State v. Miller

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.

James Wayne Miller, Appellant.

Appellate Case No. 2016-000642

Appeal From Kershaw County
Tanya A. Gee, Circuit Court Judge

Unpublished Opinion No. 2018-UP-121
Submitted February 1, 2018 – Filed March 21, 2018

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Megan Harrigan
Jameson, and Solicitor Daniel Edward Johnson, all of
Columbia, for Respondent.

PER CURIAM: James Wayne Miller appeals his convictions for second-degree
criminal sexual conduct and incest, arguing the trial court erred by (1) denying his
motion for a continuance and failing to order a competency examination to
determine if he was competent to stand trial and (2) permitting Dr. Allison Foster
to testify as an expert in child abuse assessment because the subject matter of her
testimony was unreliable and her testimony improperly bolstered the victim's
credibility. We affirm. 1

1. We find the trial court did not abuse its discretion by denying Miller's motion
for a continuance. See State v. Yarborough, 363 S.C. 260, 266, 609 S.E.2d 592,
595 (Ct. App. 2005) ("The granting of a motion for a continuance is within the
sound discretion of the trial court and will not be disturbed absent a clear showing
of an abuse of discretion."); State v. Meggett, 398 S.C. 516, 523, 728 S.E.2d 492,
496 (Ct. App. 2012) ("An abuse of discretion arises from an error of law or a
factual conclusion that is without evidentiary support." (quoting State v. Greer, 391
S.C. 179, 189, 705 S.E.2d 441, 447 (Ct. App. 2010))); Ungar v. Sarafite, 376 U.S.
575, 589 (1964) ("There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied."); Yarborough, 363 S.C. at 266, 609
S.E.2d at 595 ("Reversals of refusals of continuances 'are about as rare as the
proverbial hens teeth.'" (quoting State v. McMillian, 349 S.C. 17, 21, 561 S.E.2d
602, 604 (2002))).
We also find the trial court did not abuse its discretion by failing to order a
competency examination of Miller. See S.C. Code Ann. § 44-23-410(A) (2017)
(providing a court shall order a competency evaluation whenever it "has reason to
believe that a person on trial before [it], charged with the commission of a criminal
offense or civil contempt, is not fit to stand trial because the person lacks the
capacity to understand the proceedings against him or to assist in his own defense
as a result of a lack of mental capacity"); State v. Locklair, 341 S.C. 352, 364, 535
S.E.2d 420, 426 (2000) ("Despite the mandatory language of the statute requiring a
[court] to order a competency examination if there is reason to believe that a
person charged with a criminal offense is not fit to stand trial, ordering a
competency examination is within the discretion of the trial [court] and a refusal to
grant an examination will not be disturbed on appeal absent a clear showing of an
abuse of discretion."); State v. Burgess, 356 S.C. 572, 575, 590 S.E.2d 42, 44 (Ct.
App. 2003) ("Factors to be considered in determining whether further inquiry into
a defendant's fitness to stand trial is warranted include evidence of his or her

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
irrational behavior, his or her demeanor at trial, and any prior medical opinion on
his or her competence to stand trial.").

2. We find the trial court did not abuse its discretion by allowing Dr. Foster to
testify as an expert witness in child abuse assessment. See 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. Strokes, 381 S.C. 390, 398, 673 S.E.2d 434, 438 (2009) ("An abuse of
discretion occurs when the conclusions of the trial court either lack evidentiary
support or are controlled by an error of law."). First, based on Dr. Foster's
testimony regarding the field of child abuse assessment, her work in the field, and
the sources of her testimony, we find the subject matter of Dr. Foster's testimony
was reliable. See Watson v. Ford Motor Co., 389 S.C. 434, 446, 699 S.E.2d 169,
175 (2010) (stating before allowing a jury to hear expert testimony, the trial court
must (1) "find that the subject matter is beyond the ordinary knowledge of the jury,
thus requiring an expert to explain the matter to the jury," (2) "find that the
proffered expert has indeed acquired the requisite knowledge and skill to qualify as
an expert in the particular subject matter," and (3) "evaluate the substance of the
testimony and determine whether it is reliable"); State v. Council, 335 S.C. 1, 19,
515 S.E.2d 508, 517 (1999) (providing to determine if scientific expert testimony
is reliable, the trial court must consider "(1) the publications and peer review of the
technique, (2) prior application of the method to the type of evidence involved in
the case, (3) the quality control procedures used to ensure reliability, and (4) the
consistency of the method with recognized scientific laws and procedures"); White,
382 S.C. at 274, 676 S.E.2d at 688 (stating in cases with nonscientific expert
testimony, the factors applying to scientific testimony cannot be readily applied,
and there is no formulaic approach to determine reliability); State v. Jones, 417
S.C. 319, 331, 790 S.E.2d 17, 23 (Ct. App. 2016), cert. granted, S.C. Sup. Ct.
Order dated Aug. 22, 2017, ("[T]he testimony of child abuse assessment experts is
nonscientific.").

Second, we find Dr. Foster's testimony did not improperly bolster the victim's
credibility because she did not interview the victim prior to trial and did not
comment on the victim's credibility during her testimony. See 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."); id. at
475, 523 S.E. 2d 794 ("Such testimony is relevant and helpful in explaining to the
jury the typical behavior patterns of adolescent victims of sexual assault."); id. ("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."); State v.
Brown, 411 S.C. 332, 342, 768 S.E.2d 246, 251 (Ct. App. 2015) ("The general
behavioral characteristics of child sex abuse victims are, therefore, 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."); State v. Kromah, 401
S.C. 340, 358-59, 737 S.E.2d 490, 500 (2013) ("[I]t is improper for a witness to
testify as to his or her opinion about the credibility of a child victim in a sexual
abuse matter."); State v. Barrett, 416 S.C. 124, 130, 785 S.E.2d 387, 390 (Ct. App.
2016) ("[T]he practice of qualifying the forensic interviewer who conducted the
alleged victim's forensic interview as an expert in child abuse assessment" has not
been "prohibit[ed] outright."); State v. Anderson, 413 S.C. 212, 218, 776 S.E.2d 76,
79 (2015) ("The better practice, however, is not to have the individual who
examined the alleged victim testify, but rather to call an independent expert.").

AFFIRMED.

LOCKEMY, C.J., and WILLIAMS and KONDUROS, JJ., concur.