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State v. White

Court of Appeals of South Carolina

March 30, 2016

The State, Respondent,
v.
George White, Appellant

         Heard October 13, 2015.

          Appeal From Charleston County. Thomas L. Hughston, Jr., Circuit Court Judge. Appellate Case No. 2013-000638.

         Rachel Atkin Hedley, Nelson Mullins Riley & Scarborough, LLP, and Chief Appellate Defender Robert Michael Dudek, both of Columbia, for Appellant.

         Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General David A. Spencer, both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

         FEW, C.J. KONDUROS and LOCKEMY, JJ., concur.

          OPINION

         FEW, C.J.:

         George White appeals his convictions for lewd act upon a child[1] and criminal sexual conduct with a minor in the second degree, arguing (1) the trial court erred in admitting into evidence a video of a forensic interview with the victim and allowing the jurors to use a transcript of the interview while watching the video, (2) the trial court erred in finding the victim's statement in the interview provided particularized guarantees of trustworthiness, (3) the trial court erred in qualifying the forensic interviewer as an expert in the dynamics of child abuse, (4) the trial court erred in denying his motion for a directed verdict because the State failed to present evidence of sexual battery--one of the elements of criminal sexual conduct with a minor in the second degree, (5) the admission of the forensic interview deprived him of due process, (6) the trial court erred in allowing the forensic interviewer to offer her opinion on the victim's credibility, and (7) the trial court erred in allowing the forensic interviewer to offer improper character evidence. We affirm.

         I. Admissibility of the Victim's Statement and Use of a Transcript

         At trial, the State sought to admit into evidence a video of the victim's forensic interview, but the parties and the trial court were unable to clearly hear the audio of the interview. During a recess, a court reporter prepared a transcript of the audio for the jury to use while watching the video. The trial court found the forensic interview video admissible, explained the audio problems to the jurors, and allowed them to follow the transcript while watching the video. White argues that because the victim's statement in the video was not clearly audible, the trial court abused its discretion in admitting the video and allowing the jury to use the transcript.

         Subsection 17-23-175(A) of the South Carolina Code (2014) provides that in a criminal proceeding, an out-of-court statement made by a child under the age of twelve is admissible if four requirements are met, including, " (2) an audio and visual recording of the statement is preserved on film, videotape, or other electronic means." The purposes of subsection 17-23-175(A)(2) include giving the jurors direct access--audio and visual--to the victim's statements to enable the jurors to more accurately evaluate the victim's credibility. Under subsection 17-23-175(A), therefore, there is an important difference between using a transcript to assist the jury in listening to the statement and using a transcript to replace an inaudible statement. In this case, the video of the forensic interview contained some sound but was not clearly audible.

         When faced with the problem of poor audio quality, the trial court must use its discretion in determining whether the admission of a forensic interview meets the requirement of and is consistent with the purposes of subsection 17-23-175(A)(2). The trial court in this case demonstrated it understood the purposes of subsection 17-23-175(A)(2) when it explained to the jurors they must " listen and watch" and " decide what was said and done on the video, not what th[e] transcript is." Because the trial court focused on the purposes of the statute and fashioned a solution to the audio problem consistent with those purposes, we hold the court did not abuse its discretion in allowing the jurors to use the transcript and in admitting the forensic interview.[2]

         II. Remaining Issues

         We affirm as to the remaining issues pursuant to Rule 220(b), SCACR, and the following authorities:

         1. As to White's argument that the trial court erred in finding the victim's statement provided particularized guarantees of trustworthiness, we find the trial court acted within its discretion. See S.C. Code Ann. ยง 17-23-175(B) (2014) (providing when determining whether a statement contains particularized guarantees of trustworthiness, the trial court may consider five factors: " (1) whether the statement was elicited by leading questions; (2) whether the interviewer has been trained in conducting investigative interviews of children; (3) whether the statement represents a detailed account of the alleged ...


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