The State v. Baker
| Decision Date | 15 June 2010 |
| Docket Number | No. 4698.,4698. |
| Citation | 700 S.E.2d 440,390 S.C. 56 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Mark BAKER, Appellant. |
OPINION TEXT STARTS HERE
Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Cecil Kelly Jackson, of Sumter, for Respondent.
Mark Baker appeals his convictions for committing a lewd act upon a minor, arguing the trial court erred in: (1) refusing to quash the indictment; (2) denying his motion for a continuance; (3) limiting his cross-examination of a witness; and (4) qualifying a witness as an expert in forensic interviewing. We affirm.
Baker was indicted on five counts of committing a lewd act upon a minor and one count of criminal sexual conduct with a minor. These charges arose after Baker's two nieces made allegations that Baker was abusing them. The younger niece accused Baker of abusing her older sister, Baker's older niece. The older niece indicated Baker abused her by rubbing his penis on her buttocks, back, and other areas of her body. She testified that Baker kissed her, digitally penetrated her, and attempted to make her perform oral sex on him. The younger niece stated Baker had also molested her.
The original indictments alleged these events occurred from May 2002 through September 2004. However, the five counts of lewd act were amended to expand the time frame back to June 1998. Baker moved to quash the indictments because they were unconstitutionally overbroad. Baker also moved the trial court for a continuance, arguing he needed more time to prepare for trial because two weeks prior to the trial the time frame was expanded by four years. The trial court denied both of these motions.
Prior to trial, the State moved to limit cross-examination of the younger niece. During the same month the younger niece accused Baker of abuse, she was expelled from school for one year for a narcotics violation. She also received a disciplinary infraction for skipping school. Over Baker's objection, the trial court agreed to the State's request that Baker not be allowed to cross-examine the younger niece about her school disciplinary records.
During the trial, the State sought to qualify Gwen Herod, a victim assistance officer with the Sumter County Sheriff's Department, as an expert in forensic interviewing and assessment of child abuse. Despite Baker's objection, the trial court qualified Herod as an expert in forensic interviewing only. Ultimately, Baker was convicted of four of the five counts of lewd act. He was acquitted of criminal sexual conduct and one count of lewd act. The trial court sentenced Baker to concurrent fifteen-year terms for three of the counts of lewd act and a fifteen-year consecutive term for the fourth count, for a total of thirty years imprisonment. This appeal followed.
In criminal cases, this court reviews errors of law only. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). An appellate court is bound by the trial court's factual findings unless they are clearly erroneous. Id.
Baker argues the trial court erred by: (1) failing to quash the indictments; (2) denying his motion for a continuance; (3) limiting cross-examination of the younger niece about her school disciplinary records; and (4) qualifying Herod as an expert in forensic interviewing. We address each argument in turn.
Baker argues the trial court erred in denying his motion to quash the indictments because the time frame was overbroad and prevented him from adequately preparing a defense. We disagree.
An indictment is merely a notice document. State v. Gentry, 363 S.C. 93, 102-03, 610 S.E.2d 494, 500 (2005). The true test of the sufficiency of an indictment is not whether it could be made more definite and certain. Id. Rather, the court must look at the indictment with a practical eye in view of all the surrounding circumstances. Id. The sufficiency of the indictment is determined by whether: (1) the offense charged is stated with sufficient certainty and particularity to enable a court to know what judgment to pronounce, and the defendant to know what he or she is called upon to answer and whether he or she may plead an acquittal or conviction thereon, and (2) whether it apprises the defendant of the elements of the offense that are intended to be charged. Id.
A two-prong test is utilized to determine the sufficiency of an indictment involving a purportedly overbroad time period. State v. Tumbleston, 376 S.C. 90, 98-99, 654 S.E.2d 849, 853-54 (Ct.App.2007). The first prong is whether time is a material element of the offense, and the second is whether the time period covered by the indictment occurred prior to the return of the indictment by the grand jury. Id.
Regarding the first prong, time is not a material element of committing a lewd act on a minor. Id. at 101, 654 S.E.2d at 855. Likewise, time is not an element of criminal sexual conduct with a minor. State v. Thompson, 305 S.C. 496, 501, 409 S.E.2d 420, 423 (Ct.App.1991). In the present case, Baker was indicted on five counts of committing a lewd act upon a minor and one count of criminal sexual conduct with a minor. Time is not an essential element in either of these offenses; thus, the first prong is met. See State v. Nicholson, 366 S.C. 568, 574, 623 S.E.2d 100, 102-03 (Ct.App.2005) ().
As to the second prong, the offenses complained of occurred from June 1998 through September 2004, and Baker was served notice of the amended indictments on October 3, 2006. The time period covered by the indictments occurred prior to the return of the indictments by the grand jury. Thus, the second prong is met, and the indictments were not overly broad.
Additionally, an indictment passes legal muster when it charges the crime substantially in the language of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood. Tumbleston, 376 S.C. at 98, 654 S.E.2d at 853.
The amended indictments for lewd act state:
That MARK BAKER, a person over the age of fourteen (14) years, did in Sumter County between the period of June 1, 1998 and September 1, 2004 violate Section 16-15-140 of the Code of Laws of South Carolina ... in that ... MARK BAKER did willfully and lewdly commit or attempt to commit a lewd and lascivious act upon or with the body, or any part or member thereof, of a child under the age of sixteen (16) years, to wit: [older niece] (Date of Birth: 1/6/89), with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or of the said child.
Section 16-15-140, which defines the crime of committing or attempting to commit a lewd act on a child, states:
It is unlawful for a person over the age of fourteen years to willfully and lewdly commit or attempt a lewd or lascivious act upon or with the body, or its parts, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the person or of the child.
S.C.Code Ann. § 16-15-140 (Supp.2009).
The indictment for criminal sexual conduct with a minor states:
That MARK BAKER did in Sumter County between the period of June 1, 2004 and September 1, 2004, willfully and unlawfully commit criminal sexual conduct with a minor in the second degree by engaging in sexual battery with a
minor who was at least fourteen (14) years of age but who was less than sixteen (16) years of age, to wit: [older niece] (Date of birth: 1/6/89) and the actor was in a position of familial, custodial, or official authority to coerce the victim to submit or was older than the victim, to wit: vaginal digital intrusion and cunnilingus, in violation of Section 16-3-655(3) of the Code of Laws of South Carolina....
Section 16-3-655, which defines criminal sexual conduct, states:
A person is guilty of criminal sexual conduct with a minor in the second degree if: (1) the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age; or (2) the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official
authority to coerce the victim to submit or is older than the victim.
S.C.Code Ann. § 16-3-655 (Supp.2009).
The indictments clearly identify the elements of lewd act and criminal sexual conduct. The indictments substantially track the statutory language so plainly that the nature of the charged offense can be easily understood. The indictments establish the offense of lewd act on a minor as defined by section 16-15-140 and the offense of criminal sexual conduct as defined by section 16-3-655. Baker's contention regarding the sufficiency of the indictments is without merit, and we discern no abuse of discretion in the trial court's ruling.
Baker argues the trial court erred in denying his motion for a continuance based on the expanded time frame in the amended indictments. We disagree.
The trial court's decision to deny a motion for continuance is a matter within its discretion. State v. Lytchfield, 230 S.C. 405, 409, 95 S.E.2d 857, 859 (1957). This court will not reverse the trial court unless there was an abuse of discretion that resulted in prejudice. Id.
Baker was served notice of the amended indictments on October 3, 2006, and his trial commenced on November 13, 2006. Baker had more than one month to prepare for the trial. Additionally, the...
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