In the Matter of the Care and Treatment of Gilbert Gonzalez, Petitioner. 
Heard: February 4, 2014.
Appeal From Charleston County. The Honorable Deadra L. Jefferson, Circuit Court Judge. Appellate Case No. 2012-210606.
AFFIRMED AS MODIFIED.
Appellate Defender LaNelle Cantey DuRant, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Deborah R.J. Shupe, and Chief Deputy Attorney General John W. McIntosh, all of Columbia, for Respondent.
JUSTICE BEATTY. TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J., concurring in result only in a separate opinion.
[409 S.C. 625] ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Gilbert Gonzalez was found bye a jury to meet the definition of a sexually violent predator (SVP) under South Carolina's SVP Act, S.C. Code Ann. § § 44-48-10 to -170 (Supp. 2013). The Court of Appeals affirmed. In re the Care & Treatment of Gonzalez, Op. No. 2012-UP-003, (S.C. Ct. App. filed Jan. 4, 2012). On certiorari, Gonzalez contends the Court of Appeals erred in affirming his SVP status because the State inappropriately asserted during closing argument that the jury could draw an adverse inference at trial from the absence of a psychiatrist Gonzalez retained to perform an independent evaluation. We affirm as modified.
The predicate for Gonzalez's referral to the SVP program was his convictions for offenses involving three young girls who were four, five, and six. Gonzalez pled guilty on June 4, 1985 to committing a lewd act on a minor for lifting up the skirt of a four-year-old and fondling her. He was sentenced to nine months in prison. Gonzalez was already on parole for another crime when he committed the lewd act offense.
On June 3, 1985, the day before his guilty plea to the above offense, Gonzalez fondled a five-year-old girl. On April 28, 1986, while again out on bond, Gonzalez engaged in oral sex with a six-year-old girl, fondled her, and rubbed her genital area with his penis until he ejaculated. On November 5, 1986, Gonzalez pled guilty to lewd act on a minor for the offense against the five-year-old and to criminal sexual conduct (CSC) with a minor in the first degree for the offense involving the six-year-old. Gonzalez was sentenced to thirty years in prison on the CSC charge and a consecutive ten years in prison for the lewd act.
In January 2006, prior to Gonzalez's potential release, the multidisciplinary team found there was probable cause to believe Gonzalez was an SVP and referred the matter to the prosecutor's review committee. See S.C. Code Ann. § 44-48-30(1)(a)-(b) (Supp. 2013) (defining an SVP as " a person who: (a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual
[409 S.C. 626] violence if not confined in a secure facility for long-term
control, care, and treatment" ).
The committee agreed with this finding and filed a petition in the circuit court for civil commitment proceedings. The circuit court made a determination of probable cause and appointed Dr. Pamela Crawford to perform a psychiatric evaluation of Gonzalez. The circuit court thereafter granted Gonzalez's request to have an independent psychiatric evaluation performed by Dr. Thomas V. Martin.
A trial was held in the circuit court in February 2009. Dr. Crawford testified on behalf of the State and stated that, after examining Gonzalez and reviewing all of the pertinent records in his file, she had diagnosed him as having pedophilia and an anti-social personality disorder.
Dr. Crawford stated that pedophilia cannot be cured, but part of controlling it is for the individual to recognize the condition and to learn specific ways to resist inappropriate conduct. Dr. Crawford testified that she had a real concern regarding Gonzalez's risk for reoffending because, although he pled guilty to three charges, he maintained he did not " recall" doing certain acts of a sexual nature with the victims, and he stated that his sexual misconduct was caused by an ex-girlfriend who had become angry with him and put a spell on him. She stated the only crime that Gonzalez clearly admitted to her was the CSC offense on the six-year-old, and her review of the laboratory data from SLED showed Gonzalez's semen was found in the vagina and vulva of that victim.
Dr. Crawford testified pedophilia is a " hard-wired sexual attraction to children" and that a person has to admit responsibility for past misconduct and must " be very, very motivated" to combat this predisposition in order to reduce the risk of committing future acts of sexual violence against very young children. Dr. Crawford additionally noted that Gonzalez " had four major disciplinary infractions" during his incarceration, which also indicated a propensity for violence
and an inability to control his behavior, even when incarcerated. Dr. Crawford stated in her medical opinion Gonzalez met the criteria for designation as an SVP, and he was in need of long-term control, care, and treatment at a secured facility.
[409 S.C. 627] During his testimony, Gonzalez acknowledged that he had pled guilty to the offenses involving sexual misconduct, but he denied full responsibility as he variously contended that he did not commit the crimes or that he did not commit all of the elements of the crimes. Gonzalez repeatedly maintained that he had been under a spirit or spell that had been placed on him by an ex-girlfriend, or he had been overtaken by a " demon" of sexual perversion, which he was in the process of overcoming.
He stated Dr. Crawford was wrong when she testified that he had only admitted the third incident involving the CSC charge. Gonzalez testified that he did tell the four-year-old victim in the first incident to lift her dress up, but he insisted that he never placed his hands on her. He completely denied the second incident with the five-year-old, stating he " never did nothing to her, never did lay [his] hands on her." However, he acknowledged that he did commit the third offense involving CSC on a six-year-old.
Gonzalez's girlfriend, Pamela Donahue, testified that Gonzalez had admitted to her that he committed the CSC offense, but she echoed Gonzalez's statements about having spells placed on him. She said she believed this meant if the devil wanted someone to do something, he would " misguide" the person.
During closing arguments, both the State and Gonzalez invoked the missing witness rule, i.e., arguing that the jury could infer that a party's failure to call a particular witness meant the witness's testimony would have been unfavorable to that party. Specifically, as is relevant here, the State argued the jury could infer the absence of Gonzalez's independently retained ...