State v. Shannon E. Garland ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Shannon Earl Garland, Appellant.
Appellate Case No. 2018-002085
Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge
Opinion No. 5920
Heard February 8, 2022 – Filed July 6, 2022
AFFIRMED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia, and Solicitor William Walter Wilkins, III, of
Greenville, all for Respondent.
MCDONALD, J.: Shannon Garland appeals his convictions for exposure of
private parts in a lewd and lascivious manner, criminal sexual conduct (CSC) with
a minor in the first degree, and CSC with a minor in the third degree, arguing the
circuit court erred in allowing the minor's (Minor) therapist to testify as an expert
in child sex abuse dynamics. We affirm.
Facts and Procedural History
Minor's mother (Mother) began dating Garland when Minor was in the second
grade. A year and a half later, Mother, Minor, and Garland moved into a mobile
home on Minor's maternal grandmother's (Grandmother) property. After Mother
and Garland failed to pay rent or utilities for a year, Grandmother asked them to
leave. At trial, Minor testified Garland began sexually abusing her when the
family lived in the trailer on Grandmother's property.
Mother, Garland, and Minor then moved into a home on a friend's property, but the
friend asked them to leave after they failed to pay rent. The friend's neighbor
allowed them to move in with her, and the three remained with the neighbor for
five or six months. The neighbor asked them to leave after Garland and Mother
got into a fight and left Minor at the neighbor's house. Once the family moved out,
the neighbor called the South Carolina Department of Social Services (DSS)
because she had concerns that at nine years old, Minor "knew a whole lot of things
that she shouldn't have known. Drugs, pills, sex."
Eventually, Mother moved into a motel with Garland, and Minor moved in with
Grandmother. On Mother's Day in 2016, Grandmother took Minor to visit Mother
at the motel. While Minor was visiting, Mother left her alone at the motel with
Garland, who began watching pornography on his phone while in the room with
Minor. Garland asked Minor to sit on his lap, but Minor told him no. Garland
then came towards Minor and tried to pull her pants off, but Minor pushed him
away with her feet.
When Grandmother picked up Minor from the motel, Minor was quiet, which was
unusual following her visits with Mother. The following week, Minor's school
guidance counselor informed Grandmother that she had alerted DSS because
Minor disclosed sexual abuse. Later that day, Minor told Grandmother about
Garland's behavior at the motel. Grandmother reported Minor's disclosure to
Mother, but Mother did not believe the disclosure to be true.
DSS referred the case to an investigator, who sent Minor to the Julie Valentine
Center for a forensic interview. In the interview, Minor disclosed that Garland had
sexually abused her at the motel on Mother's Day.
In January 2017, Minor disclosed additional allegations of abuse to Grandmother.
These disclosures involved Garland's abuse at the trailer on Grandmother's
property and at the home on the friend's property. Grandmother informed Minor's
therapist, Erica Van Wagner, who notified law enforcement of the additional
allegations, and Minor participated in another forensic interview.
Garland testified at his trial and denied all allegations. Ultimately, the jury found
Garland guilty of first-degree CSC with a minor, third-degree CSC with a minor,
and exposure of private parts in a lewd and lascivious manner. The circuit court
sentenced Garland concurrently to twenty-eight years' imprisonment for
first-degree CSC with a minor, fifteen years for third-degree CSC with a minor,
and six months for exposure of private parts in a lewd and lascivious manner.
Standard of Review
"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)). "The trial court's
decision to admit expert testimony will not be reversed on appeal absent an abuse
of discretion." State v. Makins, 433 S.C. 494, 500, 860 S.E.2d 666, 670 (2021)
(quoting State v. Price, 368 S.C. 494, 498, 629 S.E.2d 363, 365 (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
Garland argues the circuit court erred in allowing Van Wagner, who was Minor's
therapist, to testify as an expert on child sex abuse dynamics and the treatment of
children for trauma and sex abuse. Garland further asserts the State failed to
demonstrate Van Wagner's testimony was reliable, and that her testimony served to
improperly vouch for Minor's credibility. We disagree.
"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. "Under White, two threshold
determinations must be made. First, the qualifications of the expert must be
sufficient, and second, there must be a determination that the expert's testimony
will be reliable." Chavis, 412 S.C. at 106–07, 771 S.E.2d at 339. There is no
formulaic approach applicable to the evaluation of nonscientific expert evidence,
as the "foundational reliability requirement for expert testimony does not lend itself
to a one-size-fits-all approach." White, 382 S.C. at 274, 676 S.E.2d at 688.
Garland objected to qualifying Van Wagner as an expert and requested a proffer of
her proposed testimony so the circuit court could consider both Van Wagner's
qualifications and the reliability of her testimony. The State proffered Van
Wagner's testimony that she was a mental health therapist with Greenville Mental
Health Center, where she supervised the center's DSS program. Van Wagner has a
Bachelor's Degree and Master's Degree in social work, is a licensed independent
social worker with a clinical practice focus, has been employed by the Department
of Mental Health for eighteen years, and has treated over 4,000 patients during the
course of her career. Van Wagner participates in weekly meetings with
psychiatrists and other clinicians to collaborate on complicated cases. She uses
trauma focused cognitive behavioral therapy in treating children who have been
sexually abused.
The State moved to qualify Van Wagner as an expert "in the treatment of children
with trauma, including but not limited to sex abuse and then child sex abuse
dynamics," explaining Van Wagner would briefly testify that she treated Minor but
would not testify about Minor's symptoms or diagnosis. The State continued, "She
is merely going to say that she talked to Minor [and] that she counseled her. She
was seeing her for sexual abuse disclosures, she had a treatment plan for her, and
then, the time and place of her disclosure." The circuit court responded:
Okay. Is it relevant to your case to introduce all of those
additional—that additional information regarding the
treatment plan and all of those materials? What I want to
do is distance her as much as possible from this actual
case if she's going to talk about the phenomenon in
general. Because what we're trying to do, and you know,
we're trying to avoid as much as possible any situation
where there is appearance of vouching.
The State admitted discussion of the treatment plan was not necessary but asserted
Van Wagner was important to establish the time and place of Minor's disclosure to
the therapist.
Garland opposed the State's motion, arguing the State's attempt to present Minor's
treating therapist as both its abuse disclosure and abuse dynamics witness would
violate Kromah1 because testimony by such a dual witness would implicitly vouch
for Minor's credibility. Garland asserted Van Wagner could not be a proper blind
expert because she had a "sincere interest" in Minor's well-being as her therapist.
Garland further argued Van Wagner's reliability was suspect because she elicited
information during her counseling sessions that would be used at trial.
The circuit court expressed its preference that the State present Van Wagner as
either a blind expert or a fact witness—not as a dual witness. The State responded
it would rather present Van Wagner as a blind expert but noted other witnesses had
already testified that Van Wagner treated Minor. The circuit court explained it was
limiting Van Wagner's testimony to address Garland's concern regarding the risk of
implicit vouching.
Prior to Van Wagner's testimony before the jury, Garland renewed his objection,
which the circuit court overruled. Van Wagner testified about grooming, types of
disclosure, delayed disclosure, trauma, symptoms of trauma, and coping
mechanisms for people who have experienced trauma. She did not testify about
Minor specifically or address her treatment.
"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. But see Makins, 433 S.C. at 505, 860 S.E.2d at 672 (reiterating the bolstering
risks presented by dual experts but finding no reversible error in admitting expert
testimony addressing both the characteristics of abused children and the child
victim's treatment).
1
401 S.C. at 358-360, 737 S.E.2d at 499–500 (reiterating that it is improper for an
expert to testify as to the credibility of a child witness in a sexual abuse case and
describing the kinds of statements a witness should avoid at trial).
In Makins, the supreme court found the testimony of Kristin Rich, the minor
victim's therapist, did not improperly bolster the victim's testimony. Id. The court
noted:
Rich never testified she advised Minor about the
importance of being truthful, never testified directly as to
Minor's truthfulness, and never opined Minor's behavior
indicated truthfulness. While Rich was allowed to
confirm she treated Minor, she was not allowed to
explain why she was treating Minor, detail her treatment
of Minor, or testify as to her diagnosis of Minor. Rich
only addressed the circumstances of Minor's disclosure
of abuse and the drawing Minor produced in therapy.
Id. at 503, 860 S.E.2d at 671.
Pursuant to the supreme court's analysis in Makins, we find the circuit court did not
abuse its discretion in allowing Van Wagner to testify as an expert in child trauma
and sexual abuse dynamics. Garland argues the State failed to satisfy White's
reliability requirement because Van Wagner was Minor's treating therapist.
However, for this court to deem Van Wagner's testimony unreliable on the sole
basis that Van Wagner treated Minor would implicate the bright line rule rejected
in Makins—prohibiting a treating therapist from ever testifying as an abuse
dynamics expert in child sex abuse cases. Here, the circuit court limited the State
to presenting Van Wagner as a general abuse dynamics and trauma expert and did
not permit her to discuss "her personal counseling and provision of services to this
specific victim in this case." Thus, the admission of Van Wagner's testimony
presented a lesser danger of implicit vouching than that of therapist Rich in
Makins.
This case is distinguishable from Chavis, in which the supreme court addressed the
reliability of testimony by a forensic interviewer offered as an expert in the field of
child abuse assessments. There, the interviewer also testified as to a disclosure of
defendant's abuse by the victim's stepsister. 412 S.C. at 106–07, 771 S.E.2d at
338–39. Van Wagner was not qualified as an expert in forensic interviewing;
rather, she testified as an expert in sex abuse dynamics generally and explained
concepts related to child sexual abuse and trauma. She did not address Minor's
disclosures. The reliability concerns in Chavis were based on the interviewer's
problematic application of the RATAC 2 protocol in the interview with the victim's
stepsister, whereas here, Garland argued Van Wagner was not reliable as the abuse
dynamics expert solely because she was Minor's treating therapist.
Moreover, we find Van Wagner did not impermissibly vouch for Minor's
credibility in her testimony. In addressing Garland's objections, the circuit court
carefully analyzed the potential vouching issues and minimized the risk of
vouching by prohibiting Van Wagner from testifying she treated Minor; the State
presented evidence of the times and places of the abuse through other fact
witnesses. The only evidence presented at trial connecting Van Wagner to Minor
were comments from other witnesses noting Van Wagner was Minor's therapist,
and Garland did not object in these instances. Without more, Garland's argument
that these references by other witnesses transformed Van Wagner's general
dynamics testimony into vouching or improper bolstering does not convince us that
the circuit court erred in admitting Van Wagner's testimony. See Makins, 433 S.C.
at 503, 860 S.E.2d E.2d at 671 ("To suggest Rich's simple affirmation that she
provided therapy to Minor can singularly constitute improper bolstering is a bridge
too far. In this specific context, Rich's 'yes' alone, without more, did not convey to
the jury that Rich believed Minor.").
AFFIRMED.
THOMAS and HEWITT, JJ., concur.
2
RATAC is an acronym for Rapport, Anatomy, Touch, Abuse Scenario, and
Closure.