State v. McKerley, No. 4957.

• Court: Court of Appeals of South Carolina
• Writing for the Court: FEW
• Citation: 397 S.C. 461,725 S.E.2d 139
• Decision Date: 21 May 2012
• Docket Number: No. 4957.
• Parties: The STATE, Respondent, v. Jimmy Paul McKERLEY, Appellant.

397 S.C. 461
725 S.E.2d 139

The STATE, Respondent,
v.
Jimmy Paul McKERLEY, Appellant.

No. 4957.

Court of Appeals of South Carolina.

Heard Jan. 11, 2012.
Decided March 28, 2012.
Rehearing Denied May 21, 2012.

[725 S.E.2d 140]

Chief Appellate Defender Robert M. Dudek, of Columbia, and Public Defender E. Charles Grose, Jr., of Greenwood, for appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for respondent.

FEW, C.J.

[397 S.C. 462]Jimmy Paul McKerley appeals his convictions for criminal sexual conduct with a minor in the first degree and lewd act upon a child under sixteen. McKerley's primary argument is that the trial court erred in permitting an expert in forensic interviewing to give testimony that bolstered the credibility of [397 S.C. 463]the victim. We agree. We reverse McKerley's convictions and remand for a new trial.

I. Facts and Procedural History

McKerley was tried for sexually abusing his daughter, who was seven years old at the time of the alleged incidents. The victim testified in detail as to the sexual abuse she claimed McKerley committed. The State's next witness was Heather Smith, who testified

[725 S.E.2d 141]

regarding two interviews she conducted with the victim. The trial court qualified Smith as an expert in forensic interviewing and child abuse assessment. Smith described generally what forensic interviewers do and the specific procedures they follow in an investigation into possible child sexual abuse. She then explained what she did in this case and the conclusions she reached regarding the alleged abuse by McKerley. McKerley objected to numerous statements within Smith's testimony, arguing the statements should be excluded because they commented on the credibility of what the victim stated in the interviews and improperly bolstered her testimony at trial.

The jury found McKerley guilty. The trial court sentenced him to twenty-five years in prison for the criminal sexual conduct conviction and fifteen years concurrent for the lewd act conviction.

II. State v. Jennings

McKerley argues on appeal that the trial court erred in admitting any of Smith's testimony. In one particular statement, Smith improperly testified “both interviews that I conducted with her, I found them to be compelling for sexual abuse.” In State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011), our supreme court held a virtually identical statement by a forensic interviewer—each child “ ‘provide[d] a compelling disclosure of abuse by [appellant]’ ”—was inadmissible for the same reason argued by McKerley. 394 S.C. at 480, 716 S.E.2d at 94 (quoting the forensic interviewer). The State argues Jennings is distinguishable from this case because the offending statement in Jennings was contained in a written report, whereas the statement here was introduced as live [397 S.C. 464]testimony. We find Jennings controlling and hold the trial court erred in admitting this portion of Smith's testimony.

However, the State argues this case is distinguishable from Jennings in an additional manner—the other evidence of guilt in this case is overwhelming and therefore the error was harmless. To address the State's harmless error argument, we are required to consider the remainder of McKerley's objections to Smith's testimony, in the context of the other proof of McKerley's guilt. See394 S.C. at 482, 716 S.E.2d at 96 (Kittredge, J., concurring) (stating the determination of harmless error is “necessarily context dependent”).

III. Forensic Interviewer's Testimony

The assessment of witness credibility is within the exclusive province of the jury. State v. Wright, 269 S.C. 414, 417, 237 S.E.2d 764, 766 (1977). Therefore, witnesses are generally not allowed to testify whether another witness is telling the truth. See Burgess v. State, 329 S.C. 88, 91, 495 S.E.2d 445, 447 (1998) (holding it is improper “pitting” to ask a witness “to comment on the truthfulness ... of an adverse witness”); State v. Sapps, 295 S.C. 484, 485–86, 369 S.E.2d 145, 145–46 (1988) (holding it was improper for solicitor to “ask[ ] appellant if each of the other three witnesses was lying”). Similarly, witnesses may not improperly bolster the testimony of other witnesses. See Smith v. State, 386 S.C. 562, 569, 689 S.E.2d 629, 633 (2010) (finding a “forensic interviewer's ... opinion testimony improperly bolstered the Victim's credibility”). In Jennings, Justice Pleicones stated: “For an expert to comment on the veracity of a child's accusations of...