State v. Nakia Johnson

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.

Nakia Karreim Johnson, Appellant.

Appellate Case No. 2015-001436

Appeal From Kershaw County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2018-UP-109
Heard December 5, 2017 – Filed March 14, 2018

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
for Appellant.

Attorney General Alan McCrory Wilson, Assistant
Attorney General William M. Blitch, Jr., and Solicitor
Daniel Edward Johnson, all of Columbia, for
Respondent.

PER CURIAM: Nakia Johnson appeals his convictions of second-degree
criminal sexual conduct (CSC) with a minor and lewd act on a minor (lewd act).
On appeal, Johnson argues the trial court erred in refusing to grant a mistrial
because (1) the State's expert witness in child abuse assessment testified family
members generally question how they failed to recognize that abuse was occurring
and (2) the child advocacy interviewer testified he instructed Victim to tell the
truth during the forensic interview. We affirm in part, reverse in part, and remand
for a new trial.

STANDARD OF REVIEW
"The admission or exclusion of evidence is a matter addressed to the sound
discretion of the trial court and its ruling will not be disturbed in the absence of a
manifest abuse of discretion accompanied by probable prejudice." State v.
Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847–48 (2006). "The decision to
grant or deny a mistrial is within the sound discretion of the trial judge." State v.
Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (Ct. App. 2005). "An abuse of
discretion occurs when the conclusions of the trial court either lack evidentiary
support or are controlled by an error of law." Douglas, 369 S.C. at 429–30, 632
S.E.2d at 848. "To show prejudice, the appellant must prove 'that there is a
reasonable probability the jury's verdict was influenced by the challenged evidence
or the lack thereof.'" State v. Brown, 411 S.C. 332, 339, 768 S.E.2d 246, 249 (Ct.
App. 2015) (quoting Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609
S.E.2d 506, 509 (2005)). "The granting of a motion for a mistrial is an extreme
measure which should be taken only where an incident is so grievous that
prejudicial effect can be removed in no other way." Stanley, 365 S.C. at 34, 615
S.E.2d at 460.

EXPERT'S TESTIMONY
Johnson argues the trial court erred in refusing to grant a mistrial after the State's
expert witness in child abuse assessment testified family members in abuse cases
generally question how they failed to recognize that abuse was occurring. Johnson
asserts this testimony improperly bolstered the Mother's and Aunts' testimony
because they testified they were not aware of the recurring abuse of Victim.
Johnson asserts an expert testifying about the behavioral characteristics of family
members of abuse victims exceeds the scope of Brown1 and Anderson.2 We
disagree.

"[E]ven though experts are permitted to give an opinion, they may not offer an
opinion regarding the credibility of others." State v. Kromah, 401 S.C. 340, 358,
737 S.E.2d 490, 499 (2013). "The assessment of witness credibility is within the
exclusive province of the jury." State v. McKerley, 397 S.C. 461, 464, 725 S.E.2d
139, 141 (Ct. App. 2012). "Consequently, 'it is improper for a witness to testify as
to his or her opinion about the credibility of a child victim in a sexual abuse
matter.'" Brown, 411 S.C. at 343, 768 S.E.2d at 252 (quoting Kromah, 401 S.C. at
358–59, 737 S.E.2d at 500). A child abuse assessment expert can "testify to the
behavioral characteristics of sex abuse victims." Anderson, 413 S.C. at 218, 776
S.E.2d at 79.

The better practice, however, is not to have the individual
who examined the alleged victim testify, but rather to call
an independent expert. To allow the person who
examined the child to testify to the characteristics of
victims runs the risk that the expert will vouch for the
alleged victim's credibility.

Id. at 218–19, 776 S.E.2d at 79.

The trial court qualified Dr. Allison Foster, chief psychologist at the Assessment &
Resource Center (ARC), as an expert in child abuse assessments. When asked if
family members always know what was happening to a child, Dr. Foster answered,

1
Brown, 411 S.C. at 341–42, 768 S.E.2d at 251 (holding an expert's "specialized
knowledge of the behavioral characteristics of child sex abuse victims was relevant
and crucial in assisting the jury's understanding of why children might
delay disclosing sexual abuse, as well as why their recollections may become
clearer each time they discuss the instances of abuse").
2
State v. Anderson, 413 S.C. 212, 220–21, 776 S.E.2d 76, 80 (2015) ("The sole
purpose of [a forensic interviewer's] jury testimony is to lay the foundation for the
introduction of the videotape, and the questioning must be limited to that subject.
There is to be no testimony to such things as techniques, of the instruction to the
interview subject of the importance of telling the truth, or that the purpose of the
interview is to allow law enforcement to determine whether a criminal
investigation is warranted.").
No, they do not. And one of the most painful dynamics
in child sexual abuse cases involving family members is
that mothers -- and I'll say mothers because most often it
is the mother who is saying, how could I not have seen
something was going on? So every week -- and at my
job at the ARC, that's a question that --

Johnson objected, and the trial court held a bench conference. The trial court
instructed the jury to "[d]isregard that last statement and answer." After the jury
was excused from the room, the trial court allowed Johnson to place his objection
on the record. Johnson moved for a mistrial, arguing Dr. Foster's testimony
bolstered the credibility of Mother's testimony and was prejudicial because there
was no physical evidence. The trial court denied the motion for a mistrial, finding
Dr. Foster's testimony was not a comment on Mother's credibility and the court's
instructions to the jury to ignore the comment were sufficient.

We hold the trial court did not err in denying Johnson's motion for a mistrial
because Dr. Foster's testimony did not bolster Mother's testimony.3 The State
properly followed the procedure in Anderson by calling an expert who had no prior
involvement with the case. Dr. Foster never interviewed Victim or Mother, and
she did not have any prior knowledge of the case. Dr. Foster never commented—
directly or indirectly—about the credibility of Victim's allegations. Although Dr.
Foster's testimony that family members did not always know when a minor was
being sexually abused mirrored Mother's testimony that she did not know Johnson
was abusing Victim, this testimony did not rise to the level of bolstering Mother's
testimony. See Brown, 411 S.C. at 345, 768 S.E.2d at 253 ("The fact that [an
expert's] testimony corroborated some of the minor victims' reasons for delaying
disclosure of the abuse does not mean her testimony improperly bolstered their
accounts."). Moreover, the trial court struck Dr. Foster's statement about family
members not always being aware of abuse. Thus, had there been error, such was
cured by striking the testimony, and it did not rise to the level of being so
prejudicial as to require a mistrial. See Stanley, 365 S.C. at 34, 615 S.E.2d at 460

3
We find Johnson's bolstering argument as to the Aunts' testimony unpreserved.
See State v. Adams, 354 S.C. 361, 380, 580 S.E.2d 785, 795 (Ct. App.
2003) (stating a defendant may not argue one ground below and another on
appeal). On appeal, Johnson argues Dr. Foster's testimony bolstered "other family
members[']" testimony. However, at trial, Johnson argued Dr. Foster's testimony
bolstered "the credibility . . . of what was said by the mom and the daughter."
("The granting of a motion for a mistrial is an extreme measure which should be
taken only where an incident is so grievous that prejudicial effect can be removed
in no other way."). Therefore, we find the trial court did not abuse its discretion in
refusing to grant a mistrial. See id. at 33, 615 S.E.2d at 460 ("The decision to grant
or deny a mistrial is within the sound discretion of the trial judge.").

FORENSIC INTERVIEWER'S TESTIMONY
Johnson argues the trial court erred in denying his motion for a mistrial when the
forensic interviewer testified his procedure for an interview includes asking
interviewees if they will tell the truth. Johnson contends this goes directly against
the supreme court's holding in Anderson. Johnson asserts the testimony was
prejudicial because the case turned on the credibility of Victim because there was
no physical evidence in the case. The State admits the comment by the forensic
interviewer was "arguably improper" according to Kromah and Anderson, but it
"was minimal and did not warrant a mistrial."

In Kromah, our supreme court held forensic interviewers should avoid testifying
that they instructed the child to be truthful. 401 S.C. at 360, 737 S.E.2d at 500. In
Anderson, the supreme court clarified "[t]here is to be no testimony [by a forensic
interviewer] . . . of the instruction to the interview subject of the importance of
telling the truth . . . ." 413 S.C. at 221, 776 S.E.2d at 80. "This type of testimony,
which establishes the 'particularized guarantees of trustworthiness,' necessarily
conveys to the jury that the interviewer and law enforcement believe the victim and
that their beliefs led to the defendant's arrest, these charges, and this trial, thus
impermissibly bolstering the minor's credibility." Id.

At trial, David Kellin, the forensic interviewer, described how he began the
interview with Victim:
I begin by introducing myself, and very briefly in the
beginning, we talk about just general topics. We check
and see if they're aware that this is being
recorded. . . . [W]e encourage them to -- if they don't
know something, to say they don't know; if they don't
understand, to say I don't understand and not to guess.
We also ask in the beginning if they will . . . tell the truth
during the interview process.

We agree with Johnson that the forensic interviewer's testimony was improper
under Kromah and Anderson. In Anderson, our supreme court explicitly stated
forensic interviewers are not to testify about instructing victims to tell the truth
during forensic interviews because that testimony "necessarily" vouches for the
victim's credibility. See id. In the instant case, Kellin testified he begins forensic
interviews by asking victims if they would tell the truth during the interview
process. The trial court refused to strike this testimony or grant a mistrial. It is
difficult to tell from the record presented whether the jury heard Kellin ask this
question or Victim answer the question when the forensic interview was played at
trial. The State argues Kellin's one comment did not rise to the level of being so
prejudicial as to require a mistrial. Although it is true the prejudice in Anderson
was "overwhelming" and Kellin's testimony only mentioned truth-telling once, we
feel constrained by the language in Kromah and Anderson to find any mention of
the word "truth" during a forensic interview or during a forensic interviewer's
testimony to be improper. See Anderson, 413 S.C. at 220, 776 S.E.2d at 80 ("The
prejudice on this record is overwhelming.").

Although we find the trial court erred in allowing Kellin to testify that he asked
Victim if she would tell the truth in the forensic interview, we believe this error
only requires reversal of Johnson's conviction for second-degree CSC with a minor
because only that conviction depended solely on the credibility of Victim. See
State v. Chavis, 412 S.C. 101, 110, 771 S.E.2d 336, 341 (2015) ("The
determination whether a bolstering error is harmless depends on whether the case
turns on the credibility of the victim."). We affirm Johnson's lewd act conviction
because Mother's testimony about overhearing Johnson and Victim's conversation
corroborated Victim's testimony regarding the graveyard incident. Victim testified
Johnson told her to get into the car to go to the store, and he left before Mother and
the other children could come. Victim indicated Mother called to ask Johnson why
he left her and the other children. Victim recalled Johnson took her to a graveyard
instead of the store and told her to pull down her pants. Victim indicated Johnson
pulled down his pants and started touching her, but the incident stopped because
Mother was "still on the line." Victim testified they "hurried up and went to the
store," and he took her home.4

Similarly, Mother testified Johnson took Victim to the store but left her and the
other children at home. She indicated she called Johnson to ask why he left
without them and to tell him to get items from the store. Mother recalled she later
got an incoming call from Johnson, but he did not say anything when she answered

4
The State entered a surveillance video into evidence showing Johnson and Victim
at the store that day.
the phone. Mother then heard the following conversation between Johnson and
Victim:

I heard him say, you know I want to nut in you, but I
can't. . . . Then I heard him say, you know why? And she
didn't say anything. He said, do you know why? And
she said, because I'll get pregnant. And he asked her did
she miss him. She didn't say anything. And he asked her
how does she want to do it; does she want to get on top
or does she want him to get on top. And I think she said,
you on top.

We find Mother's testimony about the telephone call corroborated Victim's
testimony about the graveyard incident, and the graveyard incident was enough
evidence for the jury to convict Johnson of lewd act. See State v. Norton, 286 S.C.
95, 97, 332 S.E.2d 531, 532–33 (1985) (explaining, under the crime of lewd act, it
is unlawful "for any person" over fourteen to "wil[l]fully and lewdly commit or
attempt [to commit] any lewd or lascivious act upon or with the body . . . of a child
under" fourteen "with the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of such person or of such child" (quoting S.C. Code
Ann. § 16-15-140 (1976)5)). Mother's testimony, however, does not corroborate
Victim's testimony about any of the other incidents. The graveyard incident itself
is not enough to support Johnson's conviction for second-degree CSC with a minor
because there was no evidence of penetration. See S.C. Code Ann. § 16-3-655(B)
(2015) (defining second-degree CSC with a minor as "engag[ing] in a sexual
battery with a victim" who is between eleven and fourteen years old); S.C. Code
Ann. § 16-3-651 (2015) (defining "sexual battery" as "sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part
of a person's body or of any object into the genital or anal openings of another
person's body"). Therefore, we affirm Johnson's conviction for lewd act with a
minor and reverse and remand for a new trial on second-degree CSC with a minor.

CUMULATIVE ERROR
Johnson argues he is entitled to a new trial pursuant to the cumulative error
doctrine based on (1) the improper bolstering of the family members' testimony by

5
Lewd act is now third-degree CSC with a minor. See S.C. Code Ann. § 16-3-
655(C) (2015).
the State's expert witness and (2) the improper bolstering of the Victim's testimony
by the forensic interviewer. We disagree.

"The cumulative error doctrine provides relief to a party when a combination of
errors, insignificant by themselves, has the effect of preventing the party from
receiving a fair trial, and the cumulative effect of the errors affects the outcome of
the trial." State v. Beekman, 405 S.C. 225, 237, 746 S.E.2d 483, 490 (Ct. App.
2013). "An appellant must demonstrate more than error in order to qualify for
reversal pursuant to the cumulative error doctrine; rather, he must show the errors
adversely affected his right to a fair trial to qualify for reversal on this ground." Id.

We find no merit to this argument because we hold the trial court did not err in
regards to Dr. Foster's testimony.

CONCLUSION
For the foregoing reasons, we affirm Johnson's conviction for lewd act with a
minor. We reverse his conviction for second-degree CSC with a minor and
remand for a new trial.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

WILLIAMS, THOMAS, and MCDONALD, JJ., concur.