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State v. Smith, Opinion

Court of Appeals of South Carolina

December 17, 2014

The State, Respondent,
v.
Arthur Smith, Appellant

Heard: February 4, 2014.

Page 213

Appeal From Beaufort County. Roger M. Young, Sr., Circuit Court Judge. Appellate Case No. 2011-200306.

Breen Richard Stevens, of Orangeburg, and Appellate Defender Benjamin John Tripp, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Christina J. Catoe Bigelow, both of Columbia, for Respondent.

SHORT, J. FEW, C.J., concurs. GEATHERS, J., concurs in part and dissents in part in a separate opinion.

OPINION

Page 214

[411 S.C. 164] SHORT, J.:

Arthur Smith appeals his conviction for criminal sexual conduct with a minor in the first degree. He contends the trial court erred in: (1) admitting testimony of the forensic interviewer regarding Smith's identity; (2) allowing the State's expert to testify regarding the relationship between the length of delay in disclosure of sexual abuse and the credibility of the disclosure; and (3) permitting the victim to refresh his recollection by reading his testimony from Smith's previous trial. We affirm.

[411 S.C. 165] I. The First Trial

Smith was first tried for this crime in November 2004. After the jury found Smith guilty, the trial court granted him a new trial " on the ground he was denied a fair trial, because the testimony of the victim . . . was corrupted . . . by the coaching of [his] aunt." State v. Smith, 372 S.C. 404, 406, 642 S.E.2d 627, 628-29 (Ct. App. 2007), vacated on other grounds, 383 S.C. 159, 679 S.E.2d 176 (2009). This court affirmed. Id. at 406, 642 S.E.2d at 629. On writ of certiorari, the supreme court agreed the trial judge did not abuse his discretion or commit an error of law and remanded the case for a new trial. Id.

II. The Second Trial

The second trial began on September 19, 2011. The State presented evidence that in approximately 1997, when the victim was five years old, his family moved from Buffalo, New York, to Bluffton, in Beaufort County. The parents separated in 1999. Mrs. Smith retained primary custody of the children, and Smith had generous visitation. The alleged sexual assaults occurred while the victim visited his father during this period of separation. The victim, who was nineteen at the time of the second trial, was six years old when Smith began abusing him and eight when the abuse ended.

The victim testified that on " [m]ore than three" occasions during 1999 and 2000, his father " would make me do things to him and do things to me." He testified his father " would suck my penis and stick his penis in my butt. . . . He made me suck his penis too and try to put my penis in his butt also." On cross-examination, the victim admitted he did not " have a good recall of everything that happened in 2000," and that in a pretrial hearing the previous day he " didn't remember . . . that there was oral sex until [he] read a transcript" from the first trial to refresh his memory.

The victim's two siblings[1] testified Smith also sexually abused them. The victim's brother testified that " multiple times" while the family was living in Buffalo, Smith performed

Page 215

[411 S.C. 166] oral and anal sex on him and forced him to reciprocate. This abuse occurred when the brother was between the ages of six and eight. The brother testified Smith threatened to hurt Mrs. Smith if he told anyone about the abuse. The victim's sister testified Smith abused her after the family moved to Bluffton. She testified that on " countless" occasions when she was six and seven years old, Smith forced her to perform oral sex on him and would " touch" her vagina and " butt" with his hands. She also testified Smith told her not to tell anybody.

Beginning in November 2001, the victim and his two siblings lived in the custody of their aunt and her husband. Soon after moving in with the aunt, the victim exhibited poor behavior, began counseling, and was placed in a SOAP[2] program.

The victim first reported his father's sexual assaults to his aunt in January 2002, but no one reported the crimes to law enforcement until May 2003. The victim testified he did not tell anyone earlier because " [Smith] told me that he would kill me or break my bones if I told anybody" and " I was scared." The victim's brother and sister also did not disclose to anyone that their father had abused them. The victim's aunt admitted she learned in January 2002 that Smith sexually abused the victim, but she did not disclose this to anyone until May 2003. She explained her delay in disclosure was because, " We were still working on taking care of [the victim's] health issues."

Andres Florencio, a criminal investigator for the Beaufort County Sheriff's Office (BCSO), testified the BCSO used forensic interviewers from Hope Cottage, a children's advocacy center, to interview child victims of crime. Florencio testified without objection that in May 2003, the victim and his aunt came to the BCSO and reported that the victim's father sexually assaulted the victim in 1999 and 2000.

Kendra McIlvee Twitty, a forensic interviewer and counselor at Hope Cottage, explained in detail the techniques and procedures a forensic interviewer uses to interview a child, and testified the victim disclosed he had been abused. She testified, " [The victim] disclosed that he had to suck his dad's penis . . . ." Smith's counsel immediately objected, and the trial [411 S.C. 167] court sustained the objection on the basis that any testimony quoting the victim's statements must be limited to " the time and place" of the incident. Twitty then testified, " When I asked about time frame, he said that it happened since he was, like, six or seven years old, . . . . I'm not exactly sure of the number, but he said it had been happening for a number of years." As to place, the forensic interviewer testified the victim told her " it happened in South Carolina in a trailer and they would be in his dad's bedroom." The trial court overruled Smith's objection to this last statement. Immediately thereafter, the assistant solicitor showed the forensic interviewer a copy of her report to " refresh your recollection as to the time frame of the abuse." She then testified, " I had written [the victim] reported that he was about six or seven years old when his dad started to do these things to him." The trial court overruled Smith's immediate objection to this statement.

The State's final witness was Tod Lynch-Stanley, a licensed clinical social worker and director of Family Reconstructions and SOAP, a private practice in Georgia. The trial court found Lynch-Stanley qualified as an expert in sexual deviancy. Lynch-Stanley explained he began treating the victim sometime after 2000. When Lynch-Stanley began treatment, the victim had not revealed he was sexually abused.

The State asked Lynch-Stanley to explain " a little bit about what is delayed disclosure in a sexual abuse setting. Lynch-Stanley explained there are " many reasons for [delayed disclosure]." On cross-examination, Smith's counsel asked, " What did you mean by a long period of delayed disclosure?" Lynch-Stanley answered, " I would say a long disclosure in general might be anything longer than two or three months. . . . Some

Page 216

disclosures occur after two or three months. Some occur after two years or 20 years." Counsel asked, " What about three years?" Lynch-Stanley replied, " That would be a fairly long delayed disclosure." The following dialogue occurred at the beginning of the State's redirect examination:

Q: Does the length of the delay in the disclosure have any -- in your opinion, does it erode the credibility of the disclosure?
[411 S.C. 168] Smith: Objection, ...

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