In the Matter of Jenkins

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

In the Matter of the Care and Treatment of Leonard
Jenkins, Appellant.

Appellate Case No. 2016-000035

Appeal From York County
Frank R. Addy, Jr., Circuit Court Judge

Unpublished Opinion No. 2018-UP-311
Submitted May 1, 2018 – Filed July 5, 2018

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia, for Respondent.

PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following
authorities:

1. As to Appellant's argument the trial court erred in permitting the State to
elicit testimony from its expert witness that young girls would be at risk if Jenkins
were released because such a question was irrelevant and highly inflammatory,
akin to a "golden rule" violation, we find no error. First, we find the testimony
relevant to the question whether Appellant's release would pose a menace to the
health and safety of others. See S.C. Code Ann. § 44-48-30(1) (2018) (defining a
sexually violent predator (SVP) as a person who has been convicted of a sexually
violent offense and who "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" (emphasis added)); S.C.
Code Ann. § 44-48-30(9) (2018) (declaring that a person's propensity to commit
acts of sexual violence "of such a degree as to pose a menace to the health and
safety of others" satisfies the provision that the person is "likely to engage in acts
of sexual violence" (emphases added)); Rule 401, SCRE ("'Relevant evidence'
means 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."). Further, Appellant's trial counsel never argued
to the trial court that the testimony was prejudicial, much less that admission of
this testimony was akin to violating the "golden rule." Rather, counsel's sole
objection was on the ground of relevance. Neither did counsel raise any objection
to the State's closing argument. Accordingly, such arguments are not preserved for
review. See State v. Byers, 392 S.C. 438, 444, 710 S.E.2d 55, 58 (2011) (holding,
for an objection to be preserved for appellate review, the objection must be made
with sufficient specificity to inform the trial court of the point being urged by the
objector); State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005)
(holding an argument advanced on appeal but not raised and ruled on below is not
preserved); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A
party need not use the exact name of a legal doctrine in order to preserve it, but it
must be clear that the argument has been presented on that ground."). Finally, even
if the arguments were properly preserved, we would find no prejudice. Dr. Swan
testified she diagnosed Appellant with pedophilic disorder, which applies to
individuals who, for over a period of six months, "demonstrate[] sexual attraction
to children who haven't yet entered puberty, [who are] typically less than 13," that
Appellant was sexually attracted to females, and he had "serious difficulty
controlling his behavior." Dr. Swan, numerous times throughout her testimony,
discussed Appellant's history of committing sexual crimes against the girls,
specifically noting they were nine, twelve and fourteen years-old at the time.
Because there was an abundance of evidence from which the jury could conclude
that, specifically, girls between the ages of nine and fourteen would be those at risk
should Appellant not be confined for long-term control, care, and treatment,
Appellant has failed to establish prejudice in the admission of this testimony. See
State v. Cottrell, 421 S.C. 622, 640, 809 S.E.2d 423, 433 (2017) ("To warrant
reversal based on the admission or exclusion of evidence, the appellant must prove
both the error of the ruling and the resulting prejudice, i.e., that there is a
reasonable probability the jury's verdict was influenced by the challenged evidence
or the lack thereof." (quoting Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19,
26, 609 S.E.2d 506, 509 (2005))); State v. Griffin, 339 S.C. 74, 77-78, 528 S.E.2d
668, 670 (2000) ("There is no reversible error in the admission of evidence that is
cumulative to other evidence properly admitted.”).

2. As to Appellant's argument trial counsel provided ineffective assistance in
failing to move to exclude the State's expert diagnosis of "other specified
personality disorder with antisocial features," we find this issue is not preserved for
our review, as the issue may not be raised in an SVP case for the first time on
direct appeal. See Buist v. Buist, 410 S.C. 569, 574, 766 S.E.2d 381, 383 (2014)
("It is well settled that an issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the trial court to be preserved."
(quoting Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006))); In
re Care & Treatment of Chapman, 419 S.C. 172, 182, 186, 796 S.E.2d 843, 848,
850 (2017) (declining to address the merits of the appellant's ineffective assistance
of counsel claims arising from his commitment under the SVP Act on direct appeal
because an evidentiary hearing was necessary and the claims were not preserved
for appellate review due to trial counsel's failure to object to any of the alleged
errors); id. at 186, 796 S.E.2d at 850 ("[T]he appropriate forum to assert the right
to effective assistance of counsel [in an SVP matter] is the long-recognized
safeguard of due process: habeas relief.").

AFFIRMED.1

HUFF, GEATHERS, and MCDONALD, JJ., concur.

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