State v. Makins

• Court: United States State Supreme Court of South Carolina
• Citation: 860 S.E.2d 666,433 S.C. 494
• Decision Date: 23 June 2021
• Docket Number: Opinion No. 28039,Appellate Case No. 2020-000024
• Parties: The STATE, Petitioner, v. Ontario Stefon Patrick MAKINS, Respondent.

433 S.C. 494
860 S.E.2d 666

The STATE, Petitioner,
v.
Ontario Stefon Patrick MAKINS, Respondent.

Appellate Case No. 2020-000024
Opinion No. 28039

Supreme Court of South Carolina.

Heard March 24, 2021
Filed June 23, 2021

Attorney General Alan McCrory Wilson and Senior Assistant Attorney General David A. Spencer, of Columbia; and Solicitor William W. Wilkins III, of Greenville, for Petitioner.

Appellate Defender Taylor Davis Gilliam, of Columbia, for Respondent.

JUSTICE JAMES :

Ontario Stefon Patrick Makins was indicted for lewd act upon a minor, third-degree criminal sexual conduct (CSC) with a minor,

860 S.E.2d 668

and first-degree CSC with a minor.¹ He was convicted by a jury of third-degree CSC with a minor. The court of appeals reversed the conviction, holding a therapist's affirmation she treated the minor victim (Minor) improperly bolstered Minor's credibility. State v. Makins , 428 S.C. 440, 835 S.E.2d 532 (Ct. App. 2019). We granted the State's petition for a writ of certiorari.

Background

The State presented evidence at trial that Makins sexually abused Minor on several occasions when Minor was between the ages of five and eight. Minor was ten at the time of trial. After the allegations were made, Minor was treated by Kristin Rich, a childhood trauma therapist. Minor and Rich were the primary prosecution witnesses. The State called Rich both as an expert in the treatment of child trauma and child sexual abuse dynamics and as Minor's treating therapist. Rich's testimony as treating therapist is the basis of Makins's appeal. As Minor's treating therapist, Rich gave limited testimony about certain disclosures Minor made to her during therapy sessions. We address one primary issue in this appeal: by testifying both as an expert in characteristics of child trauma and child sexual abuse dynamics and as Minor's treating therapist, did Rich imply she thought Minor was truthful, thereby improperly bolstering Minor's credibility?

The trial court and the parties discussed vouching extensively throughout the trial. Before the jury was impaneled, the trial court expressed reservations about allowing certain portions of Rich's testimony:

This is my concern about this witness and why I'm somewhat circumspect. We have a long line of cases which discuss expert witnesses buttressing the credibility of minor witnesses. And although I think that most of what [Rich] talked about in a vacuum is okay, my concern is that [Rich] begins to talk about the specific treatment and discussions with [Minor] and without saying "that makes her believable," [Rich] is suggesting that that makes [Minor] believable. And I want to make sure that what we're not doing is an end run around forensic interviewers being qualified as expert witnesses and thereby buttressing the credibility of witnesses.... [T]he question is, what opinion will be offered and how close are we going to get to [Rich] saying, "I talked to [Minor]. I diagnosed [Minor] as being a victim of childhood sexual trauma and all of her answers were consistent with my diagnosis for childhood sexual trauma."

The trial court continued:

And when and if [Rich] gets to the point that says anything that suggests -- and I understand that she's not going to say it verbatim and she's not going to articulate it very, very clearly. But anything that suggest [sic] that "I diagnosed this girl and because she shows all of these signs, she's telling the truth," that's where we can't go.

Later in the pre-trial process, the trial court clarified:

I don't think I have any issue with [Rich] saying that she talked to [Minor], and that [Minor] exhibits symptoms of post-traumatic stress disorder. Beyond that, I'm concerned that if [Rich] starts matching up her testimony with [Minor's] symptoms, we are essentially establishing a circumstance where she is vouching for the credibility of the witness. If that happens, I don't think that I have any choice but to declare a mistrial and I don't want to get there. You can put her in the -- on the stand to testify as a fact witness without any vouching for the credibility. And then use a blind witness if you want to. Or you can use a blind witness. But don't get to the point where she's vouching for the credibility, okay?

Before the jury, Rich testified about her training in and her use of "trauma-focused cognitive behavioral therapy, which is particularly

860 S.E.2d 669

related to childhood trauma." She defined trauma as:

... a very bad event where somebody feels like they might be hurt or killed or something very bad might happen to them. And generally, it's shocking in nature where somebody feels helpless or terrorized or horrified.... It's something that tragically shifts your life.

Rich testified to her specialized trauma training, particularly for children who have disclosed sexual abuse. Rich estimated she had provided therapy to approximately 500 children over the course of her career and between 120 to 150 of those children had experienced trauma as a result of sexual abuse. After the trial court qualified her as an expert, Rich testified to the symptoms children exhibit that are associated with trauma and, more specifically, symptoms of sexual abuse trauma. She also explained delayed disclosure and why children often disclose such abuse in a piecemeal fashion over time.

At this juncture, the State said, "I want to move a little more specifically. Have you provided therapy to the victim in this case, [Minor]?" Rich replied, "[y]es." Defense counsel objected, the jury was excused, and defense counsel moved for a mistrial.

Defense counsel argued the combination of Rich's testimony about treating trauma victims, the focus on sexual abuse symptoms and trauma treatment, and her statement that a sizeable portion of her clients have suffered sexual abuse equated to Rich testifying, " ‘Every child I work with or every person I work with has suffered some trauma. That's why I provide counseling to them, is they are my clientele.’ " Defense counsel argued Rich vouched for Minor's credibility by "saying in essence ‘if she didn't suffer trauma, I wouldn't be working with her.’ " He further argued, "she is saying, ‘I believe Minor has suffered a trauma.’ " To be clear, these comments by defense counsel were not quotes of Rich's actual testimony, but rather were defense counsel's summary of the practical impact of Rich's testimony upon the jury.

The State argued Rich's testimony had so far been the equivalent of blind expert testimony, and Rich had not stated she believed Minor. The State reiterated the limitations the trial court had placed on Rich's testimony and argued adopting defense counsel's position would preclude the State from using experts in this context.

Stating this is "definitely an issue on appeal," the trial court concluded Rich had testified as a blind witness up to that point and had not yet gotten to the point of vouching. The trial court denied the motion for mistrial. After a recess, the trial court further limited Rich's testimony to whether she treated Minor, whether Minor disclosed sexual abuse, and the circumstances of the disclosure:

I think, after having heard the testimony and heard what [Rich] said, I think that once [Rich] starts to say that "I was the attending physician and I diagnosed this and I treated this," then we are right back where the Supreme Court told us not to go and that's vouching for the credibility of the witness. Now, I recognize that [Rich] wouldn't expressly say that [Minor is] truthful. But I think it ultimately serves the same end.

The jury returned to the courtroom. Rich testified Minor disclosed to her that she had been sexually abused but did not want to talk about it. Rich testified she asked Minor about "the worst time," and Minor drew a picture to illustrate. The drawing depicted an act that would constitute first-degree CSC with a minor. When Rich asked who the people in the picture were, Minor identified herself and Makins. Rich testified, "[i]t wasn't until the second session that [Minor] would say [what she saw] because part of the therapy is to be able to say the things that you're...