State v. Henry, 2771

• Citation: 495 S.E.2d 463,329 S.C. 266
• Decision Date: 19 March 1998
• Docket Number: No. 2771,2771
• Court: Court of Appeals of South Carolina
• Parties: STATE of South Carolina, Respondent, v. Levern HENRY, Appellant.

Page 463

495 S.E.2d 463

329 S.C. 266

STATE of South Carolina, Respondent, v. Levern HENRY, Appellant.

No. 2771.

Court of Appeals of South Carolina.

Submitted Dec. 2, 1997.

Decided Dec. 15, 1997.

Rehearing Denied Mar. 19, 1998.

Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, Columbia, for Appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport; and Solicitor W. Barney Giese, Columbia, for Respondent.

ANDERSON, Judge:

Levern Henry (Henry) was convicted of second degree criminal sexual conduct with a minor, committing a lewd act upon a child, and assault and battery with intent to commit second degree criminal sexual conduct with a minor. He appeals, arguing the trial court erred in qualifying Coles Badger, a psychotherapist, as an expert witness to testify regarding her diagnosis of post-traumatic stress disorder (PTSD). We affirm. ¹

FACTS/PROCEDURAL BACKGROUND

Carol Blount (Blount) met Henry in 1984. At the time, she had three daughters: Nayenday, Jenne (Victim), and Tinita. In April of 1985, she married Henry and moved with her daughters from Philadelphia, Pennsylvania, to Columbia, South Carolina, to live with Henry. Initially, Victim and Henry got along fine. However, between October 15, 1986, and Christmas of that same year, when Victim was eleven years old, the relationship changed. During that time, Henry began to molest Victim by touching her on her breast, thighs, and vagina. ² Sometimes Henry would reach over and fondle Victim while she was sitting alone with him. Other times Henry would undress himself, rub his penis against her vagina and body, and lay on top of her. Henry tried to force Victim to kiss his penis and watch pornographic movies. According to Victim, this abuse would occur either in the den or Henry's bedroom when the two were alone in the house.

During the summer of 1989, when Victim was thirteen years old, while Victim was lying on the couch in the den, Henry removed her shorts, pulled a "finger-like" object out of a bag, and inserted it into her vagina. ³ In December of 1990, Henry pulled Victim off of the couch in the den. He picked her up and threw her on the bed in his bedroom. Victim screamed and clenched her legs together to keep him from inserting his fingers into her, but Henry pulled her legs apart and then bit her on her thigh. ⁴ Victim managed to run out of the bedroom when the telephone rang. When Victim examined her leg, she observed Henry's teeth marks there. Victim was fifteen years old at the time.

Victim felt "uncomfortable" about Henry's behavior, but did not tell anyone because she was afraid. On one occasion, when Victim threatened to tell on Henry, he warned her he would go to jail but he would make sure something worse happened to her. Victim, who was nineteen years old at the time of trial, testified Henry abused her for three to four years "whenever he felt like it."

On February 7, 1991, Victim had a conversation with her younger sister, Tinita. As a result of this conversation, in the early morning hours of February 8, 1991, Victim told her mother Henry had molested her. Carol Blount phoned and questioned Nayenday, Victim's older sister who was living in Florida. Nayenday informed her mother Henry Nayenday, who was twenty three years old at the time of trial, testified. Henry molested Nayenday when she was in the tenth and eleventh grades. In 1986, when Nayenday was in the tenth grade, Henry touched her vaginal area. Nayenday did not say anything because she was "stunned." After that first episode, Henry sometimes engaged in sexual intercourse with Nayenday.

had molested her. Victim, Tinita, and Blount then left Henry's house.

In March of 1987, Henry told Nayenday he would take her to get her learner's permit but she was "going to have to do something in return." Later that same day, after Henry had taken Nayenday to get her permit, "he pushed the issue of having to do something for getting [her] learner's permit." Nayenday then had sexual intercourse with Henry. In June of 1987, in order to get her driver's license, Nayenday again had to have sexual intercourse with Henry. During much of the abuse, Nayenday would often stare at the clock in Henry's bedroom to ignore what was happening to her. Other events led to further abuse, such as before a band trip or class visit to Six Flags when she needed money from Henry. He would force her "to do something with him" before he would give her the money she needed.

The abuse always occurred in Henry's bedroom. Nayenday did not tell anyone about the abuse because she did not want to split up her family and she felt no one would believe her. Henry stopped abusing Nayenday during her junior year in high school because she told him she was going to kill him if he did it again. Before Nayenday left for college, she told Henry she would not say anything about the abuse if he promised not to bother her sisters.

In the twelve months after Henry stopped abusing her, Nayenday blocked out much but not all of the specific acts of abuse. However, she did not forget the fact she had been sexually abused by Henry. In 1989, Nayenday attended the University of Florida. During the spring semester of Nayenday's freshman year at college, she began experiencing flashbacks and nightmares regarding the details of the abuse. In March of 1990, she sought counseling, but kept it secret from her family. At the end of her freshman year, Nayenday's grade point average was 1.88. As a result of the emotional trauma she was suffering during this time, Nayenday received a medical withdrawal in the spring of 1990. Although she returned to college in the fall of 1990, she obtained another medical withdrawal in the spring of 1991. Nayenday did not reveal the abuse to her mother until she called and specifically asked Nayenday if Henry had molested her.

At trial, the State offered Coles Badger as an expert psychotherapist with a specialty in child sexual abuse. During voir dire, Henry objected to Badger's qualification to render a psychiatric or psychological diagnosis. Despite the objection, the court qualified Badger as an expert psychotherapist with a specialty in child sexual abuse.

In March of 1991, Badger met with Victim on three separate occasions for a total of approximately three hours. The purpose of the meetings was to treat Victim for sexual abuse. Victim told Badger she had been repeatedly sexually abused by Henry. Badger opined Victim suffered from PTSD. According to Badger, PTSD is a "process that some people go through after they've experienced a traumatic event, such as sexual abuse." PTSD has two sets of symptoms: (1) anxiety-based symptoms, such as nightmares, fears, jumpiness, and crying, and (2) depressive symptoms, such as withdrawal, depression, and not wanting to tell anyone about what happened to them. Badger stated victims "usually kind of bounce around among all those symptoms." Badger observed Victim possessed symptoms of PTSD: anxiety, anger, low self esteem, withdrawal, fear of the abuse recurring, feelings of shame, and avoidance behaviors. Badger testified she knows PTSD "inside and out."

Badger explained the phenomenon of delayed disclosure of sexual abuse--the phenomenon of a child being sexually abused and not telling anyone for a period of time. She further revealed delayed disclosure is a very common trait among child sexual abuse victims. Defense counsel objected to Badger's reference to statistics and research regarding delayed disclosure stating he did not Badger discussed several coping mechanisms of child sexual abuse victims. Some cope by blocking out details of the abuse or the actual abuse itself. According to Badger, it is common for these blocked memories to come back in the form of nightmares, dreams, or flashes. Some cope by striving to be perfect and excelling in school or activities so "that the abuse will somehow go away or not be as bad." Those victims focus intently on their schoolwork to distract themselves from the abuse. Badger testified it was consistent with sexual abuse to perform poorly in school.

have access to the research. This objection was overruled.

At a pretrial hearing in 1992, then Circuit Court Judge William B. Traxler denied the State's motion to admit testimony from Nayenday and Tinita. The State appealed. In State v. Henry, 313 S.C. 106, 432 S.E.2d 489 (Ct.App.1993), this Court held Nayenday's testimony was admissible, but Tinita's testimony was properly excluded. The Court remanded the case. At trial, the jury convicted Henry on all charges.

ISSUE

Did the trial court err in qualifying a psychotherapist with a specialty in child sexual abuse as an expert witness to give opinion testimony in regard to the diagnosis of PTSD?

STANDARD OF REVIEW

The qualification of a witness as an expert is a matter within the discretion of the trial court. State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993); State v. Whaley, 305 S.C. 138, 406 S.E.2d 369 (1991); State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990). See also State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996) (admission of expert testimony is within discretion of trial court). The trial judge's determination regarding a witness' qualifications to testify as an expert will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Goode, 305 S.C. 176, 406 S.E.2d 391 (Ct.App.1991); Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App.1988). 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. Goode, supra.

LAW/ANALYSIS

Henry...