State v. Adams
| Decision Date | 20 May 2020 |
| Docket Number | Appellate Case No. 2017-001018,Opinion No. 5728 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Justin ADAMS, Appellant. |
Appellate Defender David Alexander, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, both of Columbia, and Solicitor Isaac McDuffie Stone, III, of Bluffton, all for Respondent.
Justin Adams appeals his conviction of first-degree criminal sexual conduct (CSC) with a minor, arguing the trial court erred in (1) denying his motion to exclude the victim's testimony and out-of-court interviews; (2) refusing to charge the jury on criminal intent; (3) refusing to charge the jury it had to be unanimous as to the specific act of sexual battery he committed; and (4) denying his motion for a new trial based on victim's mother's alleged violation of a sequestration order. We affirm.
In December 2013, victim disclosed to his maternal grandmother that Adams, his mother's fiancé, had touched him inappropriately. The grandmother called 911, and later that same day, Lieutenant Babkiewicz of the Bluffton Police Department met with and interviewed victim, who was then five years old. During the interview, which was video recorded, Babkiewicz told victim he wanted to be his "buddy"; made victim a junior officer and pinned a sticker badge on him; told victim his mother and others were watching the interview and the interview room had magical powers that would "zap" victim if he did not tell the truth (though he later assured victim he was joking); and gifted victim several stuffed animals. During the interview, victim alleged Adams had massaged his penis in the shower, placed his finger in victim's "butt," and placed his penis in victim's mouth.
The police referred victim to professional counselor Mary Beth Hefner, who interviewed victim four days after Babkiewicz. Victim recounted the alleged incidents, stating Adams had digitally penetrated victim's anus, massaged victim's penis, and performed oral sex with victim.
Adams was indicted for first-degree CSC with a minor. The indictment alleged that in 2013, Adams "did commit a sexual battery upon a minor who was less than eleven years of age, to wit: fellatio and/or digital intrusion of the victim's anal opening." Before his trial began, Adams sought to exclude victim's testimony and recorded interviews from evidence, contending victim's reliability had been removed by Babkiewicz's overbearing techniques. After a pretrial hearing that included testimony by Babkiewicz and Hefner, the trial court denied Adams' motion.
Babkiewicz and Hefner testified at trial, and their interviews of victim were played to the jury. The State also called grandmother, who relayed the disclosure. Victim's mother testified she worked a nighttime shift, and due to her work schedule, Adams and victim started taking showers together. There were times when Adams and victim were showering when she noticed the bathroom door had been locked. She also recalled victim once came out of the shower with an erect penis, and Adams acted strange and evasive when she asked about it. Victim, who was eight by the time of trial, testified that he would bathe with Adams, who would touch victim's penis and anal area. Victim did not, however, testify as to any oral sex.
Adams did not present evidence. After thorough inquiry, the trial court denied his request to charge the jury that they "must unanimously agree as to the exact act committed by the Defendant in violation of the statute before you can return a guilty verdict." The trial court also refused Adams' request to instruct the jury on criminal intent. The jury deliberated a little over an hour-and-a-half and found Adams guilty. Adams later moved for a new trial on the ground of after-discovered evidence, claiming victim's mother violated the consent sequestration order by attempting to listen to the trial through a courtroom door. After the trial court denied Adams a new trial, he filed this appeal.
We begin with Adams' claim that Babkiewicz's conduct destroyed victim's reliability, and the trial court therefore erred by not excluding victim's statements and testimony from evidence. Due process prevents the State from using evidence so unreliable it offends fundamental conceptions of justice and ordered liberty. Perry v. New Hampshire , 565 U.S. 228, 237, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). Subject to the reliability check due process guarantees, evidence rules, common law rules, and statutes govern the admissibility of evidence, and the jury determines the credibility of admitted evidence. Id. Our rules of evidence deem hearsay inadmissible, subject to exceptions. See Rule 802, SCRE. Section 17-23-175 of the South Carolina Code (2014) carved out an exception to the hearsay rule in CSC cases that allows admissibility of an out-of-court statement of a child victim who was under twelve years old at the time the statement was made if: (1) the statement was made during an investigative interview, (2) the statement was preserved by an audio or video recording, (3) the child testifies at trial and is subject to cross-examination on the offense and the making of the statement, and (4) the court finds "in a hearing conducted outside the presence of the jury, that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness." § 17-23-175(A), (C). In determining if a statement has "particularized guarantees of trustworthiness," the trial court may consider whether (1) the statement was obtained through leading questions, (2) the interviewer is trained to interview children, (3) the statement constitutes "a detailed account of the alleged offense," (4) the statement is coherent, and (5) "sworn testimony of any participant which may be determined as necessary by the court." § 17-23-175(B).
Adams models his challenge to the victim's reliability on State v. Michaels , 136 N.J. 299, 642 A.2d 1372, 1379–80 (1994), where a day care worker appealed her convictions of numerous counts of child sexual assault and abuse. The New Jersey Supreme Court found the repeated interviews of the thirty-four children so coercive as to risk the reliability of the testimony they produced. The untrained interviewers used practices disfavored by experts, lacked impartiality and objectivity, and interviewed the children repeatedly over the course of several years. Id. at 1380. The interviewers employed blatantly suggestive and improper techniques, including threats, bribes, and making the children junior detectives.
Id. at 1379–80. The court determined that to safeguard the defendant's right to a fair trial, a pre-trial taint hearing needed to be held to decide if the interviews "so infected the ability of the children to recall the alleged abusive events that their pretrial statements and in-court testimony based on that recollection are unreliable and should not be admitted into evidence." Id. at 1380.
We conclude the reliability concerns Adams raises based on Michaels were satisfied here by the witness competency standard and within the framework of § 17-23-175, which in essence requires a pre-trial taint hearing. The thoughtful trial court held such a hearing, applied the criteria of the statute to the evidence, and its ruling admitting the interviews and testimony reflects sound discretion. Fields v. Reg'l Med. Ctr. Orangeburg , 363 S.C. 19, 25–26, 609 S.E.2d 506, 509 (2005) ().
Victim's interview with Hefner was admissible pursuant to § 17-23-175 because it was video recorded, victim testified at trial subject to cross-examination, and the circumstances of the interview provided particularized guarantees of trustworthiness. Hefner was trained to interview children, and she did not ask leading questions. Victim gave a detailed and coherent account of the alleged offenses, specifying Adams touched his "wacker" and put his finger in victim's anus while in the bathroom.
Victim's interview with Babkiewicz likewise met the § 17-23-175 standards. Victim provided a detailed and coherent account of the alleged offense. We acknowledge Babkiewicz's lack of training in interviewing children and his dubious techniques, but the interview was not inherently unreliable. For example, victim's initial statement to Babkiewicz about Adams touching his "wacker" was not made in response to a leading question.
We also find victim, who was eight at the time of trial, was competent to testify despite his young age because he could express himself in a way the jury could understand, and he understood the concept of the truth and his duty to tell the truth. See Rule 601(A), SCRE (); Rule 601(B), SCRE (); see also State v. Lambert , 276 S.C. 398, 401, 279 S.E.2d 364, 365 (1981) (). Therefore, we find the court properly admitted victim's testimony at trial, where the jury was able to gauge victim's credibility in light of Adams' counsel's thorough airing of Babkiewicz's questionable methods.
Adams next claims the trial court erred by not instructing the jury that criminal intent was an element of the offense of CSC with a minor in the first-degree, S.C. Code Ann. § 16-3-655 (2015). In requesting the intent charge, Adams pointed out the...
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