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State v. Makins

Court of Appeals of South Carolina

September 4, 2019

The State, Respondent,
Ontario Stefon Patrick Makins, Appellant. Appellate Case No. 2016-002495

          Heard November 7, 2018

          Appeal From Greenville County Robin B. Stilwell, Circuit Court Judge

          Appellate Defender Taylor Davis Gilliam, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General David A. Spencer, both of Columbia; and Solicitor William Walter Wilkins, III, of Greenville; for Respondent.

          McDONALD, J.

         Ontario Stefon Patrick Makins appeals his conviction for third degree criminal sexual conduct (CSC) with a minor, arguing the circuit court erred in (1) refusing to allow Makins to cross-examine the victim (Victim) about her prior allegations of sexual abuse and (2) allowing a therapist to essentially vouch for Victim's credibility by testifying both as a fact witness regarding Victim's allegations of abuse and an expert witness on child sexual abuse trauma. We reverse and remand for a new trial.

         Facts and Procedural History

         In March 2015, training specialists from the Julie Valentine Center[1] visited Mitchell Road Elementary School in Greenville to discuss safety and "inappropriate touching" with students. Approximately two weeks later, on March 20, 2015, Victim reported to her teacher, Mary Kroske (Teacher), that she had been sexually abused. Teacher reported Victim's disclosure to the school's guidance counselor.

         Investigator David Picone of the Greenville County Sheriff's Department (GCSD), responded to the school to investigate Victim's report. Picone spoke with Victim's mother, Teacher, and Victim about Victim's disclosure. Victim reported to Investigator Picone that she was abused by her sister's boyfriend, Makins, at the home where the couple lived with their children; Victim stated the abuse began when she was five years old. Investigator Picone testified he did not question Victim, who was eight at the time, about the details of the alleged abuse. Instead, he followed GCSD's procedure for referring children under the age of twelve to the Julie Valentine Center for a forensic interview.

         On March 23, 2015, Investigator Picone interviewed Makins and informed him of Victim's allegations of sexual abuse, which Makins denied. While at the GCSD, Makins also met with the South Carolina Department of Social Services (DSS) to discuss DSS's safety plan.

         On April 21, 2015, Christine Carlberg of the Julie Valentine Center conducted a forensic interview with Victim.[2] After viewing the forensic interview, Investigator Picone determined probable cause existed to arrest Makins. On August 23, 2016, the grand jury indicted Makins for CSC with a minor, first degree; lewd act upon a minor; and CSC with a minor, third degree.

         At Makins's trial, Victim testified that on more than one occasion, Makins asked her to perform oral sex, touched her inappropriately, and showed her a sexually-oriented website on his cell phone.[3] Victim admitted she lied to the police when she reported Makins threatened to kill her if she disclosed the abuse. Although the jury found Makins "not guilty" on the CSC (first) and lewd act indictments, it found him guilty of CSC (third) with a minor. The circuit court sentenced Makins to ten years' imprisonment.

         Standard of Review

         "A trial court's decision to admit or exclude expert testimony will not be reversed absent a prejudicial abuse of discretion. An abuse of discretion occurs when the conclusions of the circuit court are either controlled by an error of law or are based on unsupported factual conclusions." State v. Chavis, 412 S.C. 101, 106, 771 S.E.2d 336, 338 (2015) (citation omitted).

         Law and Analysis

         Kristin Rich's Testimony

         Makins argues the circuit court erred in allowing therapist Kristin Rich to indirectly bolster Victim's testimony by permitting Rich to testify as both an expert in child sexual abuse trauma and as a fact witness regarding Victim's allegations of sexual abuse. We agree.

         "Expert testimony on rape trauma may be more crucial in situations where children are victims. The inexperience and impressionability of children often render them unable to effectively articulate the events giving rise to criminal sexual behavior." State v. White, 361 S.C. 407, 414-15, 605 S.E.2d 540, 544 (2004). While our supreme court has recognized an expertise in child abuse assessment, it has cautioned that "allow[ing] the person who examined the child to testify to the characteristics of victims runs the risk that the expert will vouch for the alleged victim's credibility." State v. Anderson, 413 S.C. 212, 218-19, 776 S.E.2d 76, 79 (2015). The better practice "is not to have the individual who examined the alleged victim testify, but rather to call an independent expert." Id. at 218, 776 S.E.2d at 79.

         "The assessment of witness credibility is within the exclusive province of the jury." State v. McKerley, 397 S.C. 461, 464, 725 S.E.2d 139, 141 (Ct. App. 2012). "[A] witness may not give an opinion for the purpose of conveying to the jury-directly or indirectly-that she believes the victim." Briggs v. State, 421 S.C. 316, 324, 806 S.E.2d 713, 717 (2017). "Specifically, it is improper for a witness to testify as to his or her opinion about the credibility of a child victim in a sexual abuse ...

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