State v. Douglas, 4075.

• Decision Date: 23 January 2006
• Docket Number: No. 4075.,4075.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. William R. DOUGLAS, Appellant.

626 S.E.2d 59

The STATE, Respondent, v. William R. DOUGLAS, Appellant.

No. 4075.

Court of Appeals of South Carolina.

Heard January 10, 2006.

Decided January 23, 2006.

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Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General David Spencer, all of Columbia; and Solicitor C. Kelly Jackson, of Sumter, for Respondent.

ANDERSON, J.:

William R. Douglas (Douglas) was convicted of committing a lewd act upon a minor and sentenced to twelve years. On appeal, Douglas argues the trial court erred in admitting the testimony of Gwen L. Herod as an expert in forensic interviewing and in disallowing the testimony of Amelia Douglas that the victim lied to her in the past. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In February of 2003, Cathryn Douglas and her daughter (the victim) talked about "the birds and the bees." Cathryn told the victim "about sex, [the] difference between [a] man and woman . . ., and not to do things with the man and if a man was to touch her for her to come out and say." At that time, the victim informed Cathryn that Douglas, Cathryn's husband, had "done that to her." The victim advised Cathryn that Douglas had touched her inappropriately during the summer and fall of 2002, when she was seven years old. Cathryn called the victim's grandmother, with whom the victim lived. The victim told her grandmother what occurred. Victim's grandmother notified the Sumter County Sheriff's Department.

On February 10, 2003, Officer Doris McGee, the investigator assigned to the case, contacted the victim's grandmother and asked to see the victim as soon as possible. That same day, the victim was interviewed by Gwen L. Herod, a victim assistance officer with the Sumter County Sheriff's Office. Based on this interview, Herod recommended the victim be taken for a medical examination at the Durant Children's Center in Florence.

During this time, Kathy Saunders worked as a pediatric nurse practitioner at the Durant Children's Center. On February 21, 2003, Saunders examined the victim and found tearing on her vaginal opening and scarring on her fossa, which "sits ... just in front of the hymen."

Douglas was charged with first degree criminal sexual conduct with a minor and committing a lewd act upon a minor. At trial, the victim declared that (1) Douglas' "weenie" touched her mouth; (2) Douglas stuck his "weenie" into her "pee pee"; (3) Douglas' mouth touched her "boobs"; (4) he "put his mouth into [her] mouth"; and (5) "the white stuff came out of [Douglas'] weenie." Douglas called his mother, Amelia Douglas, in part to impeach the victim's testimony that the victim "told the truth to her."

The State offered Herod as an expert in forensic interviewing. In addition, Saunders testified about the medical examination she performed on the victim, the vaginal tears, and the fossal scarring. Saunders opined that "the impression of the vaginal exam was that it was consistent with past penetration."

The jury found Douglas guilty of committing a lewd act upon a minor. The trial court granted a mistrial on the criminal sexual conduct charge. The judge sentenced Douglas to twelve years.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Wood, 362 S.C. 520, 608 S.E.2d 435 (Ct.App.2004). We are bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000); State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct.App.2004). On appeal, we are limited to determining whether the trial judge abused his discretion. State v. Walker, S.C., 623 S.E.2d 122 (Ct. App.2005). This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence. State v. Davis, 364 S.C. 364, 613 S.E.2d 760 (Ct.App.2005); State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003).

LAW/ANALYSIS

Douglas asserts the trial court erred in allowing Herod to testify as an expert in forensic interviewing because (1) forensic interviewing is not a recognized area of expertise; (2) Herod's testimony improperly bolstered the victim's testimony; and (3) the probative value of Herod's testimony was substantially outweighed by its prejudicial effect.

I. FORENSIC INTERVIEWING

Douglas contends the trial court erred in finding forensic interviewing is a field of expertise. We commence our unprecedented and neoteric juridical journey in analyzing this novel issue.

A. Qualification of Expert Witness

The qualification of an expert witness and the admissibility of the expert's testimony are matters within the trial court's sound discretion. Fields v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 609 S.E.2d 506 (2005); State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990); State v. Harris, 318 S.C. 178, 456 S.E.2d 433 (Ct.App.1995); see also Prince v. Associated Petroleum Carriers, 262 S.C. 358, 365, 204 S.E.2d 575, 579 (1974) ("Whether a witness has qualified as an expert, and whether his opinion is admissible on a fact in issue, are matters resting largely in the discretion of the trial judge."). The trial court's decision to admit expert testimony will not be reversed on appeal absent an abuse of discretion. State v. Myers, 359 S.C. 40, 596 S.E.2d 488 (2004); Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct. App.2003); State v. Henry, 329 S.C. 266, 495 S.E.2d 463 (Ct.App.1997); see also Jenkins v. E.L. Long Motor Lines, Inc., 233 S.C. 87, 94, 103 S.E.2d 523, 527 (1958) ("It was for the trial [c]ourt to say whether the inquiry was one upon which expert testimony was proper, and its ruling thereon will not be disturbed unless its [sic] appears that there has been an abuse of discretion.").

An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion that is without evidentiary support. Fields, 363 S.C. at 26, 609 S.E.2d at 509; Renney v. Dobbs House, Inc., 275 S.C. 562, 274 S.E.2d 290 (1981); see also Simon v. Flowers, 231 S.C. 545, 550, 99 S.E.2d 391, 393-94 (1957) ("`[E]rror at law' exists: (1) when the circuit judge, in issuing [the order], was controlled by some error of law ... or (2) where the order, based upon factual, as distinguished from legal, considerations, is without adequate evidentiary support."); McSween v. Windham, 77 S.C. 223, 226, 57 S.E. 847, 848 (1907) ("[T]he determination of the court will not be interfered with, unless there is an abuse of discretion, or unless the exercise of discretion was controlled by some error of law."). A trial court's ruling on the admissibility of an expert's testimony constitutes an abuse of discretion when the ruling is manifestly arbitrary, unreasonable, or unfair. Fields, 363 S.C. at 26, 609 S.E.2d at 509; Grubbs, 353 S.C. at 379, 577 S.E.2d at 496; Means v. Gates, 348 S.C. 161, 558 S.E.2d 921 (Ct.App. 2001).

To warrant reversal based on the admission or exclusion of evidence, the complaining party must prove both the error of the ruling and the resulting prejudice. Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005); Fields, 363 S.C. at 26, 609 S.E.2d at 509; Hanahan v. Simpson, 326 S.C. 140, 485 S.E.2d 903 (1997); Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). To show prejudice, there must be a reasonable probability that the jury's verdict was influenced by the challenged evidence or the lack thereof. Fields, 363 S.C. at 26, 609 S.E.2d at 509.

The test for qualification of an expert is a relative one that is dependent on the particular witness's reference to the subject. Wilson v. Rivers, 357 S.C. 447, 593 S.E.2d 603 (2004). Rule 702, SCRE, articulates guidelines for the admissibility of expert testimony. Rule 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE. There is no abuse of discretion as long as the witness has acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury's good judgment and common knowledge. State v. Henry, 329 S.C. 266, 495 S.E.2d 463 (Ct.App.1997); State v. Goode, 305 S.C. 176, 406 S.E.2d 391 (Ct.App.1991). For a court to find a witness competent to testify as an expert, the witness must be better qualified than the fact finder to form an opinion on the particular subject of the testimony. Ellis, 358 S.C. at 525, 595 S.E.2d at 825; Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); Crawford v. Henderson, 356 S.C. 389, 589 S.E.2d 204 (Ct.App.2003); see also Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252-53, 487 S.E.2d 596, 598 (1997) ("To be considered competent to testify as an expert, `a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony.'"). An expert is not limited to any class of persons acting professionally. Gooding, 326 S.C. at 253, 487 S.E.2d at 598; Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 563 S.E.2d 109 (Ct.App.2002). There is no exact requirement concerning how knowledge or skill must be acquired. Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App.1988).

The party offering the expert has the burden of...