State v. Gaster

Decision Date20 May 2002
Docket NumberNo. 25469.,25469.
Citation349 S.C. 545,564 S.E.2d 87
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Frank M. GASTER, Appellant.

W. Gaston Fairey, of Fairey, Parise & Mills, P.A., of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General Treva Ashworth, Senior Assistant Attorney General Kenneth P. Woodington, and Assistant Attorney General Steven G. Heckler, all of Columbia, for respondent.

Justice MOORE.

Appellant appeals his commitment pursuant to the South Carolina Sexually Violent Predator Act, S.C.Code Ann. § 44-48-10 to -170 (Supp.2000). We affirm.


Appellant was convicted of second degree criminal sexual conduct (CSC) with a minor and sentenced to twenty years imprisonment in July 1988. In 1999, he was scheduled for release after having satisfied the statutory requirements of his sentence. The State filed an action under the Sexually Violent Predator Act (the Act), to have appellant designated a sexually violent predator.

Following a trial, the jury found appellant to be a sexually violent predator. He was then committed to the South Carolina Department of Mental Health (DMH) for treatment.1 Pursuant to S.C.Code Ann. § 44-48-100(A) (Supp.2000), appellant's custody was transferred from DMH to the Department of Corrections.2

(1) Does the Act violate the double jeopardy, ex post facto, and due process clauses of the United States and South Carolina constitutions?
(2) Was appellant properly found to be a sexually violent predator?
(3) Did the trial court violate appellant's right to due process by allowing the use of a motion appellant filed that challenged the constitutionality of the age of sexual consent to prove appellant's need for treatment?
I. Constitutional Questions

When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution. State v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001).

Ex post facto challenge

Article I, § 10, of the United States Constitution and Article I, § 4, of the South Carolina Constitution provide that no ex post facto law shall be passed. An ex post facto violation occurs when a change in the law retroactively alters the definition of a crime or increases the punishment for a crime. Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000). For the ex post facto clause to be applicable, the statute or the provision in question must be criminal or penal in purpose and nature. State v. Huiett, 302 S.C. 169, 394 S.E.2d 486 (1990) (citing Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)).

We recently held the Act, which provides for the civil commitment of a sexually violent predator to the DMH's custody, is a civil, non-punitive scheme. See In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001) (Act does not violate Double Jeopardy clause of federal or state constitutions because it does not constitute punishment). Appellant has the burden of providing the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the legislature's intention that the Act be civil. See In re Matthews, supra (citing Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001)).

As noted in In re Matthews, supra, South Carolina's Act is modeled on Kansas's Sexually Violent Predator Act. The United States Supreme Court has previously determined the Kansas Act does not violate the ex post facto clause of the United States Constitution. Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The Hendricks Court held the application of the Kansas Act did not raise ex post facto concerns because the Kansas Act does not impose punishment. The Court further stated the Kansas Act

clearly does not have retroactive effect. Rather, the Act permits involuntary confinement based upon a determination that the person currently both suffers from a "mental abnormality" or "personality disorder" and is likely to pose a future danger to the public. To the extent that past behavior is taken into account, it is used ... solely for evidentiary purposes. Because the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post Facto Clause.

Hendricks, 521 U.S. at 370-371, 117 S.Ct. at 2086, 138 L.Ed.2d at 520-521 (emphasis in original).

Likewise, the South Carolina Act permits involuntaryconfinementbased upon the determination the person currently suffers from both a mental abnormality or personality disorder and is likely to engage in acts of sexual violence. See S.C.Code Ann. § 44-48-30(1) (Supp.2000) (sexually violent predator means person who has committed sexually violent offense and who suffers from mental abnormality or personality disorder which makes person likely to engage in sexually violent acts if not confined in secure facility for long-term control, care, and treatment).

Appellant argues the Act has crossed the line between civil commitment and punitive confinement. He points to the Act's requirement that all persons committed under the Act be kept "in a secure facility." S.C.Code Ann. § 44-48-100(A). He further points to the DMH's ability to enter into an agreement with the Department of Corrections for the control, care, and treatment of persons committed pursuant to the Act. Appellant argues this suggests that persons confined under the Act are being subjected to conditions identical to those of prisoners.

Appellant's contention has previously been addressed in In re Matthews, supra. Matthews argued he was subject to the conditions placed on state prisoners, and that he would not receive treatment for his alleged disease. We stated:

The conditions of confinement are not prescribed by the Act, but result from administrative decisions. Therefore, the conditions of confinement cannot be used to determine legislative intent.... Furthermore, the Act expressly provides, "The involuntary detention or commitment of a person pursuant to this chapter shall conform to constitutional requirements for care and treatment." S.C.Code Ann. § 44-48-170.

In re Matthews, 345 S.C. at 650-651, 550 S.E.2d at 317.

Furthermore, appellant has failed to meet his burden of showing the Act is so punitive in effect as to negate the legislature's intention to create a civil statute. In re Matthews, supra (citing Seling v. Young, supra). There is no information in the record indicating persons committed pursuant to the Act are being treated as if they were prisoners instead of as civilly committed persons.

We find the United States Supreme Court's decision in Hendricks is controlling, and conclude South Carolina's Act does not violate the ex post facto clause.

Double jeopardy challenge

Appellant claims the Act violates the double jeopardy clause of the United States and South Carolina Constitutions. We have previously found the Act does not violate the double jeopardy clause. In re Matthews, supra.

Due process challenge

Appellant's claim the Act violates the due process clause of the United States and South Carolina Constitutions3 is not preserved for review. This constitutional issue was not raised to or ruled upon by the trial court. In re McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001) (it is this Court's firm policy to decline to rule on constitutional issues unless such a ruling is required; a constitutional claim must be raised and ruled upon to be preserved for appellate review).

II. Sexually violent predator status

At trial, Sheriff Lane Cribb, who arrested appellant for the 1988 charge of second degree CSC with a minor, testified regarding conversations he had with appellant. Sheriff Cribb stated appellant obsessively tried to justify his behavior with his victim by stating he should be allowed to have sexual relations with a fourteen-year-old girl. Sheriff Cribb further testified appellant stated he carried out fantasies of rape, kidnapping, and prostitution with his victim as evidenced by the videotapes he made of himself acting out these fantasies with the victim.

Next, Dr. Donna Schwartz Watts (hereinafter referred to as Dr. Watts) testified. She stated she used the following to evaluate appellant: his past indictments; his Department of Corrections's record, which indicated good behavior; a 1973 vocational rehabilitation evaluation; a motion appellant filed for a ruling on the legal age of sexual consent; a transcript from the Georgetown County Sheriffs Office; 1988, 1993, and 1995 psychological evaluations, none of which indicated sexual disorders; psychological tests; a telephone interview with appellant's mother; and a two and a half hour psychiatric exam conducted by Dr. Watts herself.

Dr. Watts stated she discussed with appellant his 1973 conviction for contributing to the delinquency of a minor. Appellant told her the conviction arose because he gave a fifteen-year-old girl a key to his home. The girl did not attend school and remained in his home when she should have been at school. Appellant's Vocational Rehabilitation records indicated he encouraged the girl to not attend school and that they had a sexual relationship.

Dr. Watts and appellant also discussed his 1988 conviction for second degree CSC with a minor. Appellant told her he loved the fourteen-year-old victim and that he viewed the relationship as consensual.4 He told Dr. Watts he and the victim would act out sexual fantasies with each other and sometimes they would videotape those fantasies. Appellant told Dr. Watts that sometimes the victim knew she was being taped and other times, she did not. These videotaped fantasies included a rape scenario where appellant entered the room wearing a mask and made it appear as if he was raping the...

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