State v. Acker ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Thomas Stephen Acker, Appellant.
Appellate Case No. 2016-002368
Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge
Opinion No. 5892
Heard October 10, 2019 – Filed January 19, 2022
AFFIRMED
Appellate Defenders Adam Sinclair Ruffin and Kathrine
Haggard Hudgins, both of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., Assistant Attorney General Susan Ranee Saunders,
and Assistant Attorney General Jonathan Scott Matthews,
all of Columbia; and Solicitor Barry Joe Barnette, of
Spartanburg; all for Respondent.
MCDONALD, J.: Thomas Stephen Acker appeals his convictions for first-degree
criminal sexual conduct (CSC) with a minor and disseminating obscene material to
a minor, arguing the circuit court abused its discretion in (1) admitting expert
testimony addressing the behavioral characteristics of child sexual abuse victims
and (2) admitting his statement regarding a pornography addiction. Acker further
contends the circuit court erroneously denied his motion for a directed verdict on
the dissemination charge. We affirm.
Facts and Procedural History
During the summer of 2014, Child's parents sent her to a counselor in response to
her depression and because she was intentionally cutting herself. During her
counseling sessions, Child disclosed that Acker, her grandmother's (Grandmother)
ex-husband, sexually abused her at Acker and Grandmother's home, which she
visited often after school when she was five years old.1 Her parents filed a police
report, and Child was referred to the Children's Advocacy Center, where she
underwent a forensic interview. During the interview, Child recounted that the
sexual abuse at Grandmother's house began when she was in kindergarten and
lasted until she was eight or nine years old.
Child testified at trial that while she was at Grandmother's house, Acker touched
her inappropriately, made her touch his genitals, exposed himself, and masturbated
in front of her.2 Acker told Child he would kill Grandmother if she told anyone
about the abuse and that no one would believe her. Additionally, Child testified
Acker showed her pornography on his computer while holding her in a chokehold
and telling her, "You need to grow up and be like that and people will love you if
you're like that." Such conduct happened on more than one occasion and occurred
until she was seven years old.
Grandmother and Acker were married for five years; they divorced in July 2008.
The two remained in contact after their divorce, and Acker contacted Grandmother
through emails and letters and by showing up at her job. Grandmother noted
Acker mentioned pornography in one of his letters and admitted he had been
addicted to pornography for fifty-two years.
After the State presented its case, Acker moved for a directed verdict, which the
circuit court denied. Thereafter, Acker testified he and Grandmother lived at his
house during their five-year marriage. Acker worked from home in an office at the
front of the house while Grandmother worked in an office in the back. Acker
denied abusing Child and testified he never showed her anything on his computer
1
Grandmother and Acker were married at the time of the alleged abuse but
divorced several years before Child's disclosure.
2
Child was seventeen years old at the time of trial.
nor put her in a chokehold. He admitted he told Grandmother he "had had some
problems, but it [was] not entirely pornography" and claimed he never showed
anyone else pornography in his home.
On cross-examination, when asked if he had an addiction to pornography, Acker
responded that he "had some contact with pornography from early ages" and
acknowledged he told Grandmother he had been addicted to pornography for fifty-
two years, including the years of the alleged abuse. However, Acker testified there
was no truth to Child's allegations of abuse, claiming, "[t]hey are all fantasy tales
that she dreamed up."
The jury convicted Acker of first-degree CSC with a minor and disseminating
obscene material to a minor twelve years of age or younger. The circuit court
sentenced him to twenty years' imprisonment on the CSC conviction and a
concurrent five years on the dissemination charge, with credit given for time
served.
Standard of Review
"In criminal cases, the appellate court sits to review errors of law only." State v.
Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). Therefore, appellate courts are
"bound by the trial court's factual findings unless they are clearly erroneous." Id.345 S.C. at 6, 545 S.E.2d at 829. "The admission or exclusion of evidence is a
matter addressed to the sound discretion of the trial court and its ruling will not be
disturbed in the absence of a manifest abuse of discretion accompanied by
probable prejudice." State v. Kromah, 401 S.C. 340, 349, 737 S.E.2d 490, 494-95
(2013) (quoting State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48
(2006)). "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).
Law and Analysis
I. Expert Testimony
Acker argues the circuit court erred in admitting Shauna Galloway-Williams's
testimony on risk factors, grooming, and the behaviors displayed by child sexual
abuse victims because her testimony did not provide information outside the
ordinary knowledge of the jury and did not assist the jury in understanding the
evidence or determining a fact in question. Acker asserts that although Galloway-
Williams testified there was a unique set of characteristics associated with victims
of child sexual abuse, she failed to identify these specific characteristics. We
disagree.
During an in camera hearing, Galloway-Williams testified she is the executive
director of the Julie Valentine Center, where she provides clinical supervision and
interviewed child victims.3 She is a licensed professional counselor who has
provided counseling for children and adults for fifteen years, and has over 150
hours of skills-based training, specifically in the area of interviewing and assessing
children regarding allegations of child maltreatment. Although she is a clinician
and had not published articles at the time of her testimony, she was familiar with
publications in the field as she attended trainings based on peer-reviewed articles
and continues to read peer-reviewed material in her continuing education. At the
time of this trial, Galloway-Williams had testified as an expert thirty-six times.
Galloway-Williams explained the field of child sex abuse dynamics includes issues
common to child sexual abuse cases, such as delayed disclosure, grooming, false
allegations, false denials, risk factors, and the behaviors children can demonstrate
when they have been sexually abused. There are unique characteristics associated
with how children disclose abuse, how they react to abuse, and how offenders
abuse children, and these can be counterintuitive to what people believe normal
reactions should be. Galloway-Williams testified that children delay disclosing
abuse for several reasons, including: they are usually abused by someone they
know, trust, and love; they fear what could happen to them and others if they report
their abuse; they feel responsible, guilty, or ashamed about the abuse; they may be
unable to articulate the abuse depending on their age; and they may have been
threatened by their abuser. A majority of the cases Galloway-Williams had been
associated with involved delayed disclosure, and there are common factors
attributable to this phenomenon.
Regarding the reliability of her testimony, Galloway-Williams stated she would
testify based on her experience, education, and training. Research in the field has
been based on case studies involving known abuse in an ongoing effort to consider
behavioral similarities among abused children. As to the question of scientific
reliability, Galloway-Williams noted clinicians in her field cannot seek to replicate
results because one cannot expose children to abuse conditions for testing
purposes. Her field is a "soft science" based on "longitudinal studies, case studies,
3
The Julie Valentine Center is a child abuse and sexual assault recovery center,
which provides education, intervention, and treatment.
actual cases and reviewing those and looking at the similarities or differences in
those and based on that type of research." A study in this area might "look at a
certain number of cases of children where there's known sexual abuse …, and they
may look at all of those cases and determine if there is a specific condition that's
similar among those cases, for instance." When asked if she was aware of any
research or cases that had found a delayed disclosure unreliable, she acknowledged
there had been times when a child made a delayed disclosure and then, following
an interview or investigation, it was determined abuse did not occur. Upon further
cross-examination, Galloway-Williams admitted that the Julie Valentine Center
does not track those instances involving delayed disclosures later determined to be
false.
At the end of her in camera testimony, the State declared it intended to offer
Galloway-Williams as an expert in child maltreatment and child abuse dynamics,
including grooming, risk factors, false disclosures and allegations, denials and
delayed disclosures, and behaviors children can exhibit after abuse. Acker
objected, arguing Galloway-Williams's testimony that children delay disclosure
because they were abused by someone they loved or trusted or because they feared
their abuser, as well as her testimony addressing the impact abuse can have on a
child's life, were all topics within the ordinary knowledge of the jury. Acker
further argued the testimony was unreliable as it was based on the witness's own
personal experiences, rather than the literature or science. Additionally, Acker
asserted the State's sole purpose in presenting the testimony was to bolster the
victim's credibility, and the prejudicial effect of this testimony substantially
outweighed its probative value.
The circuit court disagreed, finding Galloway-Williams's testimony was outside
the ordinary knowledge of the jury. Regarding reliability, the circuit court found
the testimony was based on both the witness's personal experiences and the
literature, noting the impossibility of testing for behavioral characteristics. Citing
Brown4 and Jones,5 the circuit court concluded Galloway-Williams's testimony was
reliable based "upon the requisite education, training and experience" and did not
constitute improper bolstering because she was testifying as a blind expert only as
to matters within her area of expertise, which might or might not be applicable to
4
State v. Brown, 411 S.C. 332, 768 S.E.2d 246 (Ct. App. 2015), abrogated on
other grounds by State v. Jones, 423 S.C. 631, 817 S.E.2d 268 (2018).
5
State v. Jones, 417 S.C. 319, 790 S.E.2d 17 (Ct. App. 2016), aff'd as modified,
423 S.C. at 631, 817 S.E.2d at 268.
the characteristics of this child's case. The circuit court explained:
[T]he witness doesn't know anything about this case
because she's not talked to anybody about it; she's not
interviewed any witness; she's not interviewed the child;
she's not interviewed the parents; she's not interviewed
the police officers; she's not interviewed the counselors;
she's not interviewed the Children's Advocacy
interviewer. So she knows nothing about the case, and
she didn't even hear the witness' testimony.
So there's nothing that she could that would—nothing she
could reasonably do to bolster the witness' testimony
because she doesn't even know what it is.
The fact that she testifies to things that might be similar
to those things experienced by the witness is not
considered bolstering.
Finally, the circuit court found the prejudicial effect of Galloway-Williams's
testimony did not substantially outweigh its probative value for Rule 403 purposes.
See Rule 403, SCRE ("Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.").
In the presence of the jury, Galloway-Williams testified generally about delayed
disclosure, risk factors, grooming, and the behavioral characteristics of victims of
abuse. She explained there are several risk factors that make children more
vulnerable to abuse, including substance abuse in the home; a child's age—with
younger children being more vulnerable to abuse because they depend on adults
for caregiving; and a child's special needs or disabilities because such children
need more assistance from adults. Finally, children with behavioral problems may
be more vulnerable to abuse because "if they are troublemakers or seen as bad
children and then they do make a disclosure, an outcry, sometimes they're not
believed because they have a previous history of getting in trouble or making
things up."
Galloway-Williams explained "grooming" referred to an adult developing a
trusting relationship and might include giving a child special attention or gifts or
spending more time with the child in an effort to normalize sexual behavior. She
opined that grooming could affect a child's disclosure because a child may have
developed a trusting and close relationship with his or her abuser, have received
special attention, or been abused by someone they loved, therefore, impacting their
ability to disclose the abuse. A child might display an array of behaviors after
being sexually abused, including depressive tendencies, nervousness, anxiety, self-
harm, or no behavioral effect at all. Galloway-Williams discussed different
disclosures, including partial disclosures, accidental disclosures, purposeful
disclosures, and false disclosures—including false denials. When referencing false
disclosures and false denials, Galloway-Williams explained a false denial occurs
when there is known abuse yet the child denies being abused, while a false
allegation occurs when a child makes a disclosure that is later determined to be
unfounded. When asked if false denials or false disclosures were more common,
Galloway-Williams responded, "What's more common would be the false denial
where we—where a child denies that something has happened when, in fact,
something did occur."
A. Subject Matter of the Testimony and Ordinary Knowledge of the Jury
In Jones, 423 S.C. at 636, 817 S.E.2d at 271, our supreme court stated, "the law in
South Carolina is settled: behavioral characteristics of sex abuse victims is an area
of specialized knowledge where expert testimony may be utilized." See also State
v. Anderson, 413 S.C. 212, 218, 776 S.E.2d 76, 79 (2015); Brown, 411 S.C. at 342,
768 S.E.2d at 251 (concluding "the unique and often perplexing behavior exhibited
by child sex abuse victims does not fall within the ordinary knowledge of a juror"
and, thus, the general behavioral characteristics of child sex abuse victims "are
more appropriate for an expert qualified in the field to explain to the jury, so long
as the expert does not improperly bolster the victims' testimony"), abrogated on
other grounds by Jones, 423 S.C. at 637-38, 817 S.E.2d at 271 (abrogating Brown
to the extent the court indicated it was appropriate to consider voir dire responses
when evaluating the need for expert testimony); see generally State v. Weaverling,
337 S.C. 460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999) ("Expert testimony
concerning common behavioral characteristics of sexual assault victims and the
range of responses to sexual assault encountered by experts is admissible.").
We find Galloway-Williams's testimony on grooming, the behaviors children may
display after abuse, false denials, and risk factors falls within this recognized area
of expertise. See Jones, 423 S.C. at 636-37, 817 S.E.2d at 271 (determining an
expert's testimony about delayed disclosure fell within the commonly recognized
category of behavioral characteristics of sex abuse victims); see generally Brown,
411 S.C. at 337, 768 S.E.2d at 249 (noting the expert testified children delay
disclosure for many reasons, including grooming by the perpetrator). Galloway-
Williams's testimony provided context for the jury and assisted jurors in
understanding how a change in a person's behavior might indicate abuse, why a
child might delay disclosure, and how special attention and grooming affect a
child's ability to disclose abuse. See Weaverling, 337 S.C. at 474-75, 523 S.E.2d at
794 (alteration by court) ("[B]oth expert testimony and behavioral evidence are
admissible as rape trauma evidence to prove a sexual offense occurred where the
probative value of such evidence outweighs its prejudicial effect. . . . It assists the
jury in understanding some of the aspects of the behavior of victims and provides
insight into the sexually abused child's often strange demeanor." (citations
omitted)). Thus, the circuit court properly concluded the subject matter of
Galloway-Williams's testimony was beyond the ordinary knowledge of the jury.
See Jones, 423 S.C. at 638, 817 S.E.2d at 271 ("Whether the subject matter of a
proposed expert's testimony is outside the realm of lay knowledge is a
determination left solely to the trial judge and his or her sense of what knowledge
is commonly held by the average juror.").
B. Reliability
Acker next asserts the circuit court erred in finding Galloway-Williams's testimony
reliable by erroneously relying on her education, training, and experience, which
related to her qualifications, not the reliability of her testimony. He contends the
State failed to establish the testimony itself was reliable and analogizes this case to
those in which the circuit court failed to make any reliability determination at all.
Additionally, he argues Galloway-Williams did not provide the necessary specific
research, publications, training information, or case studies on which she relied to
support her testimony and failed to identify the unique characteristics she testified
were associated with child sexual abuse.
"All expert testimony must satisfy the Rule 702 criteria, and that includes the trial
court's gatekeeping function in ensuring the proposed expert testimony meets a
reliability threshold for the jury's ultimate consideration." State v. White, 382 S.C.
265, 270, 676 S.E.2d 684, 686 (2009). Rule 702 provides, "If scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise." Rule 702, SCRE. "There is no formulaic approach
for determining the foundational requirements of qualifications and reliability in
non-scientific evidence." Chavis, 412 S.C. at 108, 771 S.E.2d at 339.
In Chavis, the defendant appealed his convictions for multiple crimes involving
unlawful sexual conduct with a minor, arguing the circuit court erred in allowing
an expert witness to testify about a forensic interviewer's report because the State
failed to demonstrate the expert's reliability. 412 S.C. at 104, 107, 771 S.E.2d at
337, 339. Our supreme court found that although the expert had "extensive
experience and training," the State failed to show the expert's individual reliability
because there was no evidence establishing the expert's conclusions were accurate.
Id. at 107-08, 771 S.E.2d at 339. The court explained that "evidence of mere
procedural consistency does not ensure reliability without some evidence
demonstrating that the individual expert is able to draw reliable results from the
procedures of which he or she consistently applies." Id. at 108, 771 S.E.2d at 339.
Thus, the court concluded the circuit court erred in allowing the expert's testimony
because the threshold reliability requirement of Rule 702 was not met. Id.
The Jones defendant appealed his convictions for first-degree CSC with a minor,
second-degree CSC with a minor, and two counts of lewd act upon a child, arguing
the circuit court erred in permitting the same child abuse dynamics expert involved
in this case, Galloway-Williams, to testify because there was no evidence
supporting the reliability of her opinions, including whether the opinions were
subjected to peer review. 417 S.C. at 326, 331, 790 S.E.2d at 21, 23, aff'd as
modified by Jones, 423 S.C. at 631, 817 S.E.2d at 268. However, this court
distinguished Chavis because the Jones expert was not qualified as a forensic
interviewer and did not discuss any conclusions garnered from the RATAC6
method of interviewing victims; rather, the expert testified in general terms about
child sex abuse dynamics, including delayed disclosure and the responses of non-
offending caregivers. Id. at 332, 790 S.E.2d at 24. This court concluded the record
supported the circuit court's reliability finding because the expert "testified that her
methods were published in articles in professional journals and trade publications,
subjected to peer review, uniformly accepted and recognized within the area of
child sex abuse experts and professionals, and relied upon for sexual abuse
counseling and treatment." Id. at 333, 790 S.E.2d at 24. The court further found
the expert testified she had given multiple presentations on the role of non-
offending caregivers and delayed disclosure, her employer applied the principles
she described in her testimony, and other counselors used said principles. Id. at
6
RATAC stands for Rapport, Anatomy, Touch, Abuse Scenario, and Closure. Our
supreme court acknowledged in Kromah, 401 S.C. at 357 n.5, 737 S.E.2d at 499
n.5, "that RATAC is not without its critics." See Chavis, 412 S.C. at 107 n.6, 771
S.E.2d at 339 n.6.
333, 790 S.E.2d at 24-25. Accordingly, the court concluded the circuit court did
not abuse its discretion in performing its gatekeeping function as to reliability. Id.
at 333, 790 S.E.2d at 25.
Our supreme court affirmed as modified in Jones, finding Chavis distinguishable
because the Jones expert did not testify about the RATAC protocol or forensic
interviewing methods. 423 S.C. at 639, 817 S.E.2d at 272. Rather, "her testimony
focused on explaining the concept of delayed disclosure and the role of
nonoffending caregivers in the dynamics of sexual abuse." Id. Regarding the
reliability of the expert's testimony, the court noted the expert testified: (1) she
could provide citations to the court identifying articles serving as the basis for her
opinions; (2) "her opinions were supported by peer-reviewed professional journals
and trade publications, all of which were uniformly accepted and recognized by
child sexual abuse experts and professionals"; (3) "she participates in the peer
review process and has given numerous presentations on the subject"; and (4) "she
was unaware of any organizations that found her methods unreliable and that, out
of all cases involving delayed disclosure of child abuse, statistically two to four
percent are considered false allegations." Id. Thereafter, the court concluded the
expert "met the threshold reliability requirement when she testified her methods
were published in professional articles and trade publications, subject to peer
review, and uniformly accepted and relied upon by other professionals in the
field." Id. at 640, 817 S.E.2d at 272.
Similarly, we find the circuit court did not abuse its discretion in determining
Galloway-Williams's testimony here satisfied the reliability threshold. As in
Jones, Chavis is distinguishable because Galloway-Williams was not qualified as a
forensic interviewer and did not testify as to the specifics of this child's disclosure.
Instead, she testified as a blind expert on child sexual abuse dynamics, addressing
general concepts and characteristics of victims in such cases. Her testimony was
based on her experience and the research conducted in her field, and this research
was based on case studies for which the researchers analyzed cases of known abuse
to determine whether there were similarities among cases. Thus, the circuit court
did not err in admitting Galloway-Williams's testimony after properly considering
its reliability.
C. Bolstering
Acker contends Galloway-Williams indirectly bolstered Child's credibility when
she testified that false denials are more common than false allegations because it
"suggested that the jury should believe the minor witness because children are
more likely to deny that abuse occurred than make a false allegation of abuse."
Acker further challenges the admission of Galloway-Williams's testimony that
children with behavioral problems are more vulnerable to abuse because they are
less likely to be believed.
Galloway-Williams's testimony did not constitute improper bolstering. She was a
blind expert; she never met Child or her parents, and she had no information about
the circumstances of Child's case. See e.g., Anderson, 413 S.C. at 218-19, 776
S.E.2d at 79 ("The better practice, however, is not to have the individual who
examined the alleged victim testify, but rather to call an independent expert. To
allow 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.").
First, Galloway-Williams's testimony regarding disclosures by children with
behavioral problems did not improperly bolster Child's credibility because the
testimony was included in her general testimony addressing multiple risk factors
that make certain children more vulnerable to abuse. See State v. Barrett, 416 S.C.
124, 131-33, 785 S.E.2d 387, 390-91 (Ct. App. 2016) (finding an expert's
testimony regarding general behavioral characteristics did not improperly vouch
for the victim's credibility because she never directly or indirectly commented on
the victim's veracity and truthfulness or the credibility of the victim's claims and
she did not limit her testimony to only those behavioral characteristics displayed
by the victim). She did not comment on Child's credibility, and she did not seek to
link her general characteristics testimony to any type of behavioral reaction Child
may—or may not—have exhibited. See id.; Brown, 411 S.C. at 345, 768 S.E.2d at
253 (finding the expert did not improperly bolster the victim's credibility because
she testified in broad terms about the reasons victims delay disclosing abuse and
she never applied her testimony to the victims in the case).
Additionally, there was no evidence that Child had behavioral problems such that
others would be less likely to credit her disclosures. Rather, the testimony
indicated Child did not exhibit behavioral or emotional problems until she began
cutting her arms. Thus, as in Brown, we do not believe Galloway-Williams's
general testimony in this case about children with behavioral problems potentially
not being believed bolstered Child's credibility. See State v. Cartwright, 425 S.C.
81, 96, 819 S.E.2d 756, 764 (2018) (concluding the independent expert did not
improperly bolster the victims' credibility because she never testified she believed
the victims; rather, her testimony generally explained the potential reasons why
children recant and the behaviors common to sexually abused children).
Nor did Galloway-Williams's testimony about false denials being more common
than false allegations improperly bolster Child's credibility. As stated previously,
Galloway-Williams did not testify regarding Child; rather, she testified as to the
general behavioral reactions of children who have been abused, risk factors, and
the concepts of grooming and delayed disclosure. Although we acknowledge
Galloway-Williams's testimony could be interpreted as having insinuated Child's
testimony was credible because false allegations are not as common as false
denials, Galloway-Williams's statement here is distinguishable from those in cases
in which our courts have found there was no way to interpret the challenged
statements other than as bolstering a victim's credibility. Compare State v.
Makins, 433 S.C. 494, 505, 860 S.E.2d 666, 672 (2021) (holding dual expert's
testimony served foundational purpose other than to vouch for minor's credibility
but cautioning that the use of "one witness as both a characteristics expert and the
treatment witness is a risky undertaking" and the better practice is to use a blind
witness as Anderson urged), with State v. McKerley, 397 S.C. 461, 465-67, 725
S.E.2d 139, 142-43 (Ct. App. 2012) (finding although the expert never directly
stated she believed the victim, the jury could not interpret the expert's testimony in
any way other than that she believed the victim was telling the truth); see also
Chavis, 412 S.C. at 109, 771 S.E.2d at 340 (finding the circuit court erred when
allowing an expert witness to testify about her recommendation that the victim "not
be around the [defendant] for any reason" because this testimony could only be
interpreted as indicating the expert believed the victim's allegations).
Here, Galloway-Williams never treated Child and never testified she believed
Child, nor did she provide any indication that she had considered Child's specific
disclosures. See State v. Jennings, 394 S.C. 473, 479-80, 716 S.E.2d 91, 94 (2011)
(first alteration by court) (concluding the circuit court erred in admitting a forensic
interviewer's report stating the victims "provide[d] a compelling disclosure of
abuse" by the defendant because "[t]here is no other way to interpret the language
used in the reports other than to mean the forensic interviewer believed the
children were being truthful")). Galloway-Williams never linked her general
statements to this case or Child's credibility. See Brown, 411 S.C. at 345, 768
S.E.2d at 253 (finding an expert did not improperly bolster the victim's credibility
when she testified that seventy to eighty percent of children delay disclosing abuse
because she never applied this statistic to the victims in that case); see generally
Weaverling, 337 S.C. at 474-75, 523 S.E.2d at 794-95 (concluding an expert's
testimony that it was very common for a victim of abuse to commit subsequent
abuse on another person "simply explained the effect" of the prior abuse on the
individual's subsequent conduct); State v. Smith, 411 S.C. 161, 172, 767 S.E.2d
212, 218 (Ct. App. 2014) (stating that although the State's question about whether
the length of the delay in the disclosure eroded the credibility of the disclosure
invited vouching, there was no reversible error because the expert explained
credibility and delayed reporting were unrelated and the expert did not provide an
opinion about the victim's truthfulness). Because Galloway-Williams's testimony
did not improperly bolster Child's credibility, the circuit court did not abuse its
discretion in admitting it.
D. Rule 403, SCRE
Acker next argues the circuit court erred in declining to find the probative value of
Galloway-Williams's testimony was substantially outweighed by its prejudicial
effect. Acker contends the testimony about risk factors, grooming, and behaviors
exhibited by victims of abuse was not relevant and lacked probative value because
it did not assist the jury in determining any fact at issue or in understanding the
evidence. According to Acker, this expert testimony did not prove or disprove
anything but instead, "tended to suggest a decision based on unreliable testimony
that improperly suggested to the jury that the expert believed the minor witness."
Relevant evidence "may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . ." Rule 403, SCRE. "'Relevant
evidence' means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Rule 401, SCRE. "Unfair
prejudice does not mean the damage to a defendant's case that results from the
legitimate probative force of the evidence; rather it refers to evidence which tends
to suggest decision on an improper basis." State v. Gilchrist, 329 S.C. 621, 630,
496 S.E.2d 424, 429 (Ct. App. 1998) (quoting United States v. Bonds, 12 F.3d 540,
567 (6th Cir. 1993)). "A trial judge's decision regarding the comparative probative
value and prejudicial effect of evidence should be reversed only in exceptional
circumstances." State v. Collins, 409 S.C. 524, 534, 763 S.E.2d 22, 28 (2014)
(quoting State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003)).
Galloway-Williams's testimony was relevant and assisted the jury in understanding
child sexual abuse victims' behavior and how children react differently to abuse:
some demonstrate self-harm, depression, or anxiety, while others exhibit no
outward change in behavior at all. See Jones, 417 S.C. at 336-37, 790 S.E.2d at
26-27 (finding the probative value of the expert's testimony outweighed its
prejudicial effect because it helped the jury understand the victim's behavior and
demeanor and was "crucial" in explaining why child victims "are often unable to
effectively relay incidents of criminal sexual abuse"); Brown, 411 S.C. at 347-48,
768 S.E.2d at 254 (concluding the expert's testimony was highly probative and
helped the jury understand sex abuse victims' behavior and did not unfairly
prejudice the defendant); Weaverling, 337 S.C. at 475, 523 S.E.2d at 794 (stating
behavioral evidence "assists the jury in understanding some of the aspects of the
behavior of victims and provides insight into the sexually abused child's often
strange demeanor"). This testimony further assisted the jury in understanding why
victims delay disclosure, how close relationships can affect disclosure, and how
certain factors may increase the risk of abuse. Therefore, we agree with the circuit
court that this testimony was relevant and probative.
Significantly, Galloway-Williams did not testify that Child displayed behaviors
associated with abuse or that she harmed herself and suffered depression. In fact,
she did not—and as observed by the circuit court, could not—speak to Child's
behavior at all. Rather, she generally explained behaviors commonly exhibited by
sex abuse victims, risk factors, and grooming. Thus, we find no abuse of
discretion in the circuit court's admission of this testimony. See Rule 403, SCRE
(stating relevant evidence is inadmissible if the unfair prejudice substantially
outweighs its probative value); Brown, 411 S.C. at 347-48, 768 S.E.2d at 254;
Gilchrist, 329 S.C. at 630, 496 S.E.2d at 429 ("All evidence is meant to be
prejudicial; it is only unfair prejudice which must be avoided." (quoting United
States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989))).
II. Directed Verdict
Acker argues the circuit court erred in denying his motion for a directed verdict on
the charge of dissemination of obscene material to a minor because the State failed
to prove the videos he allegedly forced Child to watch were obscene and Child's
testimony alone was insufficient to prove obscenity. We disagree.
Section 16-15-355 of the South Carolina Code (2015) provides a person "eighteen
years of age or older who knowingly disseminates to a minor twelve years of age
or younger material which he knows or reasonably should know to be obscene
within the meaning of Section 16-15-305 is guilty of a felony . . . ." Material is
obscene pursuant to section 16-15-305(B) if:
(1) to the average person applying contemporary
community standards, the material depicts or describes in
a patently offensive way sexual conduct specifically
defined by subsection (C) of this section;
(2) the average person applying contemporary
community standards relating to the depiction or
description of sexual conduct would find that the material
taken as a whole appeals to the prurient interest in sex;
(3) to a reasonable person, the material taken as a whole
lacks serious literary, artistic, political, or scientific
value; and
(4) the material as used is not otherwise protected or
privileged under the Constitutions of the United States or
of this State.
S.C. Code Ann. § 16-15-305(B) (2015). Patently offensive is defined as
"obviously and clearly disagreeable, objectionable, repugnant, displeasing,
distasteful, or obnoxious to contemporary standards of decency and propriety
within the community." S.C. Code Ann. § 16-15-305(C)(2) (2015). Prurient
interest is defined as "a shameful or morbid interest in nudity, sex, or excretion and
is reflective of an arousal of lewd or lascivious desires and thoughts." S.C. Code
Ann. § 16-15-305(C)(3) (2015). "Obscenity must be judged with reference to
ordinary adults except that it must be judged with reference to children or other
especially susceptible audiences or clearly defined deviant sexual groups if it
appears from the character of the material or the circumstances of its dissemination
to be especially for or directed to children or such audiences or grounds." S.C.
Code Ann. § 16-15-305(D) (2015).
"On appeal from the denial of a directed verdict, [the appellate court] views the
evidence and all reasonable inferences in the light most favorable to the
State." State v. Butler, 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014). "The
Court's review is limited to considering the existence or nonexistence of evidence,
not its weight." State v. Bennett, 415 S.C. 232, 235, 781 S.E.2d 352, 353 (2016).
The case should be submitted to the jury if the State provides "direct or substantial
circumstantial evidence reasonably tending to prove the defendant's guilt, or from
which the defendant's guilt can be fairly and logically deduced." State v. Reid, 408
S.C. 461, 472, 758 S.E.2d 904, 910 (2014).
Child testified Acker showed her pornography on his computer in his home office,
specifically "videos of people having sex." Viewing this evidence in the light most
favorable to the State, we find the circuit court properly denied Acker's motion for
a directed verdict. See generally Weaverling, 337 S.C. at 465-67, 523 S.E.2d at
789-90 (noting the victim stated the defendant showed him "dirty" magazines, a
pornographic movie, and nude photographs and the defendant was convicted of
disseminating harmful material to a minor).
III. Rule 404, SCRE
Acker next contends the circuit court erred in allowing Grandmother to testify
about a letter he wrote to her in which he admitted to having a fifty-two-year
pornography addiction. On appeal, he asserts the substance of the letter constituted
evidence of a prior bad act not subject to an exception to the inadmissibility
mandated by Rule 404, SCRE.
Grandmother testified she and Acker remained in contact after they divorced in
July 2008 and began to testify as to their correspondence. Acker objected to her
testimony as irrelevant, and the circuit court indicated it would sustain the
objection unless the State could "show some relevance." Grandmother then
testified Acker contacted her by email and through letters or by coming to her
workplace. When asked whether Acker mentioned viewing pornography in his
letters, Grandmother answered, "Yes," and Acker again objected to the testimony
as lacking relevance. The circuit court held a bench conference before allowing
the State to proceed. The State then asked Grandmother if Acker ever mentioned
viewing pornography in his letters, and Acker again objected. The circuit court
overruled the objection. Grandmother responded that Acker "admitted to [her] in
that letter that he had been addicted to pornography for [fifty-two] years."
At the end of Grandmother's testimony and outside the presence of the jury, the
circuit court allowed Acker to state his objections more fully on the record. Acker
first objected based on Rule 401, arguing any pornography addiction was irrelevant
because the time period of his addiction included the majority of his life and the
letter did not describe the medium of the pornography, i.e., whether it involved
magazines, television, computer images, or videotapes. Acker asserted the
testimony left "too much room" for speculation by the jury about the nature and
extent of his addiction and the form it could take. Acker also argued that even if
the testimony were relevant, it was inadmissible under Rule 403 because the
testimony was "too prejudicial" since it covered a large period of time and there
was no testimony as to the form of the addiction. Acker contended the testimony
did not "necessarily go toward the fact that he had a propensity for showing this as
a person in his mid [sixties] to a young child that is five years old." Finally, Acker
argued the testimony was inadmissible under Rule 404 because the testimony
constituted improper character evidence and did not satisfy any exception set forth
in Rule 404. Acker requested a mistrial if the circuit court maintained its
admissibility ruling.
In response, the State argued Acker's admission in the letter included the 2004-
2005 timeframe during which Child claimed Acker showed her pornography and it
was necessary for the State to establish the presence of obscene material to prove
the dissemination charge. The State elaborated, "I think the jury can decide
whether or not he showed it to that child. Him just having the pornography is not
illegal. It's him showing it to the child." Thus, the State continued, his admission
as to the length of his addiction was relevant to show Acker's possession of
pornography during the timeframe he allegedly showed obscene material to Child.
The circuit court found the testimony admissible because it was "clearly relevant"
to the dissemination charge and the danger of unfair prejudice did not substantially
outweigh the probative value of the evidence. The circuit court admitted the
testimony under Rule 401 and Rule 403. The circuit court did not separately
address Rule 404.
The State argues Acker's Rule 404 argument is not preserved for review because
the circuit court did not rule on this ground of his argument. Although the circuit
court did not expressly rule on Acker's Rule 404 argument, the circuit court
addressed it by implication in overruling Acker's objection and admitting the
evidence. The grounds for the objection, however, are more problematic. At trial,
Acker objected to the admission of the statement in the letter to Grandmother as
improper character evidence under Rule 404(a). See Rule 404(a), SCRE
("Evidence of a person's character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion . . . "
other than as set forth in certain exceptions.). Before this court, however, Acker
asserts the testimony was improperly admitted under Rule 404(b) as inadmissible
evidence of other crimes, wrongs, or acts. See Rule 404(b), SCRE ("Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be admissible to
show motive, identity, the existence of a common scheme or plan, the absence of
mistake or accident, or intent."). As the Rule 404(b) argument was not made to the
circuit court, we find it unpreserved for our review. See State v. Adams, 354 S.C.
361, 380, 580 S.E.2d 785, 795 (Ct. App. 2003) ("Arguments not raised to or ruled
upon by the trial court are not preserved for appellate review. Moreover, a
defendant may not argue one ground below and another on appeal." (citation
omitted)).7
7
Because our ruling on preservation resolves this issue, we decline to address the
State's additional argument that Acker's own testimony on this point rendered
Grandmother's testimony merely cumulative and therefore harmless.
For these reasons, we affirm Acker's convictions.
AFFIRMED.
WILLIAMS, A.C.J., and HUFF, A.J., concur.