State v. Morgan

• Decision Date: 07 November 1996
• Docket Number: No. 2653,2653
• Citation: 326 S.C. 503,485 S.E.2d 112
• Parties: The STATE of South Carolina, Respondent, v. Larry MORGAN, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 112

485 S.E.2d 112

326 S.C. 503

The STATE of South Carolina, Respondent, v. Larry MORGAN, Appellant.

No. 2653.

Court of Appeals of South Carolina.

Heard Nov. 7, 1996.

Decided April 7, 1997.

Rehearing Denied May 22, 1997.

Certiorari Denied Oct. 14, 1997.

Albert V. Smith, Spartanburg, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for respondent.

HOWELL, Chief Judge:

Larry Morgan was found guilty of first degree criminal sexual conduct with a minor and was sentenced to thirty years imprisonment. He appeals, arguing that the trial court erred in admitting two expert opinions that lacked the proper basis of scientific reliability. We affirm.

I.

The victim (Morgan's step-granddaughter and age ten at trial) testified that when driving her home on February 5, 1994, Morgan "stopped on the road and he got out of the seat and walked over to me and he unzipped his pants, pulled out his private part and put it in mine." She stated that she sat upright in the vehicle seat for the entire time, and Morgan lay on top of her and moved up and down for about ten minutes. The child also testified that she told Morgan "he was hurting me, but he said tough luck." She also stated that Morgan had sexually abused her between five and ten times before the February 1994 incident, beginning when she was four or five. Morgan's attorney questioned the child about details of the event and who she told, but he did not otherwise cross-examine her about her post-incident behavior.

A physician, Dr. Jan Porter, was qualified as the State's expert in "the field of family medicine and the field of sexual abuse and the recognition of those characteristics, traits, and behavioral symptoms exhibited by victims of sexual abuse." Porter was offered to give an opinion that "yes, the child has been sexually abused even though there is no medical evidence." She first examined the child on March 1, 1994, and the child informed her that someone had touched her in her private areas on a "number of occasions." Porter stated the child's behavior was normal during the examination, except when she commenced the genital area examination, when the child became anxious and frightened and was unable to hold still. Porter abandoned any effort to try to examine her genitalia that day, gave the mother a sedative for the child, and examined her three days later. She examined the child's genitalia during this second visit and "[e]verything looked totally normal."

Porter testified that her "job as a physician is to be an advocate for" her patients. In her opinion, Porter "certainly could not rule out any sexual abuse with this exam," and her examination and observation of the child were consistent with sexual abuse. On cross-examination she testified that there is no behavioral pattern that "is absolutely diagnostic without a doubt of sexual abuse." She stated that though the physical examination neither proved nor disproved sexual abuse, there were "behavioral patterns" that made her highly suspicious, and the child's behavior itself was physical evidence that made her suspicious. Her opinion was "based partially on subjective data and is based partially on my objective observation of her behavior." Porter stated that there was no single, specific finding which influenced her opinion, rather, "[i]t was the constellation of what the child told me in her history, her behavior on two occasions when I examined her and the fact that with her exam being totally normal it did not exclude her description of what occurred." Porter stated that she did not validate the child's story, nor was she able to recall the names of the authors or studies she partially relied upon in arriving at her conclusion.

Sharon Crenshaw was qualified as the State's "expert mental health counselor in the field of evaluation and treatment of sexually abused children and posttraumatic stress." Her testimony was offered to prove that the child exhibited behavioral symptoms consistent with posttraumatic stress disorder (PTSD), rape trauma syndrome (RTS), and sexual abuse. Crenshaw stated that she has a bachelor's degree and a master's degree in special education, and she is employed as a licensed professional counselor. Although certified as a school psychologist and chief mental health counselor, Crenshaw considered herself a counselor and a psychotherapist, rather than a psychologist, and as such, there are "not really areas of expertise. In order to be licensed you have to prove your competency in several areas." Crenshaw testified that she did not videotape nor use structured techniques; instead, her methods included interviewing the child, observing the child's symptoms and behaviors, and looking at the child's drawings. Finally, she stated that she had experience working with DSS and the State "in actually questioning children in determining whether they are being truthful, or not."

Crenshaw saw the child on four occasions between July and December 1994. Based on her conversations with the child and her mother, Crenshaw recommended that she work with the child "on decreasing her distress symptoms." She "also referred [the child] for group therapy for sexual-abuse victims within her age range." Crenshaw testified that the child reported to her a sexual assault that occurred inside a van. Crenshaw described some of the symptoms of PTSD, described the child's behavior problems and diagnosed the child as having "numerous symptoms of posttraumatic stress syndrome." In Crenshaw's opinion, the child "exhibited characteristics consistent with being sexually abused."

The trial court overruled Morgan's various challenges to the expert opinions, holding that any defects went to the weight but not admissibility of their testimony, and any weaknesses could be brought out on cross-examination. While the court did not limit the purpose, it did limit the form of each expert's testimony. Neither expert gave an outright conclusion of sexual abuse or PTSD, but used only "consistent with" language.

II.

Expert testimony concerning child abuse typically comes from two sources: medical evidence provided by physicians and behavioral science evidence provided by psychiatrists, psychologists, and social workers. John E.B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 19-25 (1989). ¹ Where a physician's diagnostic impression is based on the medical as well as the behavioral aspects of child abuse, the resulting opinion is scrutinized from both perspectives. Myers, supra at 24-25, 51. While the admissibility of expert child abuse testimony is subject to attack on several fronts, Morgan raises only one challenge to the admissibility of this evidence. He argues that in both opinions, "there was no scientific basis that the facts or data was of a type reasonably relied upon by experts in the particular field forming opinions or inferences upon the subject."

Because we are bound by the supreme court's ruling in State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993), we hold that the admissibility of the two behavioral science expert opinions at issue was not subject to admissibility challenges based upon reliability. In reaching this result, we point out that the South Carolina Rules of Evidence are inapplicable here, because the July 1995 trial below was held prior to the effective date of the Rules. See Rule 1103, SCRE (Rules effective September 3, 1995). Moreover, Morgan's reliance on the federal standard for admitting scientific evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), is misplaced, because at least prior to the adoption of the SCRE, State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979), was the standard for determining the admissibility of novel scientific evidence. ²

A.

Prior to Schumpert, the case law suggests, although somewhat equivocally, that expert behavioral science evidence like that at issue must be found sufficiently reliable before being admitted into evidence. There are two distinct but overlapping lines of cases in this area. First, when expert behavioral science testimony was offered in sexual assault cases, reliability could impact admissibility, depending on the purpose for which the evidence was being introduced. Second, where any expert (not just behavioral science) opinion is based upon scientific methods and techniques, reliability could impact admissibility, depending on the novelty and general acceptance of the expert's underlying methods.

1. State v. Hudnall, 293 S.C. 97, 359 S.E.2d 59 (1987)

The admissibility of a particular piece of evidence often turns on the purpose for which it is offered, and expert opinion testimony in child abuse cases is no different. Before Schumpert, behavioral science evidence concerning syndromes and behavioral characteristics of sexual abuse victims was not permitted as substantive proof of the underlying crime itself or to bolster a "child's testimony that the crime had in fact occurred." State v. Hudnall, 293 S.C. 97, 100, 359 S.E.2d 59, 62 (1987). Instead, this type of testimony could only be offered to rehabilitate and "explain any seemingly inconsistent responses to the trauma." Id. at 100, 359 S.E.2d at 62.

Although the court did not articulate its rationale in full, Hudnall had two distinct bases. First, Hudnall was grounded on the well-established character evidence rule which prevents the admission of bolstering evidence, because a witness is presumed to be credible and have good character in the absence of an attack. See S.C. Dep't of Highways & Pub. Transp. v. ESI Invs., 322 S.C. 147, 470 S.E.2d 387 (Ct.App.1996), cert. granted, (1997); E. Warren Moise, Impeachment Evidence: Attacking and Supporting the Credibility of Witnesses in South Carolina 69 (1996); H...