State v. Andes

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.

Michael C. Andes, Appellant.

Appellate Case No. 2011-204706

Appeal From Berkeley County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2015-UP-193
Heard March 11, 2015 – Filed April 8, 2015

AFFIRMED

Appellate Defender Benjamin John Tripp, of Columbia,
for Appellant.

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

PER CURIAM: Michael C. Andes appeals his conviction for criminal sexual
conduct in the first degree, arguing the circuit court abused its discretion in
allowing the State's psychological expert to testify. Andes contends the expert's
testimony was not helpful to the jury because (1) it was not meaningfully
connected to the facts of the case, (2) the expert conflated her psychological
understanding of consent and assault with those legal concepts at issue in the trial,
(3) the expert's testimony was within the common knowledge and common sense
of the jury, and (4) the only effect of the expert's testimony was to boost the
credibility of the victim and usurp the role of the jury. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:

1. As to whether the circuit court should have prohibited the State's psychological
expert from testifying because her testimony was not meaningfully connected to
the facts of the case: 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 meet or interview the victim).

2. As to Andes's remaining arguments: State v. Walker, 366 S.C. 643, 660, 623
S.E.2d 122, 130 (Ct. App. 2005) ("An issue may not be raised for the first time on
appeal, but must have been raised to the trial judge to be preserved for appellate
review."); State v. Carlson, 363 S.C. 586, 597, 611 S.E.2d 283, 288 (Ct. App.
2005) ("Arguments not raised to or ruled upon by the trial court are not preserved
for appellate review.").1

AFFIRMED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.

1
During the expert's testimony at trial, Andes made a relevancy objection to the
solicitor's question regarding contact between perpetrators and victims of sexual
assault. At oral argument, appellate counsel claimed this objection conveyed
Andes's position that the expert was conflating her psychological understanding of
consent and assault with those legal concepts at issue in the trial. However, the
record contains no indication Andes raised that issue, or any of his other remaining
arguments, to the circuit court.