In the Matter of Swinney

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 Derrick D. Swinney, Appellant.

Appeal From Darlington County

 J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2008-UP-156

Submitted March 3, 2008 – Filed March 12,
2008  

AFFIRMED

Appellate Defender LaNelle C. Durant, South Carolina Commission,
of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General Deborah R. J. Shupe, Assistant
Attorney General Brandy A. Duncan, all of Columbia; for Respondent.

PER CURIAM: Derrick D. Swinney appeals his commitment
to the South Carolina Department of Mental Health (the Department) as a
sexually violent predator.  We affirm.[1]

FACTUAL /
PROCEDURAL BACKGROUND

On November 29, 1999, Swinney pled guilty
to criminal sexual conduct.  He was sentenced to imprisonment for a period of
five years. 

Prior
to Swinney’s scheduled release from prison, his case was referred to the
sexually violent predator multi-disciplinary team.[2]  The multi-disciplinary team
reviewed Swinney’s case, determined he satisfied the definition of a sexually
violent predator as provided in the Sexually Violent Predator Act (the Act),[3] and forwarded the case to the
prosecutor’s review committee.[4]  The prosecutor’s review committee reviewed the case and agreed there
was probable cause to believe Swinney satisfied the criteria for commitment
under the Act.[5] 
The State subsequently filed a petition in circuit court to commit Swinney to
the Department for care and treatment as a sexually violent predator.[6]  After a hearing,[7] the trial court held probable cause
existed to find Swinney met the criteria for commitment and ordered a mental
health evaluation by Dr. Pamela Crawford.  Dr. Crawford evaluated
Swinney and concluded he did not meet the criteria for commitment under the
Act.  The trial court, therefore, dismissed the State’s petition without
prejudice. 

Swinney
was released to community supervision on December January 29, 2004.  Subsequent
to his release, Swinney’s community supervision was revoked because he failed
to attend sex offender counseling and failed to comply with a home detention
order.  In addition, in May 2005, Swinney was charged with criminal
sexual conduct, assault and battery of a high and aggravated nature, and
kidnapping. 

On September
6, 2005, relying in part on events occurring after Swinney’s release from
prison, the State filed its second petition to have Swinney confined to the
Department.  The trial court found probable cause existed to find
Swinney was a sexually violent predator.  Again, the trial court ordered that the
Department conduct a mental health evaluation of Swinney.  Dr. Donna Schwartz-Watts
evaluated Swinney and concluded he met the criteria for civil commitment. 

The
matter came to trial on August 2, 2006.  Prior to the start of the trial, Swinney moved to dismiss the case on the ground it was barred by the doctrine
of res judicata.  Swinney relied on the first probable cause hearing and
evaluation and the fact that he had no new convictions.  The trial court
denied Swinney’s motion, finding the prior predator case was dismissed without
prejudice and the events subsequent to Swinney’s release constituted a
substantial change in circumstances that warranted the new action.  Following
the trial court’s ruling, the case proceeded to a jury trial. 

Dr. Schwartz-Watts testified for the State.  She opined
Swinney suffers from “sexual disorder not other specified” that makes him
likely to sexually assault women with whom he has a sexual relationship.   Dr.
Schwartz-Watts stated it was her medical opinion that Swinney is predisposed to
commit future acts of sexual violence.  She stated Swinney’s history of
substance abuse, history of sexual violence, resistance to seek treatment, refusal
to admit his offending behavior, and violation of his community supervision
influenced her opinion. She ultimately concluded Swinney met the requirements
to be considered a sexually violent predator.

The jury found beyond a reasonable doubt Swinney
was a sexually violent predator.  The trial court committed Swinney to the
Department for long-term treatment.  Swinney appeals.

LAW / ANALYSIS

I.  Res
Judicata

Swinney argues the trial court erred in denying his motion to
dismiss because the State’s second petition was barred by res judicata.

Under
the doctrine of res judicata, a final judgment on the merits in a prior action
will bar the parties from initiating a second action based on the same issues.[8]  Res
judicata requires: (1) the judgment to be final, valid, and on the merits; (2)
the parties in the subsequent action to be identical to those in the first; and
(3) the second action to involve matter properly included in the first action.[9]  

Swinney contends
the initial probable cause hearing and dismissal without prejudice constituted
a final judgment on the merits.   We disagree.

The Act provides
that the purpose of a probable cause hearing is to determine “whether probable
cause exists to believe the person is a sexually violent predator.”[10] 
The Act further provides if the court determines probable cause exists, “the
court shall conduct a trial to determine whether the person is a sexually
violent predator.”[11]  A probable cause hearing, therefore, does not constitute a final judgment on
the merits.  Instead, a probable cause hearing is simply a preliminary hearing
for the purpose of determining whether probable cause exists to set the matter
for trial on the merits.

Furthermore,
a dismissal without prejudice does not constitute a final adjudication on the
merits. [12] 

Here,
the trial court dismissed the State’s initial petition without prejudice after
a probable cause hearing and a mental health evaluation.  The initial action,
therefore, did not constitute a final judgment on the merits.  Accordingly, res
judicata did not bar the State’s second petition or subsequent trial.

II.  Sexually Violent
Predator Act

Swinney also argues the trial court erred in allowing the State to
proceed with its case because the State did not meet the required elements as
outlined in the Act. 

A sexually violent predator is defined in the Act 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.”[13] 
“Mental abnormality” is defined as “a mental condition affecting a person’s
emotional or volitional capacity that predisposes the person to commit sexually
violent offenses.”[14] 
The phrase “likely to engage in acts of sexual violence” is defined as a
“propensity to commit acts of sexual violence . . . of such a degree as to pose
a menace to the health and safety of others.”[15] 

Here, Swinney
pled guilty to criminal sexual conduct, a sexually violent offense under the
Act.[16]  Also, the record shows evidence
Swinney suffers from a mental abnormality or personality disorder, making him
likely to engage in additional acts of sexual violence.  As set forth above,
Dr. Schwartz-Watts testified Swinney suffers from “sexual disorder not other specified,” which predisposes him to commit future
acts of sexual violence.  Dr. Schwartz-Watts further opined Swinney met the
criteria for commitment under the SVP Act. Accordingly, Swinney’s civil
commitment is

AFFIRMED.

HEARN, C.J., PIEPER, JJ., and GOOLSBY,
A.J., concur.

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

[2]  See S.C. Code Ann. § 44-48-40(A)(1)
(Supp. 2006).

[3]  S.C. Code Ann. § 44-48-10 et seq. (Supp. 2006).

[4]  See S.C. Code Ann. § 44-48-50 (Supp.
2006).

[5]  See S.C. Code Ann. § 44-48-60 (Supp.
2006).

[6]  See S.C. Code Ann. § 44-48-70 (Supp.
2006).

[7]  See S.C. Code Ann. § 44-48-70 (Supp.
2006).

[8]  Garris v. S.C. Reinsurance Facility, 333 S.C. 432, 449, 511 S.E.2d 48, 57
(1999). 

[9]  Town of Sullivan’s Island v. Felger, 318 S.C.
340, 344, 457 S.E.2d 626, 628 (Ct. App. 1995).

[10]  S.C. Code Ann. § 44-48-80(B)(3) (Supp. 2006).

[11]  S.C. Code Ann. § 44-48-90 (Supp. 2006).

[12]  See McEachern v. Black, 329 S.C.
642, 651, 496 S.E.2d 659, 663 (Ct. App. 1998); see also  Collins
v. Sigmon, 299 S.C. 464, 467, 385 S.E.2d 835, 837 (1989) (stating when an
action is dismissed without prejudice, a plaintiff can reassert the same causes
of action by curing defects that led to the dismissal).

[13]  S.C. Code Ann. § 44-48-30(1)
(Supp. 2006).   

[14]  S.C. Code Ann. §
44-48-30(3).   

[15]  S.C. Code Ann. § 44-48-30(9).

[16]  See SC. Code Ann. § 44-48-30 (2)(b).