State v. McAteer

THE
STATE OF SOUTH CAROLINA

In
The Court of Appeals

The State,       
Respondent,

v.

Kenneth Dale
McAteer,        Appellant.

Appeal From York County

John C. Hayes, III, Circuit
Court Judge

Unpublished Opinion No.  2003-UP-261

Submitted January 29, 2003 - Filed April
9, 2003

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, 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
Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport,
all of Columbia; and Solicitor Thomas E. Pope, of York; for Respondent.

PER
CURIAM:  Kenneth Dale McAteer was convicted of three
counts of first degree criminal sexual conduct (CSC) with a minor, a violation
of S.C. Code Ann. § 16-3-655 (2003).  He appeals, arguing the trial court erred
in excluding evidence of a purported prior sexual assault on the victim.  We
affirm. [1]

FACTS

The charges in this case arise out of allegations that
McAteer was responsible for three acts of sexual assault involving the nine-year-old
female victim in January 2000, including digital penetration, cunnilingus, and
fellatio. 

McAteer and his common-law wife were best friends
with the victim’s parents, and their children considered themselves to be “cousins.” 
The victim’s father had known McAteer for thirteen years, and the children of
the two couples often played together and spent the night in each other’s homes. 
The victim was particularly close to McAteer.  He frequently played with her,
tickling her and wrestling with her. 

In January 2000, the victim stayed overnight with
McAteer’s two daughters in their bedroom.  According to the victim, all three
girls were sleeping on the floor when McAteer came in around midnight and asked
if she wanted to watch a movie.  The other two girls were asleep, so the victim
went into the living room and sat on McAteer’s lap.  While they watched television,
McAteer asked her if she knew how to French kiss.  The victim said no and when
he asked her further questions, she said she was not going to tell him anything. 
The victim drifted off to sleep while sitting on McAteer’s lap and when she
woke up she “felt someone kissing me on my face and something was like poking
me on my leg [ ].”  The victim stated she was very sleepy so she went back to
the bedroom and fell asleep.  The next time she awoke, she felt McAteer touching
her chest and unzipping her pants.  McAteer then digitally penetrated her and
committed cunnilingus on her, and required the victim to perform fellatio on
him.  The victim stated that when he finished, McAteer told her, “Now you know
everything.”   

The victim’s father noticed that his daughter,
who had previously been very close to McAteer, became more withdrawn and her
attitude changed about staying over after that particular visit.  The victim
initially told her parents only that McAteer had asked her about French kissing. 
The victim decided not to say anything further after her mother started crying
when she told her about McAteer’s question. 

The victim’s father stated that when he questioned
McAteer about his daughter’s statement, McAteer told him that he had overheard
the girls talking about French kissing, so he had gone into their bedroom to
reprimand them for it.  McAteer told him he had asked all the children if they
wanted to watch a movie, but only the victim had gotten up.   

The families continued some activities together,
but thereafter, in February or March of 2001, the victim revealed the details
of the sexual abuse to a school counselor, who contacted the victim’s parents
and the police.  McAteer was indicted on three charges of first degree CSC with
a minor. 

At trial, the pediatrician who examined the victim
in March 2001, Dr. Dwight Reynolds, testified that the victim’s hymen was asymmetrical,
narrower on the right side than the left, which was “highly unusual.”  He stated
that, while this was “not complete evidence of penetration,” it was consistent
with penetration and he knew of no natural cause that would result in this variation. 
During cross-examination, Reynolds stated that, while he could not rule out
that the victim was born this way, it would be “a long shot.”  Assuming the
narrowing was caused by penetration, Reynolds stated it “may have been weeks,
months, or even years before.”  When asked whether it “could have occurred as
early as when the child was three years old,” Reynolds stated the child was
ten when he saw her and “seven years seems outside the range of what [he] would
expect.”  He stated that had the incident occurred even four years before, it
would be “a real stretch” that such an injury would be detected. 

McAteer denied the allegations of assault.  A jury
found him guilty of three counts of first degree CSC with a minor.  The trial
court sentenced him to concurrent terms of fifteen years in prison on each count. 

LAW/ANALYSIS

At trial, McAteer
sought to introduce testimony regarding an alleged incident of misconduct previously
committed against the victim when she was approximately three years old.  On
appeal, he contends the trial court abused its discretion in refusing to allow
the testimony.  We disagree.

The victim’s father testified
in camera that when his daughter was three years old, some young
boys tried to pull her panties down.  He stated he reported the incident and
his daughter went through psychological testing with dolls to determine what
had happened to her.  They concluded, however, “that there was no foul play”
and it was not necessary for her to have a medical examination. 

During later in camera
testimony, the victim’s mother testified that when her daughter was between
the ages of three and five, she told her that some young boys had tried to pull
her panties down, but she initially did not believe her as they were visiting
with family members.  The child went back out to play and less than an hour
later she returned and repeated her accusation.  At that point, they went to
a doctor, who sent a social worker to their house to interview the child using
dolls.  The social worker reported to the doctor that the boys had only tried
to pull the child’s panties down, so the doctor decided no physical examination
was necessary.  The mother stated her child was not hurt and she never alleged
anything else had happened to her.  The mother stated she did not take the child
to the emergency room and did not remember seeing someone named Chastity Furtick
at the hospital. 

Defense counsel proffered the testimony of Chastity
Furtick, who stated that in 1993 or 1994, when the victim was three or four,
she was at the emergency room at Piedmont Medical Center when she saw the victim
and her mother come in.  She stated the victim’s mother came in crying and saying
that the child “had gotten messed with and [she] was trying to check her in”
but the nurse told her the child was too young to be examined with their equipment
and needed to see a pediatrician.  Furtick testified that the mother came over
and told her the child had been “raped.” 

Defense counsel sought to introduce Furtick’s testimony
to show that the victim’s hymen could have been penetrated by the previous incident
and was not caused by penetration by McAteer.  The trial court excluded the
testimony on the basis there was “no evidence to support any allegation other
than the alleged one emotional statement by [the mother] to this witness [Furtick]
that any previous molestation had occurred with the minor and the only evidence
is . . . that the child complained about other boys wanting to pull down her
panties and that a follow-up was made of that and therefore I’m not going to
allow the evidence.” 

“The admission or exclusion of evidence is left
to the sound discretion of the trial judge, whose decision will not be reversed
on appeal absent an abuse of discretion.”  State v. Saltz, 346 S.C. 114,
121, 551 S.E.2d 240, 244 (2001).  “While defendants are entitled to a fair opportunity
to present a defense, that right does not encompass the right to present any
evidence, regardless of its admissibility under the rules of evidence.”  State
v. Hamilton, 344 S.C. 344, 359, 543 S.E.2d 586, 594 (Ct. App. 2001).  “Although
relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury . . . .”  Rule 403, SCRE.

We cannot say as a matter of law that the trial
court abused its discretion in this instance.  As noted by the court, the in
camera testimony indicated only that, when the child was three years
old, some young boys had tried to pull the child’s panties down while she was
outside playing.  She was taken to a doctor but it was determined that no physical
examination was necessary as no sexual abuse was noted.  Defense counsel’s proffered
testimony that there was penetration based on the mother’s alleged statement,
made over seven years prior, that the child had been “raped” does not, in and
of itself, support a claim of a prior sexual battery.  This is particularly
true in light of the fact that the pediatrician was specifically asked whether
the narrowing of the child’s hymen could have occurred when she was three years
old and he stated this was “outside the range of what [he] would expect.”  Since
there was no physical examination or further inquiry, under these circumstances,
it would be speculative for the jury to determine penetration had previously
occurred and the testimony could tend to confuse or mislead the jury.  Accordingly,
we conclude the trial court properly excluded the proffered testimony.

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.

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