

On December 11, 2004, Oxner's ten-year-old great-nephew (Victim 1) reported to the Lexington County Sheriff's Department (LCSD) that Oxner had forced him to engage in oral sex on multiple occasions. After arresting Oxner for criminal sexual conduct (CSC) with a minor, investigators learned of other instances of abuse, including acts Oxner committed against his niece (Victim 2) when she was seven years old. Victim 2 is Victim 1's mother.

In March 2005, the Lexington County grand jury indicted Oxner for several offenses: a February 2005 assault with intent to commit first degree CSC upon a boy under the age of eleven; a January 2005 first degree CSC with a minor for committing a sexual battery upon a boy under the age of eleven; a January 2005 "exposure of private parts in [a] lewd and lascivious manner" for exposing his genitals to a fourteen-year-old girl; an assault with intent to commit a sexual battery upon a seven-year-old girl alleged to have occurred between August 1, 1979, and June 1, 1980; and a 1980 offense of buggery with a pony.

On April 18, 2005, psychiatrist Richard Frierson evaluated Oxner to determine his competence to stand trial. Dr. Frierson opined Oxner was incompetent but "likely to become fit to stand trial in the foreseeable future." Following a hearing, the circuit court found Oxner incompetent, but the court's June 2005 order noted Oxner might become competent in the future. The circuit court ordered that Oxner remain hospitalized and receive treatment for up to sixty days in an effort to restore competence. This effort was unsuccessful, and in a subsequent order, the circuit court found Oxner incompetent to stand trial and not likely to become competent in the future. Thus, in December 2005, Oxner's charges were nolle prossed , and he was admitted to the South Carolina Department of Mental Health's (DMH) secure inpatient forensic unit for treatment. Each year following Oxner's 2005 admission, the probate court has ordered that Oxner be involuntarily committed to an inpatient state mental health facility.

On March 16, 2011, the probate court ordered Oxner to participate in an outpatient treatment program at a mental health facility for up to twelve months.

In early 2011, Oxner's DMH treatment team recommended he be discharged from the forensic unit to a structured residential care facility and referred Oxner to a multidisciplinary team for a determination of whether Oxner was a sexually violent predator. The multidisciplinary team determined Oxner met the statutory definition of a sexually violent predator and referred him to the prosecutor's review committee. The prosecutor's review committee determined there was probable cause to believe Oxner was a sexually violent predator, and on July 5, 2011, the State petitioned the circuit court for a probable cause determination.

In August 2011, the circuit court found probable cause existed to believe Oxner met the Act's criteria for a sexually violent predator. The circuit court determined the proceedings were subject to Section 44-48-100(B) of the South Carolina Code because Oxner had been found incompetent to stand trial. Section 44-48-100(B) provides:

If the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released and the person's commitment is sought pursuant to subsection (A), the court first shall hear evidence and determine whether the person committed the act or acts with which he is charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, apply. After hearing evidence on this issue, the court must make specific findings on whether the person committed the act or acts with which he is charged; the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person committed the act or acts with which he is charged, the court must enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter.

S.C. Code Ann. § 44-48-100(B). The circuit court ordered:

A hearing shall be held before the Court within 72 hours after Respondent [Oxner] has been taken into custody, if he is not already in custody, to require the State to prove the elements of the criminal offenses for which Respondent has been charged, as provided for in S.C. Code Ann. Section 44-48-100(B) ... and thereafter to contest whether probable cause exists to order that Respondent remain in custody and be evaluated by an appointed expert.

The circuit court also ordered the Lexington County clerk of court to appoint counsel for Oxner. Oxner's appointed counsel filed a discovery request on September 20, 2011, but other than this, the record is silent as to any progress on the State's petition until early 2014.

In March 2014, the Lexington County grand jury reindicted Oxner for assault with intent to commit CSC with a minor in the first degree for acts against Victim 2 alleged to have occurred from August 1, 1979 through June 1, 1980.

In May 2014, the circuit court ordered that Oxner be evaluated for competence. On September 8, 2014, Dr. Frierson again evaluated Oxner and opined Oxner lacked the capacity to stand trial and was "unlikely to gain the capacity to stand trial in the foreseeable future." Dr. Frierson noted the probate court had continued to order Oxner's commitment each year since his initial commitment in 2005.

In November 2015, the Lexington County grand jury reindicted Oxner for sexual battery upon a minor less than eleven years old for acts against Victim 1 alleged to have occurred "on or about the Summer of 2004." In September 2015, the circuit court appointed new counsel for Oxner.

On April 21, 2016, the circuit court held a § 44-48-100(B) evidentiary hearing; Victim 1, Victim 2, and LCSD Lieutenant Eric Russell testified. The circuit court found "beyond a reasonable doubt" that Oxner committed CSC with a minor, first degree, upon Victim 1 and assault with intent to commit CSC with a minor, first degree, upon Victim 2. After setting forth additional findings required by the statute, the circuit court held "probable cause exists to have [Oxner] evaluated under the Act to determine whether or not he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care and treatment."

Standard of Review

"Questions of statutory interpretation are questions of law, which we are free to decide without any deference to the court below." Buchanan v. S.C. Prop. & Cas. Ins. Guar. Ass'n , 424 S.C. 542, 547, 819 S.E.2d 124, 126 (2018) (quoting S.C. Prop. & Cas. Ins. Guar. Ass'n v. Brock , 410 S.C. 361, 365, 764 S.E.2d 920, 922 (2014) ); see also In re Manigo , 398 S.C. 149, 157, 728 S.E.2d 32, 35 (2012) ("Statutory interpretation is a question of law subject to de novo review." (quoting Transp. Ins. Co. v. S.C. Second Injury Fund , 389 S.C. 422, 427, 699 S.E.2d 687, 689 (2010) )).

Law and Analysis
I. Statutory Definition

Oxner argues this action must be dismissed because when the State filed the SVP petition, the sexually violent offenses for which Oxner was indicted had been nolle prossed . Thus, without a pending charge for a sexually violent offense, the State could not satisfy the statutory prerequisite that Oxner was a person who "had been charged" but determined to be incompetent to stand trial for a sexually violent offense. We disagree.

"The cardinal rule of statutory interpretation is to determine the intent of the legislature." Jones v. State Farm Mut. Auto. Ins. Co. , 364 S.C. 222, 230, 612 S.E.2d 719, 723 (Ct. App. 2005). "What a legislature says in the text of a statute is considered the best...

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4 cases
  • In re Griffin
    • United States
    • South Carolina Court of Appeals
    • 21 Julio 2021
    ...interpretation are questions of law, which we are free to decide without any deference to the court below." In re Oxner , 430 S.C. 555, 561, 846 S.E.2d 365, 369 (Ct. App. 2020) (quoting Buchanan v. S.C. Prop. & Cas. Ins. Guar. Ass'n , 424 S.C. 542, 547, 819 S.E.2d 124, 126 (2018) ).LAW/ANAL......
  • In re Oxner
    • United States
    • South Carolina Supreme Court
    • 21 Junio 2023
    ...44-48-100(B) hearing in 2016. The court of appeals declined to address this issue, holding the issue was unpreserved. 430 S.C. at 565-66, 846 S.E.2d at 371. While we are troubled by this unexplained and unnecessary delay, we agree with the court of appeals. Oxner did not raise the timelines......
  • State v. Singleton
    • United States
    • South Carolina Court of Appeals
    • 6 Mayo 2020
  • Smith v. Koon
    • United States
    • U.S. District Court — District of South Carolina
    • 2 Septiembre 2021
    ... ... must be terminated “for reasons indicative of the ... innocence”) ... A ... nolle prosequi dismissal does not “bar further ... prosecution for the same offense” Matter of Care ... & Treatment of Oxner, 430 S.C. 555, 564 (Ct. App ... 2020), because it is not an adjudication on the merits ... Mackey v. State, 357 S.C. 666, 669 (2004). Instead, ... it “extinguishes the State's prosecution upon those ... charges.” Id. Defendant's argument thus ... suggests any ... ...
1 books & journal articles
  • Rule 59. New Trials; Amendment of Judgments
    • United States
    • South Carolina Rules Annotated (SCBar) (2021 Ed.) VII. Judgment
    • Invalid date
    ...been raised to the circuit court, but not ruled upon, a party must file a Rule 59(e), SCRCP motion." Matter of Care & Treatment of Oxner, 430 S.C. 555, 566, 846 S.E.2d 365, 371 (Ct. App. 2020), reh'g denied (Aug. 24, 2020). A party cannot raise an issue for the first time in a Rule 59(e), S......

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