April 17, 2018
from Beaufort County Carmen T. Mullen, Circuit Court Judge.
OF CERTIORARI TO THE COURT OF APPEALS
Appellate Defender Susan B. Hackett, of Columbia, for
Attorney General Alan Wilson and Assistant Attorney General
William M. Blitch, Jr., both of Columbia, for Respondent.
James Simmons Jr. was convicted of criminal sexual conduct
(CSC) involving two minors (Minor 1 and Minor 2, collectively
the "minors"). The minors are Petitioner's twin
sons. A key feature of the State's case was the
challenged testimony of a pediatrician admitted pursuant to
Rule 803(4), SCRE, which provides a hearsay exception for
statements made in connection with medical diagnosis or
treatment. The court of appeals affirmed, first questioning
whether Petitioner's challenge was preserved, and then
concluding the pediatrician's testimony was properly
admitted. We reverse the court of appeals and remand for a
new trial. For the reasons we will explain, Petitioner
preserved his objection to the pediatrician's purported
Rule 803(4), SCRE, testimony, and the admission of the
hearsay statements in this case was blatantly improper. This
improper testimony was nothing more than hearsay shrouded in
a doctor's white coat, in violation of the South Carolina
Rules of Evidence.
twin sons accused him of sexually assaulting them while they
were approximately eight years old. Petitioner was convicted
by a jury of two counts of criminal sexual conduct (CSC) with
a minor. This appeal centers on whether the admission of a
pediatrician's testimony, conveying Minor 1's
statements, was appropriate under the hearsay exception for
statements made for and reasonably pertinent to medical
diagnosis or treatment. These statements were made to the
minors' regular treating pediatrician two years after the
alleged abuse occurred. The statements alleged more than the
claim of sexual abuse but also named Petitioner as the
perpetrator, alleged that pornography had been viewed and
that a secret pact had been made. We further find this error
was not harmless beyond a reasonable doubt. Therefore, we
reverse the court of appeals and remand to the trial court
for a new trial.
minors were born in 2000. From the time that they were eight
months old, the twin minors were cared for by relatives. The
minors grew up on the family's land-a property with
several houses on it located in Saint Helena Island, South
Carolina. Throughout their childhood, the minors were treated
by their regular pediatrician, Dr. James Simmons.  In 2008,
while the minors were staying with their cousin Rose,
Petitioner returned to the family property to live in the
family house located next door to Rose's home. The
minors spent time at both houses and visited with Petitioner.
Petitioner left the family house in the summer of 2009. Near
the end of 2009, Rose requested additional assistance with
the minors from their granduncle Johnnie and grandaunt
testified that she and Johnnie began watching the minors in
2009. During one of their visits, Cynthia testified that she
suspected something was wrong, especially as to Minor 1.
Cynthia, however, did not confront Minor 1, bring him to a
doctor, or report her concern to law enforcement. Instead,
Cynthia returned Minor 1 and his brother to Rose because she
was uncertain of what was wrong and did not want to jump to
conclusions or wrongly blame someone.
2010, the minors moved to Johnnie and Cynthia's home,
which is located in Early Branch, South Carolina. Johnnie and
Cynthia eventually adopted the minors in the spring of 2011.
Prior to adopting the minors, Cynthia was suspicious that the
minors had been sexually abused. Cynthia took the minors to a
counselor, who concluded nothing was wrong with them.
the adoption, Cynthia confronted the minors in September of
2011, and they allegedly disclosed that Petitioner had
sexually abused them at Saint Helena Island approximately two
years earlier. The next day, Cynthia made an appointment to
take the minors to Dr. Simmons. Cynthia informed Dr. Simmons
that the minors had disclosed they were sexually abused.
Simmons interviewed Minor 1 and, after Minor 1 made several
statements regarding the sexual abuse, Dr. Simmons terminated
the interview to contact law enforcement and report the
was charged with two counts of CSC with a minor in the first
degree. At trial, the State called several witnesses: Dr.
James Simmons, Investigator Jeremiah Fraser, cousin and
previous caretaker Rose Simmons, Minor 1, Minor 2, forensic
interviewer Ashley Bratcher, adoptive mother Cynthia Simmons,
adoptive father Johnnie Simmons, and Nurse Kristin Dalton.
first witness that the State called was Dr. Simmons, who was
qualified as an expert in pediatric medicine. It is a portion
of his testimony that is at issue in this appeal. After
qualifying him, the State questioned Dr. Simmons about his
examination of the minors:
Q: And Doctor, can you tell me what -- in
talking to Minor 1 what he told you happened?
[Defense Counsel]: Your Honor, I object.
It's hearsay. It's objectionable under 803.
And certainly, he could limit it to the child's
disclosure of date and time, and that's it.
[The State:] Judge, we'd say that this
is under the hearsay exception, 803. Excuse me, let
me pull it up. 803.
The Court: For medical
[The State]: For medical -- purpose of
medical diagnosis, ...