State v. McCall

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.

Robert Duncan
McCall, Appellant.

Appeal From Greenville County

 C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2007-UP-453

Submitted October 1, 2007 – Filed October
10, 2007

AFFIRMED

J. Falkner  Wilkes, of Greenville; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney John
W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant
Attorney General David A. Spencer, of Columbia; Robert M. Ariail, of Greenville;
for Respondent.

PER CURIAM: 
Robert Duncan McCall appeals his convictions for the offenses of criminal
sexual conduct with a minor in the first degree and committing a lewd act upon
a minor.  At issue in this appeal is whether the trial judge erred in denying
McCall’s motion for an independent psychological examination of the victim.  We
affirm.[1]

FACTS

A
grand jury in Greenville County indicted McCall for the offenses of criminal
sexual conduct with a minor in the first degree and committing a lewd act on a
minor.  The victim was McCall’s niece by marriage.

On
October 24, 2003, the trial court, Judge Edward W. Miller presiding, held a
hearing on McCall’s motion to have the victim undergo an independent
psychological or psychiatric evaluation.  In support of the motion, counsel for
McCall noted the following:  (1) the victim was a special needs student; (2)
the victim went through two rounds of group therapy at a sexual trauma center and
was told she could not do a third round; (3) the victim’s mother once stated
the victim wanted to recant her accusations against McCall; (4) the defense was
willing to pay for the evaluation and had identified three psychiatrists who
could perform it; (5) the charges against McCall were based in part on
incidents allegedly occurring as long as six years before the victim came
forward; (7) the indictments were based primarily on statements by the victim
and her mother; and (8) there were possible “fantasy issues” between the victim
and McCall.  Counsel further submitted an affidavit with hearsay evidence that
the victim engaged in masturbation and once allowed a cousin to shave off her
pubic hair.

In
response, the solicitor objected to the motion, noting the victim’s handicaps
were orthopedic rather than emotional and she was a mainstream student who had
achieved good grades and did not have behavior
problems.  The solicitor further asserted the therapy the victim received was
necessitated by the alleged sexual abuse on which the indictments were based and
problems associated with her physical disabilities rather than on any emotional
or psychological abnormalities.  Similarly, the solicitor averred the excessive
masturbation could be “associated with a history of sexual abuse.” 
Finally, the solicitor dismissed the shaving incident as a “childhood antic”
that was not indicative of any sexually deviant behavior on the victim’s part.

By
written order dated October 24, 2003, Judge Miller denied McCall’s motion for
an independent evaluation of the victim.  In the same order, however, he
ordered the State “to turn over any and all records of psychological evaluation
of the Victim as soon as possible” and granted McCall “leave to revisit this
issue if review of these documents shows a compelling need for psychological
evaluation of the Victim.”

Following a trial
by jury before Judge C. Victor Pyle on January 12-15, 2004, McCall was
convicted of both offenses and received concurrent sentences of twenty years on
the charge of first-degree criminal sexual conduct with a minor and fifteen
years on the charge of lewd act on a minor. This appeal followed.

LAW/ANALYSIS

Relying on In
re Michael H., 360 S.C. 540, 602 S.E.2d 729 (2004), both at trial and on
appeal, McCall asserts his motion to have the victim undergo an independent
evaluation should have been granted.  In addition to the arguments he raised
during the pre-trial hearing, he also argues on appeal that, during the trial,
the victim’s allegations changed dramatically from what she related during the
investigation.  Finally, McCall notes that, contrary to Judge Miller’s
instructions, no treatment records for the victim had been made available to
him.  We hold McCall failed to preserve his arguments for appellate review.

A trial judge has
the discretion “to order a psychological examination in cases in which the
child is the complaining victim” upon a showing of “compelling need.”  In re
Michael H., 360 S.C. at 551-52, 602 S.E.2d at 735.  The trial judge,
however, must have the opportunity to determine whether such an examination is
warranted in a particular case.  Id. at 546, 602 S.E.2d at 732. 

Like McCall, the
defendant in Michael H. unsuccessfully moved before the final hearing took
place to have the complaining witness submit to a psychological evaluation.  Id. at 544, 602 S.E.2d at 731.  Unlike McCall, however, the defendant in Michael
H. moved again to have the complainant submit to a psychological evaluation
after a clinical psychologist treating the complainant testified at trial and
defense counsel discovered he had not received notes concerning reports by the
complainant that “he [the complainant] had been hearing voices in his head for
some time.”  Id. at 544-45, 602 S.E.2d at 731.

In contrast, during
the jury trial in the present case, defense counsel made only a passing
reference to his prior motion to have the victim evaluated, stating at the
beginning of the hearing, “And just for the record I would like to note that I
still objected to that ruling just to protect myself.”  At no time did defense
counsel expressly argue that the inconsistencies between the victim’s trial
testimony and her statements during the investigation warranted an order for
her to submit to a psychological evaluation, and we see no way to construe
counsel’s statements to encompass such an assertion.  Similarly, the record
does not show any attempt by the defense to compel the State to release the
victim’s treatment records.  See State v. Fletcher, 363 S.C. 221,
258, 609 S.E.2d 572, 591 (Ct. App. 2005), cert. granted (Oct. 19, 2006) (“A general objection
which does not specify the particular ground on which the objection is based is
insufficient to preserve the issue for review.”).  Because the
trial judge never had the opportunity to consider, much less rule on, whether
the information elicited during the trial would constitute a compelling reason
to order a psychological evaluation of the victim or whether McCall was
unjustifiably deprived of access to the victim’s treatment records, we cannot
address these issues on appeal. 

AFFIRMED.

ANDERSON and
THOMAS, JJ., and GOOLSBY, A.J., concur.

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