State v. McGaha

• Decision Date: 26 June 2013
• Docket Number: No. 5149.,Appellate Case No. 2011–197266.,5149.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Marshall McGAHA, Appellant.

404 S.C. 289

744 S.E.2d 602

The STATE, Respondent,

v.Marshall McGAHA, Appellant.

Appellate Case No. 2011–197266.

No. 5149.

Court of Appeals of South Carolina.

Heard May 8, 2013.

Decided June 26, 2013.

Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General David A. Spencer, both of Columbia, for Respondent.

FEW, C.J.

Marshall McGaha was tried for sexually abusing two young children. A jury convicted him of criminal sexual conduct with a minor in the first degree and lewd act upon a child as to each victim. On appeal, he argues the trial court erred in trying the charges related to both victims in the same trial. We affirm.

I. Facts and Procedural History

The two victims are sisters, Dana and Elaina.¹ They lived with their grandmother, along with their great-grandmother, their older sister, and McGaha. The grandmother allowed McGaha, who was not a member of the family, to live in their home.

Dana testified that on multiple occasions, McGaha picked her up at night out of the bed she shared with her grandmother and took her to his bed in the play room, where he touched her “private” with his “wiener.” He also put her hand on his “wiener,” and, in her words, “put his wiener in my mouth and started peeing.” He would then wipe off Dana's mouth with a sock. McGaha told her not to tell anyone.

Elaina also testified that on multiple occasions, McGaha picked her up at night out of the bed she shared with her great-grandmother and took her to the play room. While there, he would touch her “pocketbook” ² with his hands. McGaha also made Elaina put her hands on his “front part” and hold it. After Elaina was unable to speak in response to several questions about “what would happen when he made you hold it,” she testified, “He touched me with his front part in my mouth” and “made me suck it.” She said McGaha “peed” in her mouth, and she would spit it out. McGaha told her not to tell anyone.

One weekend the children were visiting Jessica, a thirty-year-old relative whom they call their aunt. They approached Jessica together, and each one told her what McGaha had been doing to them in the play room. Jessica immediately drove them home and called the police. Investigator Heather Hubert and several other officers responded to the call. Hubertspoke with both children, their sister, their grandmother, their great-grandmother, and Jessica. Both children told Hubert what McGaha had done to them in the play room. Dana, who was eight, said she had been assaulted since age seven. Elaina, who was seven, said she had been assaulted since age six. During a search of the home, officer Doug Smith found a pair of girl's underwear between the pillows on McGaha's bed.

The State charged McGaha with four crimes in four separate indictments—criminal sexual conduct and lewd act as to each victim. The State made a motion to try the four charges together, and McGaha asked for separate trials as to each victim. In a pre-trial hearing, the trial court granted the State's motion.

At trial, the State presented testimony from Dana, Elaina, the grandmother, Jessica, Smith, Hubert, and a pediatrician who physically examined the children for signs of sexual abuse. The jury also heard testimony from a forensic interviewer who interviewed each of them, and the State played video recordings of the interviews for the jury. McGaha testified he never touched the victims. He stated he had Hepatitis B and if he had molested them, he would have infected them.

The jury found McGaha guilty of all charges. The trial court sentenced him to life in prison on each criminal sexual conduct conviction and fifteen years, consecutive, on each lewd act conviction.³

II. Whether the Trial Court Erred in Trying the Charges Together

Our supreme court has held that a trial court may try separate charges together “where they (1) arise out of a single chain of circumstances, (2) are proved by the same evidence, (3) are of the same general nature, and (4) no [substantive] right of the defendant has been prejudiced.” State v. Harris, 351 S.C. 643, 652, 572 S.E.2d 267, 272 (2002); ⁴see also State v. Cutro, 365 S.C. 366, 374, 618 S.E.2d 890, 894 (2005) (describing the fourth element as “the defendant's substantive rights are not prejudiced”). The trial court has discretion in deciding whether to try charges together, and its decision will be reversed only if there is no evidence to support it or it is controlled by an error of law. Harris, 351 S.C. at 652, 572 S.E.2d at 272;State v. Rice, 368 S.C. 610, 613, 629 S.E.2d 393, 394–95 (Ct.App.2006).

In this case, the trial court applied the test from Harris and made individual findings as to each element. Where appropriate, the trial court explained the factual basis for the finding. We find the trial court applied the law correctly, and there is a factual basis in the record to support each finding. Therefore, the trial court acted within its discretion to try the charges together.

A. Single Chain of Circumstances

The trial court properly began its analysis of this element by describing the chain of circumstances—“a series of connected transactions that allege and involve sexual abuse of the victims who had the same relationship to the defendant.... [T]he place where the abuse occurred was the same....” The evidence supports the trial court's finding that the charges all arose from the circumstances the court described. McGaha gained access to the children because the grandmother allowed him to live in their play room. McGaha used this access on multiple occasions to take each child from her bed to the play room, where he molested her. Dana was eight and Elaina was seven when the abuse ended. The time periods of the abuse overlapped almost precisely—McGaha abused Dana between March 2009 and August 2010 and Elaina between May 2009 and August 2010. Their similar ages and the similar duration of the abuse supports the trial court's emphasis on its finding that they “had the same relationship to” McGaha. The molestation of each child during the same time period and in the same location, accomplished through the same access to them, established a sufficiently connected chain of circumstances to satisfy this element.

B. Proven by the Same Evidence

The trial court found the charges would be proven “by the same evidence through the same witnesses.” The record supports the trial court's finding.

The jury heard from several witnesses who provided testimony and other evidence that proved the charges as to both children. The grandmother testified she had custody of them for “about five years” at the time of trial, which occurred one year after the abuse ended. She testified she had known McGaha “between five and six years” and explained she allowed him to live in her home because he was a friend of her daughter and had nowhere else to stay. She also testified McGaha “was a pretty big help around the house,” and at first, he got along “wonderful” with the children. She explained, “He took them places. He done things with them.”

Jessica testified about her relationship with the children and its role in their disclosing the sexual abuse to her. She described them as “very, very sick kids” because they suffer from a disease that makes them “very slow mentally.” She explained that every six weeks, she takes them to Augusta, Georgia, to see a specialist. Her testimony indicated she is very close to them. She began her description of the weekend they told her what McGaha had been doing to them by describing a conversation she had with them:

I ... went and picked them up on a Friday. I get them every chance that I can. And I was giving each of them an individual bath, having a woman-to-woman talk with them, because I feel like that's part of my responsibility.

And, as I was bathing and caring for them and giving them a heart-to-heart talk, I just threw in this statement, “y'all are little girls, and if anybody ever does anything to you, whether it be a girl or a boy, you need to tell somebody. They may tell you not to say nothing, but you need to tell somebody.”

Jessica then testified, “The very next morning, the two of them came to me ... on my front porch.” She then described what they told her about McGaha abusing them. She testified she “immediately” packed them up, took them home, and called the police. When the police arrived at their house, McGaha was asleep. Jessica testified that when he woke up “about two hours later, ... [h]e tried to go out the back door.” Jessica heard McGaha say as he was trying to leave, “Oh, shoot. The police is here. I've got to get out of here.”

Other witnesses also gave testimony that proved the charges related to both children. Officer Smith testified that during his investigation of the house, he found a pair of girl's underwear between the pillows of McGaha's bed. The underwear was admitted into evidence at trial. Investigator Hubert testified she interviewed the children and some of their family members, and after the children told her they had been sexually assaulted, she obtained a warrant for McGaha's arrest and arranged for physical examinations and forensic interviews. The pediatrician testified she performed “head to toe” physical examinations of both Dana and Elaina and tested them for sexually transmitted diseases, and the test results were negative. The pediatrician also testified during the State's rebuttal, in response to McGaha's testimony that he would have given the children Hepatitis B if he had molested them, that because the children were up-to-date on their vaccinations they had “almost no risk at all” of getting the disease. Finally, to establish the foundation for admitting the forensic interviews into evidence, the forensic interviewer testified about what forensic interviewing is, her training in it, and the procedures she followed when she interviewed the children.

Thus, a substantial portion of...