In the Matter of the Care and Treatment of Whitcraft

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

In the Matter of the Care and Treatment of Kenneth R.
Whitcraft,        Appellant.

Appeal From Beaufort County

R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-018

Submitted October 15, 2003 – Filed January 15, 2004

AFFIRMED

John B. Williams, of Moncks Corner, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W.
McIntosh, Deputy Attorney General Treva Ashworth, Assistant Attorney General
Deborah R. J. Shupe, Assistant Attorney General R. Westmoreland Clarkson, all
of Columbia, for Respondent.

PER CURIAM:   A jury found that Appellant was a sexually violent predator.
We affirm.

FACTS

Kenneth Whitcraft pled guilty to criminal sexual
conduct with a minor (second degree) in 1990. Whitcraft had been convicted on
similar charges in Pennsylvania as early as 1985. He was given a 16-year sentence.
In March of 2001, as Whitcraft was approaching his parole date, the state petitioned
Judge Dennis to declare Whitcraft a sexually violent predator. At trial, the
state’s expert witness testified that Whitcraft had a “history, … severe difficulty
controlling his impulses”; that Whitcraft suffered from pedophilia, alcohol
abuse, and anxiety disorder; that Whitcraft could have great difficulty controlling
his impulses if he started abusing alcohol again; that Whitcraft was in “the
moderate to higher risk to reoffend” group of sex offenders; and that Whitcraft
met the statutory definition of a “sexually violent predator.” After both sides
presented testimony, Whitcraft moved for a directed verdict. The trial judge
declined. The Berkeley County jury found that the state had proven beyond a
reasonable doubt that Whitcraft was a sexually violent predator under S.C. Ann.
Code § 44-48-30. The trial judge then committed Whitcraft to the Department
of Mental Health “long term.” Whitcraft appeals.

ISSUES

(1) Did the trial court err in not ruling that
the state failed to carry its burden under Kansa v. Crane?

(2) Does the Sexual Violent Predator Act violate
the Ex Post Facto clauses of the U.S. and the South Carolina constitutions?

(3) Does restraining Whitcraft even after he has served
his sentence constitute cruel and unusual punishment?

 ANALYSIS

“In an action at law, on appeal of a case tried
by a jury, the [j]urisdiction of this Court extends merely to the correction
of errors of law, and a factual finding of the jury will not be disturbed unless
a review of the record discloses that there is no evidence which reasonably
supports the jury's findings.” Townes Assoc., Ltd. v. City of Greenville,
266 S.C. 8, 86, 221 S.E.2d 773, 775 (1976) (citing Odom v. Weathersbee,
225 S.C. 253, 81 S.E.2d 788 (1954)).  

Whitcraft first argues that the state failed to
carry its burden under Kansas, as adopted in South Carolina.
[1] The South Carolina Act defines a sexually violent predator as a “person
likely to engage in acts of sexual violence if not confined ….” S.C. Code Ann.
§44-48-30(1) (2002). In In the Matter of the Care and Treatment of Luckabaugh,
351 S.C. 122, 144, 568 S.E.2d 338, 349 (2002), the court declared that under
the Act, “the individual can only be committed if he suffers from a mental illness
which he cannot sufficiently control without the structure and care provided
by a mental health facility, rendering him likely to commit a dangerous act.”
In re Luckabaugh clearly mandates, among other elements, a finding that
the defendant requires residential treatment in order to control his impulses
before he can be committed to a long-term state facility.

Whitcraft argues that no such evidence was adduced at trial.
We disagree. At trial, the state’s expert testified that Whitcraft suffered
from three illnesses: alcohol abuse, anxiety disorder, and “more serious” or
“severe” pedophilia that could cause him extreme difficulty in controlling his
impulses. The state’s expert witness also specifically agreed that “Whitcraft
suffers from a mental abnormality or personality disorder that … give[s] him
the propensity to engage in acts of sexual violence if not confined in a secure
facility for long-term care and treatment.” Based on that testimony, the jury
found that Whitcraft is a sexually violent predator as defined under the Act.

It is true that the evidence against Whitcraft
was less than overwhelming. [2] And there was contradicting testimony
from Whitcraft’s expert. However, when ruling on a motion for a directed verdict,
a trial court considers the existence of the evidence, not its weight. State
v. Glaser, 349 S.C. 545, 548, 564 S.E.2d 87, 92 (2002). Here, the jury found
that Whitcraft was a sexually violent predator. There was sufficient evidence
to reasonably support that finding. Therefore, we cannot disturb the finding.

Whitcraft also argues that the Act violates the
ex post facto clause of both the U.S. and the South Carolina Constitutions.
That contention, however, is without merit since our supreme court has already
ruled that the Act is constitutional. The court held in In re: Luckabaugh,
351 S.C. at 135, 568 S.E.2d at 344 that “the Act is a civil, non-punitive scheme.”
The court explained that a “statute creating two types of civil commitment is
not per se punitive in violation of the ex post facto clause.”
Id. at 138, 568 S.E.2d at 246.

Since the Act is constitutional, Whitcraft’s third
argument must necessarily fail.

AFFIRMED.

HUFF, STILWELL, and BEATTY, J.J., concur.

[1] Our Supreme Court has held that the state’s Sexual
Violent Predator Act is essentially similar to the Kansas statute addressed
in Kansas. In the Matter of the Care and Treatment of Allen,
351 S.C. 153, 156, 568 S.E.2d 354, 355 (2002) (citing In the Matter of
the care and Treatment of McCracken, 346 S.C. 87, 91, 551 S.E.2d 235,
238 (2001); In the Matter of the care and Treatment of Matthews, 354
S.C. 638, 649, 550 S.E.2d 311, 316 (2001)).

[2] The state’s expert indicated that
Whitcraft suffers from a serious form of pedophilia that could lead
to further offenses; that would be severe if left untreated; that he
could be treated in a non-residential facility; that Whicraft had cooperated
with the psychologist and accepted “some” responsibility for his actions.