Heard March 4, 2014.
As Corrected January 2, 2015.
Appeal From Spartanburg County. John C. Hayes, III, Circuit Court Judge. Appellate Case No. 2012-211430.
Appellate Defender Robert M. Dudek, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, for Respondent.
GEATHERS, J. SHORT, J., concurs. FEW, C.J., concurring in part, and dissenting in part.
[410 S.C. 193] GEATHERS, J.:
Appellant Jefferson Perry was convicted of committing a lewd act on a minor. Appellant challenges his conviction, arguing the trial court erred in: (1) charging the jury that time is not a material element of committing a lewd act on a minor; and (2) admitting into evidence a DVD recording of the minor victim's two interviews with a forensic examiner. We affirm.
During the week of Christmas 2007, Victim, who was nine years old, stayed with her father, a few relatives, and family friends at her uncle's mobile home in Inman, South Carolina. At some point during the week, Appellant and his cousin, Brad, slept overnight at the mobile home. Victim returned to [410 S.C. 194] the home she shared with her mother and stepfather in early January 2008. Later that month, Victim disclosed to her mother that Appellant had touched her inappropriately one night while she was sleeping at the mobile home.
As a part of the subsequent police investigation, Victim twice interviewed with forensic interviewer Wiley Garrett at the Children's Advocacy Center in Spartanburg, South Carolina. During the first interview, on February 7, 2008, Victim disclosed that she was sleeping on her uncle's living room floor when she awoke to find Appellant with his hand down her pants. According to Victim, the alleged incident occurred " after my Daddy Jimmy's birthday and Christmas." Victim indicated that at the time of the alleged incident, her cousin, Brittany, who was also staying at the mobile home, had recently given birth to a baby boy. At the second interview, on February 14, 2008, Victim made a similar disclosure of sexual touching. Victim, however, did not identify Brittany as one of the individuals present in the mobile home at the time of the alleged incident.
The grand jury indicted Appellant on one charge of committing or attempting to commit a lewd act on a child under the age of sixteen. The case proceeded to trial on April 10-12, 2012. At the start of trial, the trial court held an in camera hearing to determine the admissibility of a DVD recording of both forensic interviews. During the in camera hearing, Garrett provided a detailed description of his approach to questioning a child who may have been sexually abused. Following Garrett's testimony, the recording was played for the court. Defense counsel objected to the admission of the recording on the ground that it would bolster Victim's testimony. The trial court determined the recording was admissible under section 17-23-175 of the South Carolina Code (2003), which allows the admission of out-of-court statements by a child under the age of twelve when certain requirements are met.
Victim, who was thirteen years old at the time of trial, testified in detail concerning the alleged incident. She asserted [410 S.C. 195] the alleged incident occurred on December 29, 2007. When questioned by the solicitor how she knew the exact date, Victim replied that the alleged incident happened " a day or two before" her father's birthday on December 31. Victim identified several people who were present at the mobile home on the night of the alleged incident. She stated: " It was me, [my uncle] Bryan, [my cousin] Bryanne, my dad, my Nana, my dad's girlfriend, and [my cousin] Paul."
Victim's mother, Stacy Gregory, testified Victim had a scheduled visitation with her father during the week of Christmas 2007. Gregory stated she picked Victim up from the mobile home sometime around New Year's Day 2008. According to Gregory, on January 29, 2008, Victim disclosed that Appellant had inappropriately touched her.
The State also presented the testimony of Wiley Garrett, who was qualified as an expert in forensic interviewing. Garrett testified he conducted two fact-finding interviews with Victim and one joint interview with Victim's mother and stepfather. The trial court admitted into evidence the DVD recording of
Garrett's two forensic interviews with Victim, which was played for the jury. On cross-examination, Garrett confirmed that during one of the interviews Victim told him " Brittany [who]. . . just had a baby" was present in the mobile home on the night of the alleged incident.
Appellant testified he stayed at the mobile home " only once." Although Appellant could not recall the exact date he spent the night at the mobile home, he indicated it was a few days after Brittany had her baby. Appellant admitted that he had about four or five beers that night; however, he denied he was drunk. Appellant adamantly denied touching Victim inappropriately.
Appellant's cousin, Elizabeth Blackwell, testified she was in a relationship with Victim's uncle and had previously invited Appellant to stay at the mobile home. According to Blackwell, Victim and Appellant were present in the mobile home at the same time on only one occasion. Blackwell claimed that on this occasion her daughter, Brittany, was also present in the mobile home, along with Brittany's then-newborn son. Blackwell indicated her grandson was born in early January 2008. Brittany corroborated Blackwell's testimony [410 S.C. 196] regarding the timeframe. Additionally, Brittany presented her son's birth certificate, which was admitted into evidence.
After the completion of testimony, defense counsel moved for a directed verdict, arguing that it was impossible for the incident to have occurred on either of the dates listed on the indictment. Specifically, defense counsel pointed to the fact that Brittany's son was born in early January 2008. The State countered that the only contradictory evidence concerned whether Appellant touched Victim. Additionally, the State argued the case did not involve a time-specific incident. In response, defense counsel noted that Victim stated in one of the forensic interviews that Brittany had already had her baby at the time of the alleged incident. The trial court denied defense counsel's motion, reasoning the timing issue went to Victim's credibility.
During the charge conference, the State requested the trial court instruct the jury that time is not a material element of the offense of committing a lewd act on a minor. Defense counsel objected to the requested instruction and engaged in the following colloquy with the trial court:
Mr. Hall: [W]e have a specific date alleged. They presented it several times. The child testified, if I'm not mistaken, that it occurred the weekend before my daddy's birthday. Daddy's birthday was [December 31st]. Very specific and I think to do that is giving, carving out another special consideration for a child victim that cuts in the rights of my client. So, Your Honor, I would oppose that.
The Court: I will charge it, but you know that the other interesting wrinkle about this particular issue is that the mother, Mrs. Gregory, testified that she picked up, [Victim], on New Year[']s Day. So --.
Mr. Hall: That -- picked [Victim] up, yes, sir.
The Court: Right. Which is before Brittany had her baby.
Mr. Hall: This - - yes, sir, that's another thing that I believe, on my side, is physically impossible for it to have happened beforehand, yes, sir.
The Court: Well, that's your argument to the jury.
[410 S.C. 197] Thereafter, the trial court gave the requested instruction. The trial court also charged the jury on its duty to consider the credibility and believability of the witnesses.
The jury ultimately found Appellant guilty of committing a lewd act on a minor. Defense counsel moved for a new trial. The trial court denied the motion and sentenced Appellant to five years' imprisonment, suspended on the service of three years' probation. The trial court also required Appellant to enroll in the registry of child abuse and neglect, and to enroll in sex offender counseling. This appeal followed.
ISSUES ON APPEAL
1. Did the trial court err in charging the jury that time is not a material element of committing a lewd act on a minor?
2. Did the trial court err in admitting into evidence a DVD recording of Victim's two interviews ...