State v. Gray

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS

PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Paul A. Gray, Appellant.

Appeal From Charleston County

John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2004-UP-552

Submitted October 1, 2004 – Filed November
1, 2004

AFFIRMED

Acting Chief Attorney Joseph L. Savitz, III, of the South Carolina
Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
and Solicitor Ralph E. Hoisington, of Charleston; for Respondent.

PER CURIAM:  Paul A. Gray was convicted of first-degree criminal sexual
conduct (CSC) with a minor and sentenced to eighteen years imprisonment.  Gray
was also convicted of performing a lewd act on a minor and sentenced to eight
years imprisonment, suspended upon the service of five years probation, to be
served consecutively with the other sentence.  He was acquitted of another CSC
charge.  He appeals, arguing the trial court erred in admitting expert testimony
concerning the victim’s late reporting of the incident.  We affirm.

FACTS

In 2001, the then eight-year-old
victim was living with her grandmother in McClellanville, South Carolina.  Loretta
Gray, Gray’s mother, would baby-sit the victim everyday from the time the victim
got home from school until her grandmother came home from work.  The victim
would often come to Gray’s house to drop off her books, walk to her grandmother’s
house to get some food or a change of clothing, and return to Gray’s house until
her grandmother returned from work.  In April 2001, the victim went to stay
with her mother in North Charleston for spring break, and she told her that
Gray molested her.  Gray was indicted by the grand jury on two counts of CSC
with a minor and one count of performing a lewd act upon a minor. 

The victim testified at trial regarding several incidents occurring sometime
between January and April 2001.  According to the victim, Gray would often grab
her and either lie on top of her, put his hands down her underwear, or, on two
occasions, place his penis in her mouth in an attempt to force her to perform
oral sex on him.  The incidents occurred either at Gray’s house or at the victim’s
grandmother’s house.  The victim also testified that she defended herself from
Gray each time he demanded oral sex by biting him and by wielding a knife on
one occasion when he placed his hands down her pants.  The victim stated she
was scared to tell anyone about the incidents, but she finally felt safe enough
to tell her mother because she was not near Gray at the time. 

The State sought to present
the testimony of counselor Allison Rogers regarding how a delay in reporting
abuse is common in child abuse cases.  Gray moved to exclude her testimony,
and the trial court allowed an in camera examination of Rogers. 
Rogers testified in camera that “delayed disclosure,” which is the time
period between when abuse takes place and when the victim reports the abuse,
is common in child abuse cases.  Rogers stated children often delay disclosing
abuse because they are embarrassed or they are afraid of the repercussions. 
Rogers also stated that children sometimes disclose with “tentative disclosure”
in which they initially deny the abuse, tentatively disclose the abuse to test
adults’ reactions, and then fully disclose the abuse when they feel comfortable
that they are safe and will be believed.  Gray objected to the admission of
the behavioral testimony as more prejudicial than probative.  The trial court
denied the motion, finding the testimony was relevant and any prejudicial effect
was outweighed by the probative value.  

After a short break, Rogers
took the stand and repeated her testimony regarding delayed reporting in front
of the jury.  Gray did not object to her qualification as an expert witness. 
Gray was acquitted of one count of CSC, convicted of one count of first-degree
CSC with a minor, and convicted of performing a lewd act on a minor.  He appeals.

STANDARD OF REVIEW

“The question of whether to admit or exclude testimony of an expert witness
is within the discretion of the trial court.”  State v. Weaverling, 337
S.C. 460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999).  The trial court’s ruling
on the admission of expert testimony will not be excluded absent an abuse of
discretion amounting to an error of law.  Id. 

LAW/ANALYSIS

Gray argues the trial court erred in admitting the testimony regarding delayed
reporting since the probative value was substantially outweighed by the prejudicial
effect.  We disagree.

Initially, the State argues this issue is not preserved for review.  Relying
on State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993), the State
argues that Gray failed to renew his objection when Rogers testified in front
of the jury, and, thus, he never obtained a final ruling on the matter.  Generally,
a pre-trial ruling on the admission of evidence is not considered final and
a party must renew his objection at the time the evidence is admitted.  See
Schumpert, 312 S.C. at 507, 435 S.E.2d at 862 (“Unless an objection is
made at the time the evidence is offered and a final ruling made, the issue
is not preserved for review.”).  However, where the motion is ruled on immediately
prior to the introduction of the evidence in question and no other testimony
is presented to provide a basis for the trial court to change its ruling, the
ruling is final and no further objection is necessary.  State v. Tufts,
355 S.C. 493, 497, 585 S.E.2d 523, 525 (Ct. App. 2003), cert. denied
(June 24, 2004); Samples v. Mitchell, 329 S.C. 105, 109, 495 S.E.2d 213,
215 (Ct. App. 1997); State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d
409, 410-11 (Ct. App. 1995).  In this case, the parties argued the motion during
the trial, Rogers’ testimony was taken in camera, and the trial court
ruled the testimony was admissible.  Under these facts, it is clear the trial
court made a final ruling on the matter and it is preserved for review.

As to the merits, Gray argues the behavioral evidence presented was prejudicial
because “the scientific community believes late reporting actually corroborates
a belatedly told story of sexual molestation.”  In Schumpert, our supreme
court held that “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.”  Schumpert,
312 S.C. at 506, 435 S.E.2d at 862.  Similarly, this court held that expert
testimony regarding behavioral characteristics of sexual assault victims was
admissible: “Such testimony is relevant and helpful in explaining to the jury
the typical behavior patterns of adolescent victims of sexual assault. . . .
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.”  Weaverling, 337 S.C. at 475, 523 S.E.2d at 794 (citation
omitted). 

Rogers’ testimony in the present case explained to the jury that child victims
of sexual assault often delay reporting abuse until they are assured that adults
will take them seriously and they will be protected.  The victim also testified
that she did not reveal the abuse to her mother until she was away from Gray. 
Rogers’ testimony explained the victim’s reaction, and it was thus more probative
than prejudicial in this instance.  We find the trial court did not abuse its
discretion.

CONCLUSION

Based on the foregoing, Gray’s convictions and sentences are

AFFIRMED. [1]  

STILWELL, BEATTY, and SHORT, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.