In the Matter of Lipe

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

In the Matter of the Care and Treatment of
Floyd Daniel Lipe, Appellant.

Appeal From Greenwood County

Wyatt T. Saunders, Jr, Circuit Court Judge

Unpublished Opinion No.  2005-UP-057

Submitted December 1, 2004 – Filed January 24, 2005

AFFIRMED

George P. Callison, Jr., of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W.
McIntosh, Assistant Attorney General Deborah R. J. Shupe, and Assistant Attorney
General David Spencer, all of Columbia, for Respondent.

PER CURIAM:  A jury committed Floyd Daniel Lipe to the Department of
Mental Health as a sexually violent predator under the South Carolina Sexually
Violent Predator Act found in sections 44-48-10 to 170 of the South Carolina
Code (2002).  Lipe appeals, arguing the trial court erred by denying his motions
for directed verdict and JNOV, and prohibiting him from admitting a prior mental
evaluation.  We affirm. [1]   

FACTS

Lipe was convicted of four counts of a lewd act upon a minor, two counts of
criminal sexual conduct with a minor, second degree, and one count of directing,
performing, and promoting the performance of minors in sexual acts.  Lipe was
released on probation after serving two years in prison.  However, he violated
his probation and, within several months, was re-incarcerated.  Lipe was released
again approximately two years later, but was re-incarcerated for attempted arson.         

Subsequently, the State of South Carolina filed a petition pursuant to the
South Carolina Sexually Violent Predator Act, seeking to commit Lipe as a sexually
violent predator.  The case was tried before a jury.  During cross-examination
of the State’s expert, Lipe’s attorney sought to introduce a mental evaluation
of Lipe that was completed in 1991 at the request of the court in connection
with the initial charges brought against him.  The evaluation was conducted
to determine Lipe’s competency to stand trial.  The State objected to the
admission of the report on the basis of relevancy and hearsay, and the judge
ruled the report was inadmissible.

Lipe moved for directed verdict at the close of the State’s case, arguing the
State failed to prove he lacked the ability to control his actions as required
by Kansas v. Crane, 534 U.S. 407 (2002).  However, the judge denied the
motion.  Lipe renewed his motion at the close of all of the evidence and again,
the judge denied it.  The jury determined Lipe is a sexually violent predator
and commited him to the Department of Mental Health.  Lipe moved for judgment
notwithstanding the verdict on the same basis as his motions for directed verdict. 
The judge denied the motion and Lipe appeals.

LAW/ANALYSIS

I.  Directed Verdict and JNOV Motions

Lipe argues the trial judge erred in denying his motions for directed verdict
and JNOV because the State is required to prove an individual cannot control
his or her behavior before he or she can be adjudicated a sexually violent predator
under the South Carolina Sexually Violent Predator Act.  Lipe maintains the
State failed to offer any proof that he had serious difficulty controlling his
behavior, and therefore, the trial court erred in denying his motions.  We disagree. 

“When reviewing the denial of a motion for directed verdict or JNOV,
this Court must employ the same standard as the trial court by viewing the evidence
and all reasonable inferences in the light most favorable to the nonmoving party.” 
Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). 
The trial court must determine whether a verdict for the opposing party “would
be reasonably possible under the facts as liberally construed in his favor.” 
Harvey v. Strickland, 350 S.C. 303, 309, 566 S.E.2d 529, 532 (2002). 
In our review of the trial court’s ruling, we may reverse only if no evidence
exists to support that ruling.  South Carolina Prop. & Cas. Guar. Ass’n
v. Yensen, 345 S.C. 512, 521, 548 S.E.2d 880, 885 (Ct. App. 2001). 

The South Carolina Sexually Violent Predator Act defines a sexually
violent predator as a person who:

(a)
has been convicted of a sexually violent offense; and

(b)
suffers from a mental abnormality or personality disorder that makes
the person likely to engage in acts of sexual violence if not confined in a
secure facility for long-term control, care, and treatment.

S.C. Code Ann. § 44-48-30(1)(a) and (b) (2002).

In In re Luckabaugh, 351 S.C. 122, 142, 568 S.E.2d 338, 348 (2002),
a Sexually Violent Predator Act case, the South Carolina Supreme Court confirmed
Kansas v. Crane, 534 U.S. 407 (2002), required “a court to make a lack
of control determination before involuntarily committing someone under these
statutes.”  However, the court found Crane did not clarify how to determine
“where control ends and where a lack of control begins.”  Id.  Our supreme
court then held that “Crane holds the substantive due process clause
requires a court to determine an individual suffers from a mental illness which
makes it seriously difficult, though not impossible, for that person to control
his dangerous propensities.”  Id. at 143, 568 S.E.2d at 348.  The court
further determined an “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.”  Id. at 144, 568 S.E.2d at 349.

In a comparable case, In re Kennedy, 353 S.C. 394, 578 S.E.2d 27 (Ct.
App. 2003), we addressed an argument similar to the argument made by Lipe. 
In that case, Kennedy argued the State failed to prove beyond a reasonable doubt
that he was a sexually violent predator.  Id. at 396, 578 S.E.2d at 28. 
The State’s expert testified Kennedy suffered from pedophilia, frotteurism,
and anxiety disorder.  Id. at 398, 578 S.E.2d at 28.  She noted that
pedophilia is a lifelong illness and that Kennedy “had the propensity to commit
future acts on children because of the illness.”   Id.  Based on these
findings, we upheld the trial judge’s determination that Kennedy was a sexually
violent predator.  Id. at 398, 578 S.E.2d at 28-29.  In addition, relying
on Luckabaugh, we found because Kennedy suffered from pedophilia, an
abnormality critically involving a lack of control, inherent evidence existed
establishing Kennedy suffered from an inability to control his own behavior. 
Id. at 399-400, 578 S.E.2d at 29. 

In the case at bar, we find evidence to support the trial judge’s
ruling.  As stated in Luckabaugh, the judge was not required to make
a specific determination that Lipe lacked control, but need only find he suffers
from a mental illness that makes it difficult for him to control his behavior. 
The State’s expert, a forensic psychiatrist, diagnosed Lipe with pedophilia,
based on his past criminal convictions and tests indicating his continued arousal
to young girls.  The State’s expert also diagnosed Lipe as suffering
from alcoholism, anxiety disorder, and mild mental retardation.  Relying on
these diagnoses, as well as his age, lack of support system, his denial of the
offenses, past legal troubles, prior relationship history, and his propensity
to act impulsively, the State’s expert determined Lipe has the propensity to
commit further acts of sexual violence.   She also determined that Lipe needs
inpatient treatment.  Based on the testimony of the State’s expert, the evidence
established Lipe suffered from a mental illness making him unable to control
his behavior, and therefore, the trial judge did not err in denying Lipe’s motions
for directed verdict and JNOV. 

II.  Admissibility of Prior Evaluation

Lipe argues the trial judge erred in prohibiting him from admitting the 1991
mental evaluation by Dr. Richard Ellison because the evaluation was relevant
to show Lipe did not have a mental illness.  We disagree. 

The admission of evidence is within the discretion of the trial judge
and “will not be reversed on appeal absent an abuse of that discretion or the
commission of a legal error that results in prejudice to the defendant.”  State
v. Adams, 354 S.C. 361, 377, 580 S.E.2d 785, 793 (Ct. App. 2003).  Rule
401, SCRE, defines relevant evidence as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” 
“Evidence which is not relevant is not admissible.”  Rule 402, SCRE. 

Section 44-23-410(1) of the South Carolina Code (Supp. 1991) states
a judge can order an examination of a person charged with a crime if the judge
suspects the person is not fit to stand trial due to lack of “capacity to understand
the proceedings against him or to assist in his own defense as a result of a
lack of mental capacity.”  According to section 44-23-410 and the evaluation
itself, Dr. Ellison conducted the evaluation simply for purposes of determining
Lipe’s competency to stand trial, not to diagnose Lipe’s mental condition. 
Thus, the evaluation was not relevant to the case at bar.  Accordingly, the
trial judge did not abuse his discretion in determining the evaluation was not
relevant and therefore, inadmissible.

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

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