State v. McCann

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Bobbie Albert McCann, Appellant.

Appellate Case No. 2012-212555

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

Unpublished Opinion No. 2014-UP-355
Heard September 11, 2014 – Filed October 8, 2014

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Deputy Attorney General David A. Spencer, both of
Columbia, for Respondent.

PER CURIAM: Bobbie Albert McCann appeals his convictions for two counts of
criminal sexual conduct with a minor in the first degree and one count of
committing a lewd act upon a child under the age of sixteen years. On appeal, he
argues the circuit court erred in overruling his objection to expert testimony under
Rules 702 and 703 of the South Carolina Rules of Evidence, as the expert admitted
she had limited knowledge of the case and the unduly prejudicial nature of her
testimony outweighed any alleged probative value. We affirm pursuant to Rule
220(b), SCACR, and the following authorities: Rule 702, SCRE ("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 703, SCRE ("The facts or data in the particular
case upon which an expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence."); State v.
White, 382 S.C. 265, 269, 676 S.E.2d 684, 686 (2009) ("A trial court's decision to
admit or exclude expert testimony will not be reversed absent a prejudicial abuse
of discretion."); State v. White, 361 S.C. 407, 414, 605 S.E.2d 540, 544 (2004)
("Expert testimony on rape trauma may be more crucial in situations where
children are victims."); id. at 414-15, 605 S.E.2d at 544 ("The inexperience and
impressionability of children often render them unable to effectively articulate the
events giving rise to criminal sexual behavior."); State v. Weaverling, 337 S.C.
460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999) ("[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." (alteration in original) (quoting State v. Schumpert, 312 S.C.
502, 506, 435 S.E.2d 859, 862 (1993)) (internal quotation marks omitted)); id. at
475, 523 S.E.2d at 794 ("There is no requirement the sexual assault victim be
personally interviewed or examined by the expert before the expert can give
behavioral evidence testimony."); id. at 475, 523 S.E.2d at 794-95 (finding an
expert's behavioral evidence testimony relevant and properly admitted in a child
sexual abuse case despite the expert's limited knowledge of the case and failure to
interview or examine the victim).1

1
As to McCann's contention that the expert's testimony was "junk science": State
v. Benton, 338 S.C. 151, 157, 526 S.E.2d 228, 231 (2000) (noting that an issue
conceded in the trial court cannot be argued on appeal); State v. Patterson, 324
S.C. 5, 19, 482 S.E.2d 760, 767 (1997) ("Appellant is limited to the grounds raised
at trial.").

As to McCann's argument concerning the expert's statements that "about seventy
percent [of adult survivors of childhood sexual abuse] have never told anyone" and
AFFIRMED.

FEW, C.J., and THOMAS and LOCKEMY, JJ., concur.

"ninety percent of cases of child sexual abuse, the person who is committing the
acts is somebody who's known and loved and trusted by the child": State v.
Johnson, 363 S.C. 53, 58-59, 609 S.E.2d 520, 523 (2005) ("To preserve an issue
for review there must be a contemporaneous objection that is ruled upon by the
trial court. The objection should be addressed to the trial court in a sufficiently
specific manner that brings attention to the exact error. If a party fails to properly
object, the party is procedurally barred from raising the issue on appeal." (internal
citations omitted)).