Vanover v. State

• Decision Date: 03 February 2021
• Docket Number: Opinion No. 5799,Appellate Case No. 2016-001917
• Citation: Vanover v. State, 433 S.C. 31, 856 S.E.2d 160 (S.C. App. 2021)
• Parties: Glenn E. VANOVER, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Court of Appeals

433 S.C. 31

856 S.E.2d 160

Glenn E. VANOVER, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2016-001917

Opinion No. 5799

Court of Appeals of South Carolina.

Submitted March 2, 2020

Filed February 3, 2021

Rehearing Denied April 5, 2021

Jonathan McKey Milling, of Milling Law Firm, LLC, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Melody Jane Brown, and Deputy Attorney General Donald J. Zelenka, all of Columbia, for Respondent.

HEWITT, J.:

Glenn Edwin Vanover (Petitioner) appeals the circuit court order denying his application for Post-Conviction Relief (PCR). A jury convicted him in 2012 of two counts of first degree criminal sexual conduct with a minor under section 16-3-655(A)(1) of the South Carolina Code (2015). He received concurrent twenty-six-year sentences. This court affirmed the convictions and sentence on appeal.

Petitioner argues his trial counsel was ineffective in failing to investigate and present evidence that the alleged victim—Petitioner's daughter—previously made and recanted an allegation of inappropriate conduct against a middle school teacher. We agree with the PCR court that Petitioner did not establish this evidence would have been admitted or that he was prejudiced. Thus, we affirm.

BACKGROUND

This is a "delayed reporting" case. Daughter was sixteen years old at the time of trial and testified the sexual abuse occurred when she was younger. She alleged this began sometime between her second and fourth grade years and stopped when she was in fifth grade, around the age of ten or eleven.

Trial Testimony

Daughter described how the alleged abuse began and progressed. She said the first instance happened when she was at home with Petitioner and her older brother. Daughter claimed Petitioner invited her to watch TV in his bedroom and groped her while they were both clothed. She said Petitioner told her not to tell anyone.

Daughter explained the next instance of abuse involved sexual intercourse after Petitioner again asked Daughter to come into his bedroom. She testified she was certain they had intercourse because it was painful.

Daughter said she did not call out for help because she was afraid. She said Petitioner told her not to tell anyone about the interaction and warned her that she would be in a lot of trouble. Daughter claimed Petitioner abused her again on other occasions and that this always occurred while Melanie Vanover (Mother) was at work.

Around the time Daughter was in the fifth grade, the family moved into a house on property owned by Petitioner's mother (Grandmother). Daughter claimed Petitioner abused her once in this residence when she was about ten years old. As noted above, Daughter said the abuse stopped when she was ten or eleven.

Several witnesses acknowledged Daughter first told Mother about the alleged abuse roughly two years later. There is conflicting testimony about whether Daughter recanted these first allegations. We will discuss that shortly.

Two years after that first disclosure—and roughly four years after the alleged abuse stopped—Daughter disclosed the abuse to a teacher, Michael Horne. Criminal charges followed shortly thereafter.

Petitioner's defense relied on potential inconsistencies in Daughter's memory about the abuse's frequency. Daughter initially said the abuse happened about three times per month but later said it did not happen every month and instead occurred "very occasionally." Daughter ultimately said Petitioner abused her about three times a year, not three times a month.

Petitioner and other family members also claimed Daughter manufactured the allegations as revenge. Mother testified Daughter's first disclosure occurred on her brother's sixteenth birthday and appeared to be retaliation for Petitioner refusing to let Daughter take a car ride with her brother and his friends. Mother said Daughter "showed no emotion whatsoever" when discussing the abuse, gave differing accounts of the abuse over time, and eventually admitted she was lying.

Grandmother agreed with Mother's account, as did Petitioner. Petitioner and Mother hypothesized Daughter's disclosure to her teacher two years later resulted from Petitioner punishing Daughter for poor grades and skipping school.

Daughter disputed that her first disclosure occurred on her brother's birthday and adamantly denied recanting the allegations. Daughter said her family confronted her about the allegations and shunned her when she refused to recant.

Several witnesses testified about the disclosures that led to criminal charges. Horne—Daughter's teacher—said Daughter cried. The school resource officer, Deputy Jonathan Grooms, testified Daughter told him that the abuse occurred when she was between the ages of eight and ten and that the incidents happened in her home. Grooms recalled that Daughter had a blank look on her face, did not want to talk to him, and that he had to pull the information out of her.

Investigator Marty Longshore interviewed Daughter as well. He explained Daughter told him the abuse occurred over a period of time when she was between the ages of eight and eleven. He said Daughter was reserved, shy, and reluctant to write a statement, but Daughter eventually spoke to him about what happened and provided a statement. He remembered Daughter cried and was upset, reserved, and shook while writing the statement.

An assessment worker with the Department of Social Services interviewed Daughter as well. This person visited Petitioner's residence to investigate the allegations and said that when she told Petitioner the reason for her visit, Petitioner announced that nobody had ever accused him of sexually abusing Daughter and that "he and his wife had a wonderful sex life, so why would he need to go elsewhere."

PCR

The alleged ground for PCR relates to evidence that Daughter previously accused a middle school teacher of some sort of inappropriate interaction. This appears to have occurred in the same general time period when Daughter first told Mother about the alleged sexual abuse at issue here.

The precise allegation is unclear. One of Daughter's seventh grade teachers—we will call him John Doe—explained at the PCR hearing that he received a phone call from Petitioner and Mother the day after he gave Daughter detention for talking with another student during class. According to Doe, Mother said Daughter accused Doe of asking Daughter and one of her friends about the color of their underwear, when they had their periods, and whether they had boyfriends.

Daughter was not on the phone call and Doe never spoke to Daughter about the allegation. Doe explained that he informed school administration and that he understood the allegation to have been recanted the next day. Doe also said the school took no action against him and Daughter was removed from his classroom.

Neither Mother nor Daughter testified at the PCR hearing. As noted above, Doe spoke only with Mother and with school administration about this incident.

Trial counsel gave a different account of this incident at the PCR hearing. Counsel explained he had been aware Daughter previously made some sort of complaint against a former teacher and said he understood the incident to have been minor. Counsel said Petitioner and other members of the family did not provide "a lot of substance" when counsel discussed it with them. Counsel said he learned of the incident from a letter Mother wrote. Mother's letter said Daughter "almost had a teacher fired because she [Daughter] said he [Doe] said, ‘what color is your underwear.’ But he [Doe] said, ‘no one wants to see that, pull your pants up.’ "

Trial counsel said there were several reasons he did not speak with Doe about this incident. He said that he took Mother's letter at face value and that neither the letter nor his conversations with Petitioner and Petitioner's family suggested the incident was noteworthy or relevant. Counsel explained that he could see himself telling a teenage girl to pull her pants up and that nobody wanted to see her underwear. Counsel also said nobody ever asked him to locate Doe, contact Doe, or call Doe as a witness.

Petitioner disputed trial counsel's recollection. He testified he told trial counsel about Doe, assumed counsel would speak to Doe as part of his investigation, and always assumed counsel would call Doe as a witness. Petitioner believed the incident with Doe was evidence Daughter "had a propensity" to make up "stories."

The PCR court denied relief. The court did not specifically rule on whether trial counsel was deficient. The court grounded its denial of relief on the finding that Petitioner failed to establish Doe's testimony would have been admissible or that trial counsel's failure to introduce Doe's testimony prejudiced Petitioner.

ISSUE ON APPEAL

Whether the PCR court erred in concluding Petitioner did not establish that Doe's testimony about the alleged false allegation would be admissible.

STANDARD OF REVIEW

"Our standard of review in PCR cases depends on the specific issue before us. We defer to a PCR court's findings of fact and will uphold them if there is evidence in the record to support them." Smalls v. State , 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018) ; see also Strickland v. Washington , 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (noting "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact"). "We review questions of law de novo, with no deference to [the PCR court]." Smalls , 422 S.C. at 180–81, 810 S.E.2d at 839.

LAW/ANALYSIS

Petitioner's argument has two components. First, Petitioner claims trial counsel was deficient for not speaking with Doe. Second, Petitioner claims counsel was deficient for failing to present evidence of Daughter's false allegation against Doe.

As noted above, the PCR court did not rule on whether trial counsel was deficient for not speaking with Doe, but instead grounded its...