In the Matter of Bilton

THE STATE OF SOUTH CAROLINA
IN THE COURT OF APPEALS

In the Matter of the Care and Treatment of Micah A.
Bilton, Appellant.

Appellate Case No. 2017-001464

Appeal From Horry County
William H. Seals, Jr., Circuit Court Judge

Opinion No. 5775
Heard June 16, 2020 – Filed October 14, 2020

REVERSED AND REMANDED

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.

HEWITT, J.: The State called one witness during Micah Allen Bilton's trial for
civil commitment as an alleged sexually violent predator. That witness—a
forensic psychologist—was permitted to testify as an expert regarding a
controversial test performed on Bilton she neither administered nor observed. She
also shared the test results with the jury.

The witness had not reviewed the raw data the test produced. She also did not
know whether the full testing protocol used on Bilton had been peer-reviewed.
The expert explained she had confidence in the lab that had performed the test and
she saw no basis for questioning its results. She used these test results as part of
the basis, but not the sole basis, of her opinion that Bilton was a sexually violent
predator.

Bilton lodged several objections to this evidence, but we deal only with his
argument that the testifying psychologist served as a "conduit" that improperly
allowed the jury to consider the out-of-court test, which was inadmissible hearsay,
with no baseline demonstration that the test was reliable. We agree. Thus, we
reverse Bilton's adjudication as a sexually violent predator and remand for a new
trial.

FACTS

Bilton molested his four-year-old stepsister when he was fifteen and his six-year-old
niece when he was seventeen. The first incident resulted in a guilty plea to assault
and battery of a high and aggravated nature. The second resulted in a guilty plea to
criminal solicitation of a minor.

The State subsequently brought this action seeking Bilton's civil commitment under
the Sexually Violent Predator Act. That act is codified at sections 44-48-10 through
44-48-170 of the South Carolina Code (2018). The trial on this civil charge occurred
in June 2017. Bilton was twenty-two.

At the start of trial, Bilton moved in limine to prohibit Dr. Amy Swan—the
court-appointed evaluator and the State's sole expert—from testifying about a
penile plethysmograph or "PPG" test that a third party performed on Bilton at Dr.
Swan's request. After a proffer of Dr. Swan's testimony, the circuit court ruled
there was a sufficient foundation for her testimony's admission.

When she testified to the jury, Dr. Swan explained that although this PPG
documented Bilton's greatest level of sexual arousal was to adult women in a
consensual encounter, the test also showed Bilton demonstrated "deviant arousal,"
the most significant of which was to teen females in a coercive or rape scenario.
Dr. Swan also said the test revealed Bilton was aroused in varying scenarios by
preschool females, preschool males, grammar school females, and teenage males.
Dr. Swan said sexual interest in children, as measured by the PPG, is "the one
factor that carries the highest risk for committing another sexual crime."

ISSUE

Whether the trial court erred in allowing Dr. Swan to testify regarding the PPG test
results.
STANDARD OF REVIEW

The standard of review for evidentiary rulings is very deferential. "The admission
or exclusion of evidence is a matter within the trial court's sound discretion, and an
appellate court may only disturb a ruling admitting or excluding evidence upon a
showing of a 'manifest abuse of discretion accompanied by probable prejudice.'"
State v. Commander, 396 S.C. 254, 262–63, 721 S.E.2d 413, 417 (2011) (quoting
State v. Douglas, 369 S.C. 424, 429, 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." State v. Pagan, 369 S.C. 201, 208,
631 S.E.2d 262, 265 (2006).

ANALYSIS
We begin by briefly discussing the statutory law and the test in question before
addressing the parties' arguments. The Sexually Violent Predator Act provides that
once a court determines there is probable cause, the court must appoint a qualified
expert to evaluate whether a particular person is a sexually violent predator. See
S.C. Code Ann. § 44-48-80(D) (2018). Here, that evaluator—Dr. Swan—ordered
Bilton to undergo a PPG test as part of her evaluation. Another person—either Dr.
William Burke or someone working at his facility—performed the PPG.

The PPG measures changes in blood flow to the male sex organ while the test
subject views a series of visual and auditory stimulants corresponding to different
ages, genders, and scenarios. Certain levels of increased blood flow are associated
with arousal.

The test is controversial and has been criticized for a lack of standardization and
for being subject to manipulation. See United States v. Rhodes, 552 F.3d 624,
626–27 (7th Cir. 2009); United States v. Weber, 451 F.3d 552, 565 (9th Cir. 2006).
It has also been criticized as Orwellian when, as here, the State compels the subject
to arouse himself sexually and then forces him to view deviant stimulants so the
State can get a sense of the person's pre-dispositions and, potentially, use those pre-
dispositions against him. Weber, 451 F.3d at 571–72 (Noonan, J., concurring).

Courts have noted that PPGs are routinely used as a tool in treatment programs.
Weber, 451 F.3d at 562–63 (citing Berthiaume v. Caron, 142 F.3d 12, 16 (1st Cir.
1998)). Even so, with limited exceptions we will discuss later, courts have
"uniformly" declared that PPG test results are "inadmissible as evidence because
there are no accepted standards for this test in the scientific community." Doe ex
rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000).

Bilton frames his challenge as based on due process. He relies chiefly on the fact
that Dr. Swan testified regarding the PPG results even though she did not
administer the PPG, observe the test's administration, or review the raw data the
test generated. Bilton also relies on Dr. Swan's testimony that she did not know
whether the set of stimulants Dr. Burke used in Bilton's PPG had been
peer-reviewed. Bilton correctly notes that our decision in State v. McCray
prohibits one expert from serving as a "conduit" for a non-testifying expert's
testimony. 413 S.C. 76, 773 S.E.2d 914 (Ct. App. 2015). He says that is what Dr.
Swan did here.

The State contends it was appropriate for Dr. Swan to rely on Dr. Burke's work
because, as an expert, Dr. Swan is permitted to rely on facts or data that are not
themselves admissible in evidence as long as the facts or data are of the type
reasonably relied on by experts in the field. See Rule 703, SCRE. The State relies
chiefly on the fact that the Fifth Edition of the Diagnostic and Statistical Manual
(DSM-V)—a publication recognized as authoritative—mentions the PPG as the
most thoroughly researched method for providing a physiological indication of
someone's sexual attractions and as the method that has been most extensively used
to do so. The State also notes Dr. Swan's testimony that she was familiar with Dr.
Burke's work, that Dr. Burke uses the same stimulus sets in every PPG test, and
that Dr. Burke did not include any notations regarding quality control problems in
the report from Bilton's test.

If this was a criminal case, the error would not be debatable. Our decision in
McCray would be directly on point, as would the U.S. Supreme Court's decisions
in Melendez-Diaz v. Massachusetts1 and Bullcoming v. New Mexico.2 These cases
prohibit a testifying expert from acting as a "conduit" or "surrogate" for someone
else's scientific analysis. Yet, those cases turned on the Sixth Amendment and its
Confrontation Clause. We did not find any authority applying the Confrontation
Clause to civil commitment proceedings. Indeed, we found cases holding the Sixth
Amendment does not apply to these proceedings. See State v. Floyd Y., 2 N.E.3d
204, 209 (N.Y. 2013); In re MH-2008-000867, 236 P.3d 405, 407 (Ariz. 2010).

Authorities recognize, however, that the Due Process Clause of the Fifth
Amendment applies. See Allen v. Illinois, 478 U.S. 364, 374 (1986). Indeed, our

1
557 U.S. 305 (2009).
2
564 U.S. 647 (2011).
supreme court has noted civil commitment "constitutes a significant deprivation of
liberty that requires due process protection." Matter of Chapman, 419 S.C. 172,
179, 796 S.E.2d 843, 846 (2017) (quoting Addington v. Texas, 441 U.S. 418, 425
(1979)). The question here is whether due process dictates a different outcome in
this civil case because it is civil rather than criminal.

New York's highest court discussed due process in the context of civil commitment
proceedings at length and observed that, although experts may rely on hearsay in
forming opinions, allowing an expert to disclose hearsay to the jury has the
potential to make that expert a "conduit for hearsay." Floyd Y., 2 N.E.3d at 212
(quoting People v. Goldstein, 843 N.E.2d 727, 731 (N.Y. 2005)). The court
ultimately held due process "requires any hearsay basis evidence to meet minimum
requirements of reliability and relevance" before the evidence can be admitted in a
civil commitment proceeding. Id. at 213. We agree.

We deal here with a narrow question. As we mentioned earlier, some authorities
take the position that the PPG has value in treating sex offenders but that concerns
about reliability and a lack of uniform standards preclude its admission as evidence
at trial. See, e.g., Commonwealth v. Ortiz, 100 N.E.3d 790, 796–97 (Mass. App.
Ct. 2018) (collecting cases). Some jurisdictions have held that an expert may rely
on a PPG as a basis for the expert's opinion but have expressly declined to consider
whether the test results should be disclosed to the jury given the special weight the
jury is likely to afford things that have the appearance of scientific evidence. E.g.,
In re Commitment of Sandry, 857 N.E.2d 295, 317 (Ill. App. Ct. 2006). Those
questions are not before us, and we expressly note that we do not consider them
here.

This case presents the question of whether the circuit court erred in allowing the
State to introduce Bilton's PPG test results through Dr. Swan when the test was not
performed by Dr. Swan and when there was no demonstration that Bilton's test was
reliable beyond Dr. Swan's statements that she was familiar with Dr. Burke's work
and that nothing in Bilton's test results indicated there were problems with his test.
We agree with Bilton that the circuit court did indeed err.

Although Dr. Swan demonstrated basic familiarity with what a PPG is and how the
test is performed, she had never seen one, nor had she seen Dr. Burke perform one.
Dr. Swan was not familiar with Dr. Burke's stimulus sets or the machine Dr. Burke
used. She also did not know whether Dr. Burke was actually present when the test
was conducted.
Neither Dr. Swan nor Bilton had access to the raw data from Bilton's PPG. Bilton
specifically mentioned this in the course of his objection below. Dr. Swan also did
not perform her own scientific review of the test results. She accepted the test
results at face value and disclosed the test results to the jury.

Dr. Swan even vouched for Dr. Burke's work, explaining that Dr. Burke's
evaluation tools were "nationally recognized" and that it was important to use
someone like Dr. Burke to perform the test because it was important to have a PPG
test performed by someone who "does it like every single day."

We are not aware of any authority that would bless this evidence's admission. The
State points us to cases in two jurisdictions—Illinois and Washington—but those
cases are readily distinguishable. These cases appear to be the main exceptions to
the nearly uniform approach of excluding PPG test results from evidence. See
Ortiz, 100 N.E.3d at 796–97 (collecting cases).

We cited the case from Illinois earlier. Critically, Illinois courts do not examine
reliability before "scientific" evidence is admitted. Commitment of Sandry, 857
N.E.2d at 312 ("Unlike these courts, our inquiry does not include reliability").
Reliability is one of the three things a South Carolina court must assess before an
expert's testimony is admitted. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d
508, 518 (1999). That same Illinois case also said—explicitly—that it was not
holding PPG test results could properly be disclosed to the fact finder.
Commitment of Sandry, 857 N.E.2d at 317 ("We are expressly not presented with,
and do not consider, any other questions, such as whether presenting the results of
a PPG test directly to the trier of fact would be properly excluded because the
prejudicial effect of such evidence would substantially exceed its probative
value."). Disclosing the test results to the fact finder is, of course, precisely what
happened here.

As for Washington, the State directs us to a case holding that PPG evidence was
not novel and not subject to the test for scientific evidence. See In re Det. of
Halgren, 132 P.3d 714, 719 (Wash. 2006). Also, the expert in that case did not
state that the PPG test results were directly related to a sex offender's risk of
recidivism. Id. Thus, that case has the same distinctions that thwarted the Illinois
case's usefulness here.

The State claims this situation is no different from In re Manigo, another civil
commitment case in which the testifying expert told the jury about that expert's
out-of-court conversation with the defendant's counselor. 389 S.C. 96, 105–06,
697 S.E.2d 629, 633–34 (Ct. App. 2010). The defendant had not been honest
about his prior offenses with his counselor. Id. The counselor apparently shared
this with the court-appointed evaluator. Id. There, as here, the evaluator appeared
as the State's expert witness at trial. Id.

This court rejected the defendant's argument that the circuit court erred in allowing
the hearsay, noting that an expert may state an opinion based on facts not within
his firsthand knowledge and that the expert may testify to hearsay for the purpose
of showing what information the expert used to give an opinion. Id. at 106, 697
S.E.2d at 634. The present case poses the different question of whether due
process constrains the extent to which an expert may offer hearsay for the purpose
of explaining the expert's opinion. As we have explained, due process does not
allow an expert to serve as a "conduit" for hearsay without some baseline showing
that the hearsay is reliable.

We do not hold that a baseline demonstration of reliability required affording
Bilton the right to a face-to-face confrontation of the person who administered his
PPG. That would render due process indistinguishable from the right to
confrontation, and as we noted above, we did not find any authority applying the
confrontation clause to these proceedings. Bilton objected that he had not been
provided with the raw data generated by the test. Providing that data may have
been sufficient, but we do not hold it would have been sufficient. We wish to
emphasize that we are not called on to review whether some hypothetical
procedure would qualify as a baseline demonstration that Bilton's PPG test results
were reliable. We simply hold, as noted above, that due process does not allow a
testifying expert to be a pipeline for someone else's scientific work to be admitted
into evidence without a baseline demonstration of reliability. We also note that
nothing requires the State to seek the admission of PPG test results as evidence in
these cases.

Harmless Error

As with any improper evidence, the next step is to determine whether the
erroneous admission qualifies as a harmless error. See In re Gonzalez, 409 S.C.
621, 636, 763 S.E.2d 210, 217 (2014) ("No definite rule of law governs this
finding [of harmless error]; rather, the materiality and prejudicial character of the
error must be determined from its relationship to the entire case." (quoting Judy v.
Judy, 384 S.C. 634, 646, 682 S.E.2d 836, 842 (Ct. App. 2009))). We do not weigh
the evidence when determining this. Instead, we ask "whether beyond a reasonable
doubt the trial error did not contribute to the guilty verdict." State v. Tapp, 398
S.C. 376, 389–90, 728 S.E.2d 468, 475 (2012).
As we noted at the beginning, the facts that led to Bilton's two sex offenses are
deeply disturbing. To those facts, we add the notes that Dr. Swan explained she
did not use the PPG as the sole basis of her opinion and that the PPG results—that
Bilton had some level of deviant sexual attractions—were arguably cumulative
given that nobody disputed Bilton's two previous sex offenses.

Still, we cannot fairly say that beyond a reasonable doubt, the PPG test results did
not contribute to the jury's verdict. The PPG test results were presented as
empirical proof that the twenty-two-year-old Bilton had deviant sexual attractions
and as a material factor for the jury to consider. Dr. Swan said PPG test results
were "the one risk factor that carries the highest risk for committing another sexual
crime." Many cases recount the special solicitude juries afford testimony that has
the appearance of scientific evidence. We doubt the jury ignored the PPG test
results in rendering its decision.

CONCLUSION

For the foregoing reasons, we reverse the circuit court's judgment and remand for a
new trial

REVERSED AND REMANDED.

LOCKEMY, C.J., and GEATHERS, J., concur.