State v. Robert W. Eaves

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.

Robert Wayne Eaves, Appellant.

Appellate Case No. 2019-001683

Appeal From Colleton County
Thomas W. Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2023-UP-360
Submitted October 1, 2023 – Filed November 8, 2023

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Attorney General David A. Spencer, and Senior
Assistant Attorney General Mark Reynolds Farthing, all
of Columbia, for Respondent.

PER CURIAM: Counsel for Eaves filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there were no meritorious grounds for appeal
and requesting permission to withdraw from further representation. This court
denied the request to withdraw and directed the parties to file additional briefs.

Robert Wayne Eaves appeals his conviction for third-degree criminal sexual
conduct with a minor and sentence of five years' imprisonment. On appeal, Eaves
argues the trial court abused its discretion by admitting the unredacted videotape of
minor victim's forensic interview because the forensic interviewer (1) improperly
elicited the victim's statements through leading questions, and (2) bolstered the
victim's credibility by asking her to tell the truth at the beginning of the interview.
We affirm pursuant to Rule 220(b), SCACR.

We hold the trial court did not abuse its discretion by admitting the minor's
forensic interview because the totality of the circumstances provided particularized
guarantees of trustworthiness. See State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d
262, 265 (2006) ("The admission of evidence is within the discretion of the trial
court and will not be reversed absent an abuse of discretion."); State v. Douglas,
369 S.C. 424, 430, 632 S.E.2d 845, 848 (2006) ("An abuse of discretion occurs
when the conclusions of the trial court either lack evidentiary support or are
controlled by an error of law."); S.C. Code Ann. § 17-23-175(A) (2014) (providing
"an out-of-court statement of a child is admissible if . . . (1) the statement was
given in response to questioning conducted during an investigative interview of the
child; (2) an audio and visual recording of the statement is preserved on film . . . ;
(3) the child testifies at the proceeding and is subject to cross-examination . . . ; (4)
the [trial] court finds, in a hearing conducted outside the presence of the jury, that
the totality of the circumstances surrounding the making of the statement provides
particularized guarantees of trustworthiness"). We find the forensic interviewer
asked the minor open-ended questions and when she did repeat the minor's
answers, the questions did not suggest a desired answer. See S.C. Code Ann. §
17-23-175(B) (2014) (providing the five factors for the court to balance in
determining whether a minor's out-of-court statement possesses particularized
guarantees of trustworthiness: "(1) whether the statement was elicited by leading
questions; (2) whether the interviewer has been trained in conducting investigative
interviews of children; (3) whether the statement represents a detailed account of
the alleged crime; (4) whether the statement has internal coherence; and (5) sworn
testimony of any participant which may be determined as necessary by the court");
State v. Adams, 430 S.C. 420, 428, 845 S.E.2d 217, 221 (Ct. App. 2020) (holding
the "[v]ictim's [forensic] interview . . . was admissible pursuant to [section]
17-23-175 because it was video recorded, victim testified at trial subject to
cross-examination, and the circumstances of the interview provided particularized
guarantees of trustworthiness. . . . [This court also found that the interviewer] was
trained to interview children, and she did not ask leading questions"); State v.
Tyner, 273 S.C. 646, 653, 258 S.E.2d 559, 563 (1979) ("A leading question is one
which suggests to the witness the desired answer.").

As to Eaves's argument that the forensic interviewer's instruction to the minor
victim to tell the truth bolstered the victim's credibility, we find this issue is not
preserved for appellate review because it was not properly raised to or ruled upon
by the trial court. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693
(2003) ("In order for an issue to be preserved for appellate review, it must have
been raised to and ruled upon by the trial judge."); id. at 142, 587 S.E.2d at 694
("A party may not argue one ground at trial and an alternate ground on appeal.").

AFFIRMED. 1

WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.

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