State v. Kirton, No. 4470.

CourtCourt of Appeals of South Carolina
Writing for the CourtAnderson
Citation671 S.E.2d 107,381 S.C. 7
PartiesThe STATE, Respondent, v. Bruce E. KIRTON, Appellant.
Decision Date17 December 2008
Docket NumberNo. 4470.
671 S.E.2d 107
381 S.C. 7
The STATE, Respondent,
v.
Bruce E. KIRTON, Appellant.
No. 4470.
Court of Appeals of South Carolina.
Heard December 11, 2008.
Decided December 17, 2008.

[671 S.E.2d 109]

Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor J. Gregory Hembree, of Conway, for respondent.

ANDERSON, J.:


Bruce Kirton (Kirton) appeals his conviction for criminal sexual conduct with a minor in the second degree. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Bruce Kirton was convicted of criminal sexual conduct with a minor in the second degree and sentenced to twelve years in prison. The indictment alleged:

That Bruce Edward Kirton did in Georgetown County on or between December 1, 2005 and February 21, 2006 engage in sexual battery with a victim at least eleven years of age but less than fourteen, [Victim,] to wit: the defendant did have sexual intercourse with the victim, [Victim,]

671 S.E.2d 110

whose date of birth is [1992]. This is in violation of Section 16-3-0655(2), S.C.Code of Laws, 1976, as amended.

The thirteen year old victim (Victim) answered the assistant solicitor's questions on direct examination:

Q: When was the first time that you remember that [Kirton] touched your private parts?

A: When we were living in the trailer, and me and him were laying on his bed watching tv.

Q: Okay.

And, um, where—how old were you?

A: Six or seven.

Q: Okay.

Do you remember what grade you were in?

A: Second or third.

Q: Okay.

And, um, where did he touch you?

A: He just, like, touched my boobs and made me touch his penis.

Q: Okay.

And do you remember if you had your clothes on or off?

A: I don't remember.

Q: Okay.

And what about him? Did he have his clothes—his pants on?

A: He had a pair of boxers on.

Q: And did you touch his penis on the outside or the inside of his boxers?

A: The inside.

Q: Okay.

And how did that happen? Did he pull his pants down or how did—do you remember?

A: He took my hand.

Q: He—

A: He took my hand.

Q: Okay.

And he did what with you hand?

A: He pulled it into his boxers.

Q: Inside his boxers?

And is that the only time anything like that ever happened to you?

A: No.

Q: Um, so when—so this was six or seven years ago. Is that right?

A: Yes, sir.

Q: And you were about six years old?

A: Yes, sir.

Q: Do you remember about how many times that type of thing happened?

A: No, sir.

Q: Okay.

How often did it happen?

A: A couple of times a month, I guess.

Q: And, um, for the next few years up until, um, the last year or so, was it the thing that happened a couple of times a month, was that all the same or was it different?

A: I don't know.

Q: Okay.

What kind of things did he do to you a couple of times a month?

A: Just making me touch his penis and he touched me.

Q: Okay.

Where did he touch you?

A: On my crotch and my boobs.

Q: Okay.

And, ah, do you know when the first time was when he touched you in your crotch?

A: No, sir.

Q: Alright.

Do you remember about how long it was?

A: No, sir.

Q: Was it more than a year ago or less than a year ago?

A: It was probably more than a year ago.

Q: And did he ever—what did he touch your—the first time he touched you in your crotch, what did—what did he touch you with? What body part of his?

A: His hand.

Q: Okay.

And—and you say that was probably more than a year ago?

A: Yes, sir.

Q: And then did he ever touch your crotch with any part of his body?

671 S.E.2d 111

Let me ask you this. You said it happened a couple of times a month. Right?

A: Yes, sir.

Q: And was there ever a time when he either didn't do it or didn't do it as much?

A: When he first started dating Lisa.

. . .

Q: Okay.

Tell me—tell me what happened the last times.

A: I don't remember the first one that well but the last time was two or three days before Christmas, and I was laying on the couch because I had spent the night with him, and he came in the living room and took my pants off and—put his penis in my crotch.

Q: Who—where did that take place?

A: His house in the living room.

Q: And did you say you were on the couch?

A: Yes, sir.

. . .

Q: I said were you—you were laying on the couch before he came in, and I was about to ask the question.

Which is, um, when he inserted his penis into your crotch, were you—was he on— how were y'all positioned on the couch?

A: I was laying down, and he was on his knees.

. . .

Q: How does it—how did that make you feel?

A: Upset.

. . .

Q: And did you tell anybody right away after that? Did you tell anybody right away after that happened?

A: No, not right away.

Q: And why not?

A: I just didn't want anybody to know.

Q: Were you embarrassed?

A: Yes.

Q: Okay.

Were you afraid?

A: Yes.

. . .

Q: Did he say anything to you about what would happen if you told?

A: He just told me if I told I'd never get to see him again.

. . .

Q: Okay.

And you told your mom, and then after that, did you go to see a lady named Dr. Carol Rahter?

A: I think so.

Q: Okay.

And did you tell her basically what happened?

A: Yes, sir.

. . .

Q: When [Kirton] put his penis in your crotch, did he put it inside your vagina?

A: Yes, sir.

. . .

Dr. Carol Ann Rahter conducted a forensic interview with Victim on March 2, 2006. The forensic interview consisted of a one-on-one conversation lasting approximately thirty minutes followed by a medical examination. Dr. Rahter advised the purpose of a forensic interview of a child victim of sexual assault is to determine what happened to the child to ascertain (1) what kind of medical treatment is needed and (2) whether it is safe for the child to return to his or her environment. Dr. Rahter has conducted over a thousand forensic interviews with child victims of sexual assault since 1993. Dr. Rahter asserted on direct examination:

Q: In your opinion did [Victim] appear to be competent?

A: Yes, she was competent.

Q: And, um, what, if anything, did she relate to you about the time frame of the sexual assault?

A: She has difficulty with age because she told me that the first time it happened she was seven, that that was either second grade, third grade or fourth grade.

Now, we all know that when you're about seven, you're about—you're either in first grade depending on your birthday or second grade. You're not in fourth grade.

671 S.E.2d 112

Um, so that was—she has a little difficulty with time.

That's when she said the first time happened.

She told me that the last time happened approximately or about—I think she used the word "about" four weekends before.

And—

Q: What is the concept of delayed reporting? What does that mean?

A: The majority of children do not report at the time of any kind of sexual abuse. There's many reasons for that....

. . .

Q: Now, um, how does that impact the child—the delayed reporting, how does that impact the child's ability to be specific with respect to dates of the assault?

A: My experience with children reporting dates is unless it's something that happened on their birthday or Christmas or something that's very impactual [sic] in a child's life, they can't tell you the date.

I mean, I've got a teenager. She can't tell you the date of anything.

It's just they're not small adults. They're children, and their time frames are not the same as adults. They don't write checks. They don't know—write dates down all the time, and so frequently children will tell me, "It happened a lot of times."

And when I'll say to them, "Does that mean less than five or more than five?"

They'll say, "More than five."

But they can't tell me how many times.

But when you go on and interview them, they'll end up saying that it happened every weekend over a three year period of time.

Well, then, obviously, that's a lot more than five.

They have a lot of difficulty quantitating [sic] and telling specifics about dates.

They can tell nighttime and daytime. They can sometimes tell you it was before Christmas or after Christmas or, "It was before my birthday or after my birthday," or it was in the summertime and school was not going on but they have a lot of difficulty telling me a specific date, a specific month, specific quantities of the times—of how many times something occurs to them.

Also, when there is an extended period of time where children have been assaulted, a lot of that blends together. So sometimes they'll report something that was actually several different incidents as if it was all in one day, and so sometimes it doesn't—it just doesn't make logical sense the way they're reporting but that's just what we see. They blend things, and so it's not— sometimes it doesn't make logical sense with dating and reporting.

Q: And as in the case of [Victim,] somebody a child has assaulted at the time that you're seven—if they are seven until the time that they are twelve or thirteen, um, how would that impact their ability to be specific with respect to the nature of their assaults?

A: Well, the same thing. When it happens multiple times, they tend to blend— the way—the things that they can tell oftentimes, like, if it's a different location they'll be able to tell different things that occurred to them physically which is usually a grooming process, what starts out being something that's non-painful and ends up progressing to something that's more, um, ah, aggressive and oftentimes painful. Over a period of time that occurs.

So they can oftentimes tell you specific about when things transitioned, when different acts started occurring to them, and oftentimes, they can tell you more specific detail if it was something like it always happened in the house but one time it happened in their car on the way to Wal-Mart.

But when the assaults are occurring in the same setting, they're...

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40 practice notes
  • State v. Green, Appellate Case No. 2017-001296
    • United States
    • Court of Appeals of South Carolina
    • February 3, 2021
    ...in admission of improper evidence is harmless when such is cumulative to other unobjected-to evidence admitted at trial); State v. Kirton , 381 S.C. 7, 37-38, 671 S.E.2d 107, 122 (Ct. App. 2008) (finding, while an objection to the testimony presented by the victim was preserved, appellant f......
  • State v. Bell, Appellate Case No. 2017-001500
    • United States
    • Court of Appeals of South Carolina
    • July 8, 2020
    ..."when guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached. " State v. Kirton , 381 S.C. 7, 37, 671 S.E.2d 107, 122 (Ct. App. 2008) (emphasis added).In State v. King , our supreme court found the erroneous admission of prior bad acts......
  • Stat v. Washington, Appellate Case No. 2016-000907
    • United States
    • Court of Appeals of South Carolina
    • January 8, 2020
    ...are directed toward the same victim and are very similar in nature, those acts are admissible as a common scheme or plan." State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d 107, 117 (Ct. App. 2008). Here, the similarities between all of the incidents described by Minor in the interview strongly o......
  • State v. Washington, 2020-UP-003
    • United States
    • Court of Appeals of South Carolina
    • January 8, 2020
    ...are directed toward the same victim and are very similar in nature, those acts are admissible as a common scheme or plan." State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d 107, 117 (Ct. App. 2008). Here, the similarities between all of the incidents described by Minor in the interview strongly o......
  • Request a trial to view additional results
40 cases
  • State v. Green, Appellate Case No. 2017-001296
    • United States
    • Court of Appeals of South Carolina
    • February 3, 2021
    ...in admission of improper evidence is harmless when such is cumulative to other unobjected-to evidence admitted at trial); State v. Kirton , 381 S.C. 7, 37-38, 671 S.E.2d 107, 122 (Ct. App. 2008) (finding, while an objection to the testimony presented by the victim was preserved, appellant f......
  • State v. Bell, Appellate Case No. 2017-001500
    • United States
    • Court of Appeals of South Carolina
    • July 8, 2020
    ..."when guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached. " State v. Kirton , 381 S.C. 7, 37, 671 S.E.2d 107, 122 (Ct. App. 2008) (emphasis added).In State v. King , our supreme court found the erroneous admission of prior bad acts......
  • Stat v. Washington, Appellate Case No. 2016-000907
    • United States
    • Court of Appeals of South Carolina
    • January 8, 2020
    ...are directed toward the same victim and are very similar in nature, those acts are admissible as a common scheme or plan." State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d 107, 117 (Ct. App. 2008). Here, the similarities between all of the incidents described by Minor in the interview strongly o......
  • State v. Washington, 2020-UP-003
    • United States
    • Court of Appeals of South Carolina
    • January 8, 2020
    ...are directed toward the same victim and are very similar in nature, those acts are admissible as a common scheme or plan." State v. Kirton, 381 S.C. 7, 27, 671 S.E.2d 107, 117 (Ct. App. 2008). Here, the similarities between all of the incidents described by Minor in the interview strongly o......
  • Request a trial to view additional results

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