State v. Ladner

• Decision Date: 23 April 2007
• Docket Number: No. 26310.,26310.
• Citation: 644 S.E.2d 684
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Bryan LADNER, Appellant.

644 S.E.2d 684

The STATE, Respondent, v. Bryan LADNER, Appellant.

No. 26310.

Supreme Court of South Carolina.

Heard February 14, 2007.

Decided April 23, 2007.

Appellate Defender Aileen P. Clare, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, Patricia Ann Kennedy and Keshia V. White, of Berkeley Public Defenders, Inc., of Moncks Corner, 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 Shawn L. Reeves, all of Columbia, and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

Justice WALLER.

Appellant Bryan Ladner was indicted for criminal sexual conduct with a minor, first degree. A jury found appellant guilty, and the trial court sentenced him to 14 years' imprisonment. Appellant directly appeals from his conviction. We affirm.

FACTS

Appellant was charged with digitally penetrating the victim's vagina on October 31, 2003. The victim, at the time, was approximately two and a half years old.

After the jury had been selected, but prior to any testimony being taken, the State informed the trial court it was not planning to call the victim as a witness.¹ Instead, the State intended to introduce the victim's statement implicating appellant through the excited utterance exception to the hearsay rule. In response, defense counsel stated that the victim might be called in the defense's case-in-chief, and therefore, appellant requested a competency hearing. Appellant also made a motion in limine to determine the admissibility of the hearsay statement.

The hearing on the motion in limine proceeded, and the State put up Marla Jackson.² Marla testified that on Halloween 2003 at around 7 p.m., appellant and others arrived at her house to take the victim trick-or-treating. About one hour later, appellant returned the victim to Marla's house. Within approximately 45 minutes of the victim returning to Marla's house, the victim went to the bathroom and complained that her crotch area³ hurt when she urinated. It was discovered that the victim was bleeding, so Marla laid her down in the bedroom and saw that she was red and swollen in her vaginal area. Marla asked the victim what happened, and the victim said, "Bryan did it." The victim then stated, "No, Bryan didn't do nothing."

The trial court ruled that the victim's statement to Marla identifying appellant as the perpetrator was admissible because it met all the elements of the excited utterance hearsay exception. Further, the trial court stated that the victim's incompetency based on her youth would not bar admission under the excited utterance rule. Defense counsel then requested the competency hearing. The victim was questioned by defense counsel and so clearly demonstrated she was incompetent to testify that at the close of questioning, defense counsel conceded she was not competent as a witness. Appellant requested that the trial court reconsider its hearsay ruling, but the trial court again ruled the statement admissible.

The following additional facts were developed during trial testimony. Appellant lived with his fiancée Joanna Sweatman. Joanna had been the victim's primary caretaker until September 2003, when the victim was sent to Tennessee to be taken care of by Joanna's mother, Eloise Cales.⁴ Eloise traveled with the victim back to South Carolina on October 30, 2003. Arrangements were made on that day for Joanna and appellant to take the victim trick-or-treating the next evening.

Marla was the State's primary witness. She testified that she was an "aunt figure" to the victim. Marla drove Eloise and the victim from Tennessee to South Carolina the day before Halloween 2003; both Eloise and the victim stayed at Marla's house on October 30 and 31. Marla described how she got the victim ready for trick-or-treating around 6 p.m. on October 31:

[B]efore I put her panty hose on, I took her pull-up⁵ off and washed her down because she had peed in her pull-up that we originally put on her after she had taken a bath earlier and I had to wash her, wipe her down and then put a new pull-up on her before I put her tights on her.

The victim was outfitted as a princess for Halloween: she had on a dress, make-up, and tights as her costume.

Around 7 p.m., Joanna picked the victim up from Marla's house; appellant was driving, and several others were in the car. Appellant drove the group to a neighboring subdivision to go trick-or-treating. Between 7:45 and 8 p.m., appellant returned the victim to Marla's house. Marla testified that she was on the porch giving out candy when the victim returned, and she noticed the victim had been crying because her face was red and her make-up was smeared.

Appellant explained that he brought the victim back because she was having a temper tantrum. According to Marla, appellant did not even stay two minutes at her house. Eloise came to the door and took the victim inside. Shortly thereafter, Marla also went inside the house. The victim sang a couple of songs, karaoke-style. After her singing, while sitting on the couch, the victim grabbed at her crotch and said she had "to pee." Eloise took her in the bathroom, and Marla went in to "find out what was going on." Eloise wiped the child and noticed blood on the toilet paper.⁶ She told Marla to take a look at the victim. Marla testified as follows:

And me and my mom and Eloise was [sic] in the room and [the victim] was all red in her crotch area and swollen and she had scratches all behind her legs. She had a hand print—a large hand print on her arm, a larger hand print on her leg. She had scratches around her wrist. And I asked her what happened, because she said her tooch hurt, and I asked her what happened and she said, Bryan did it. And then she goes, No, Bryan didn't do nothing, Bryan didn't do nothing.

(Emphasis added).

The victim was taken to an emergency room and treated by Dr. Charles Staples. Qualified as an expert in sexual assault examinations, Dr. Staples testified the victim had bruises on her left cheek, arm, and inside thigh; his vaginal exam revealed redness. In Dr. Staples' opinion, the victim's injuries were consistent with sexual abuse that was acute, i.e., it had occurred in the previous 12 to 24 hours.

The victim was transported to, and examined at, Carolina Medical Assessment Center for a full sexual assault examination. Dr. Elizabeth Gibbs, who was qualified as an expert in child sexual examinations, testified that her examination occurred around 1 a.m. on November 1, 2003. She reported that the victim's left leg had been constricted from her left leg being held up. Regarding the victim's vaginal injuries, Dr. Gibbs testified that the area was extremely swollen, there was a laceration on the left side, and bleeding was coming from the hymen. She also stated the victim was in a great deal of pain from the vaginal injuries. Dr. Gibbs opined the victim had suffered a blunt force penetrating injury to her vagina that had occurred within 24 hours of the time of examination. Moreover, Dr. Gibbs stated that although cases of digital penetration generally present with much less trauma than this victim had, her injuries nonetheless could have been caused by digital penetration.

Based on the victim's identification of appellant, the police interrogated appellant in the early morning hours of November 1, 2003. He gave two statements to Detective Aldo Bassi. In his second statement, appellant wrote the following:

[the victim] was tired and crying so [Joanna] asked me to take her home. She put [the victim and another child] in the car. [The victim] was crying [hysterically] and from the front seat I grabbed her arm to get her to stop, she didn't so I grabbed her leg still trying to get her attention for her to stop. She kept crying and I pushed on her diaper in groin area. She still wouldn't stop so I pushed on her crotch w/my finger. She [stopped] crying and was fine the rest of the way home. (It was my right hand and my finger slightly penitrated [sic] her) I did this out of frustration [and] anger to make her stop crying [hysterically].

At trial, however, appellant testified that the victim was "throwing a fit" as he was driving her back from trick-or-treating so he reached back and "popped her on the leg." Appellant stated that Detective Bassi put words in his mouth about what had happened to the victim. Appellant testified that he wrote the second statement because he "just wanted to go home."

ISSUES

1. Was the victim's hearsay statement testimonial and therefore inadmissible under Crawford v. Washington?

2. Did the trial court err by admitting the victim's hearsay statement under the excited utterance exception?

3. Did the trial court err by denying appellant's request for a directed verdict?

DISCUSSION

1. Testimonial vs. Nontestimonial under Crawford v. Washington

Appellant argues it was error to admit the victim's hearsay statement because pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the hearsay statement was testimonial and therefore inadmissible because he had no prior opportunity to cross-examine the victim. We disagree.⁷

The Sixth Amendment's Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, the United States Supreme Court (USSC) held that the admission of testimonial hearsay statements against an accused violates the Confrontation Clause if: (1) the declarant is unavailable to testify at trial, and (2) the accused has had no prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. at 54, 124 S.Ct. 1354. With regard to testimonial statements, Crawford overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which...