State v. Acker, Appellate Case No. 2016-002368

• Court: Court of Appeals of South Carolina
• Writing for the Court: MCDONALD, J.
• Citation: 435 S.C. 716,869 S.E.2d 873
• Parties: The STATE, Respondent, v. Thomas Stephen ACKER, Appellant.
• Docket Number: Appellate Case No. 2016-002368,Opinion No. 5892
• Decision Date: 19 January 2022

435 S.C. 716
869 S.E.2d 873

The STATE, Respondent,
v.
Thomas Stephen ACKER, Appellant.

Appellate Case No. 2016-002368
Opinion No. 5892

Court of Appeals of South Carolina.

Heard October 10, 2019
Filed January 19, 2022
Rehearing Denied March 25, 2022

Appellate Defenders Adam Sinclair Ruffin and Kathrine Haggard Hudgins, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General William M. Blitch, Jr., Assistant Attorney General Susan Ranee Saunders, and Assistant Attorney General Jonathan Scott Matthews, all of Columbia; and Solicitor Barry Joe Barnette, of Spartanburg; all for Respondent.

MCDONALD, J.:

869 S.E.2d 876

435 S.C. 721

Thomas Stephen Acker appeals his convictions for first-degree criminal sexual conduct (CSC) with a minor and disseminating obscene material to a minor, arguing the circuit court abused its discretion in (1) admitting expert testimony addressing the behavioral characteristics of child sexual abuse victims and (2) admitting his statement regarding a pornography addiction. Acker further contends the circuit court erroneously denied his motion for a directed verdict on the dissemination charge. We affirm.

Facts and Procedural History

During the summer of 2014, Child's parents sent her to a counselor in response to her depression and because she was intentionally cutting herself. During her counseling sessions,

435 S.C. 722

Child disclosed that Acker, her grandmother's (Grandmother) ex-husband, sexually abused her at Acker and Grandmother's home, which she visited often after school when she was five years old.¹ Her parents filed a police report, and Child was referred to the Children's Advocacy Center, where she underwent a forensic interview. During the interview, Child recounted that the sexual abuse at Grandmother's house began when she was in kindergarten and lasted until she was eight or nine years old.

Child testified at trial that while she was at Grandmother's house, Acker touched her inappropriately, made her touch his genitals, exposed himself, and masturbated in front of her.² Acker told Child he would kill Grandmother if she told anyone about the abuse and that no one would believe her. Additionally, Child testified Acker showed her pornography on his computer while holding her in a chokehold and telling her, "You need to grow up and be like that and people will love you if you're like that." Such conduct happened on more than one occasion and occurred until she was seven years old.

Grandmother and Acker were married for five years; they divorced in July 2008. The two remained in contact after their divorce, and Acker contacted Grandmother through emails and letters and by showing up at her job. Grandmother noted Acker mentioned pornography in one of his letters and admitted he had been addicted to pornography for fifty-two years.

After the State presented its case, Acker moved for a directed verdict, which the circuit court denied. Thereafter, Acker testified he and Grandmother lived at his house during their five-year marriage. Acker worked from home in an office at the front of the house while Grandmother worked in an office in the back. Acker denied abusing Child and testified he never showed her anything on his computer nor put her in a chokehold. He admitted he told Grandmother he "had had some problems, but it [was] not entirely pornography" and claimed he never showed anyone else pornography in his home.

435 S.C. 723

On cross-examination, when asked if he had an addiction to pornography, Acker responded that he "had some contact with pornography from early ages" and acknowledged he told Grandmother he had been addicted to pornography for fifty-two years, including the years of the alleged abuse. However, Acker testified there was no truth to Child's allegations of abuse, claiming, "[t]hey are all fantasy tales that she dreamed up."

The jury convicted Acker of first-degree CSC with a minor and disseminating obscene material to a minor twelve years of age or younger. The circuit court sentenced him to twenty years' imprisonment on the CSC conviction and a concurrent five years on the dissemination charge, with credit given for time served.

869 S.E.2d 877

Standard of Review

"In criminal cases, the appellate court sits to review errors of law only." State v. Wilson , 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). Therefore, appellate courts are "bound by the trial court's factual findings unless they are clearly erroneous." Id., 345 S.C. at 6, 545 S.E.2d at 829. "The admission or exclusion of evidence is a matter addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of a manifest abuse of discretion accompanied by probable prejudice." State v. Kromah , 401 S.C. 340, 349, 737 S.E.2d 490, 494-95 (2013) (quoting State v. Douglas , 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006) ). "An abuse of discretion occurs when the conclusions of the circuit court are either controlled by an error of law or are based on unsupported factual conclusions." State v. Chavis , 412 S.C. 101, 106, 771 S.E.2d 336, 338 (2015).

Law and Analysis

I. Expert Testimony

Acker argues the circuit court erred in admitting Shauna Galloway-Williams's testimony on risk factors, grooming, and the behaviors displayed by child sexual abuse victims because her testimony did not provide information outside the ordinary knowledge of the jury and did not assist the jury in understanding the evidence or determining a fact in question. Acker asserts that although Galloway-Williams testified there was a

435 S.C. 724

unique set of characteristics associated with victims of child sexual abuse, she failed to identify these specific characteristics. We disagree.

During an in camera hearing, Galloway-Williams testified she is the executive director of the Julie Valentine Center, where she provides clinical supervision and interviewed child victims.³ She is a licensed professional counselor who has provided counseling for children and adults for fifteen years, and has over 150 hours of skills-based training, specifically in the area of interviewing and assessing children regarding allegations of child maltreatment. Although she is a clinician and had not published articles at the time of her testimony, she was familiar with publications in the field as she attended trainings based on peer-reviewed articles and continues to read peer-reviewed material in her continuing education. At the time of this trial, Galloway-Williams had testified as an expert thirty-six times.

Galloway-Williams explained the field of child sex abuse dynamics includes issues common to child sexual abuse cases, such as delayed disclosure, grooming, false allegations, false denials, risk factors, and the behaviors children can demonstrate when they have been sexually abused. There are unique characteristics associated with how children disclose abuse, how they react to abuse, and how offenders abuse children, and these can be counterintuitive to what people believe normal reactions should be. Galloway-Williams testified that children delay disclosing abuse for several reasons, including: they are usually abused by someone they know, trust, and love; they fear what could happen to them and others if they report their abuse; they feel responsible, guilty, or ashamed about the abuse; they may be unable to articulate the abuse depending on their age; and they may have been threatened by their abuser. A majority of the cases Galloway-Williams had been associated with involved delayed disclosure, and there are common factors attributable to this phenomenon.

Regarding the reliability of her testimony, Galloway-Williams stated she would testify based on her experience, education, and training. Research in the field has been based

435 S.C. 725

on case studies involving known abuse in an ongoing effort to consider behavioral similarities among abused children. As to the question of scientific reliability, Galloway-Williams noted clinicians in her field cannot seek to replicate results because one cannot expose children to abuse conditions for testing purposes. Her field is a "soft science" based on "longitudinal studies, case studies, actual cases and reviewing those and looking

869 S.E.2d 878

at the similarities or differences in those and based on that type of research." A study in this area might "look at a certain number of cases of children where there's known sexual abuse ..., and they may look at all of those cases and determine if there is a specific condition that's similar among those cases, for instance." When asked if she was aware of any research or cases that had found a delayed disclosure unreliable, she acknowledged there had been times when a child made a delayed disclosure and then, following an interview or...