State v. Jolly

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.

Samuel Jolly, Appellant.

Appellate Case No. 2018-000259

Appeal From Dorchester County
Edgar W. Dickson, Circuit Court Judge

Unpublished Opinion No. 2020-UP-327
Heard October 15, 2020 – Filed December 2, 2020

AFFIRMED

Appellate Defender Lara Mary Caudy, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia, and Solicitor David Michael Pascoe, Jr., of
Orangeburg, all for Respondent.

PER CURIAM: Samuel Jolly married the mother of a nine-year-old girl (Victim)
in 1996 and moved in with them. Over the course of the next year, Jolly sexually
abused Victim. When Victim reported the abuse to a teacher, an investigation began,
leading to arrest warrants for Jolly. Jolly, however, had moved to Florida, and the
warrants were not served until he was apprehended in 2013. In 2013, he was indicted
for one count of Criminal Sexual Conduct (CSC) with a Minor, and in 2014, he was
indicted for one count of Lewd Act upon a Child. Both indictments listed the time
frame of the crime as "August 1, 1996 to August 22, 1997." The indictment for
Lewd Act upon a Child did not list the type of lewd act alleged to have been
committed; however, before his trial, Jolly received discovery, including two
statements of the Victim alleging Jolly committed up to sixteen discreet instances of
lewd acts during the time period stated in the indictment.

At his 2018 trial, Jolly moved to quash his indictments; the motion was denied. Jolly
also moved to exclude evidence of any lewd acts that occurred outside the scope of
his indictment, asserting that, unless the Lewd Act indictment listed the specific act
the State was prosecuting him for, the State was circumventing the rules regarding
propensity evidence. The trial court ruled no evidence of lewd acts occurring before
the indictment's timeframe could be entered into evidence at trial, but it refused to
exclude evidence of lewd acts occurring within the timeframe of Jolly's indictment
as prior bad acts.

Jolly also moved to exclude testimony from the forensic pediatrician who physically
examined Victim in 1997 and found Victim's hymen was torn. She documented the
exam with photographs and video, but by the time Jolly's trial occurred in 2018, only
the notes from the exam still existed. Jolly asserted the photographs and video of
the exam were the "underlying facts or data" upon which the pediatrician had relied
in forming her expert opinion Victim's hymen was torn. Jolly argued that allowing
the pediatrician to testify to this expert opinion without disclosing the photographs
and video violated both Rule 705, SCRE,1 and his confrontation clause rights. The
trial court disagreed, and, after taking in camera testimony from the pediatrician, it
ruled: 1) the pediatrician's testimony was reliable; 2) the pediatrician's testimony did
not improperly bolster Victim's testimony; 3) the probative value of the pediatrician's
testimony was not outweighed by the danger of unfair prejudice; 4) the subject
matter of the testimony was "beyond the ordinary knowledge of the juror and [did]
require expert training in the sense that [the pediatrician] is a doctor"; and 5) the

1
"The expert may testify in terms of opinion or inference and give reasons therefor
without first testifying to the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to disclose the underlying facts
or data on cross-examination." Rule 705, SCRE.
pediatrician had the requisite knowledge and skill to testify on the subject of her
testimony. The trial court then allowed the pediatrician to testify as to her physical
exam finding of a torn hymen but ruled she could not testify to any opinion as to
what caused the tear in the hymen.2

After hearing testimony from Victim, the investigators, and the pediatrician, as well
as Jolly's testimony in defense, the jury convicted Jolly on both indictments. Jolly
now appeals, contending the trial court erred in: 1) finding Jolly's indictments were
not vague or overbroad; 2) failing to exclude evidence of his prior bad acts against
Victim; 3) admitting opinion evidence from the pediatrician without properly
qualifying her as an expert; and 4) admitting expert testimony from the pediatrician
regarding the exam she completed on Victim when the photographs and video taken
during the exam were lost. We affirm.

I.
The trial court did not err in denying Jolly's motion to quash his indictments, as they
were not vague or overbroad. See State v. Baker, 411 S.C. 583, 588, 769 S.E.2d 860,
863 (2015) ("In criminal cases, the appellate court sits to review errors of law only."
(citation omitted)). The timeframe of Jolly's indictments was not overly broad.
Compare State v. Wade, 306 S.C. 79, 80, 409 S.E.2d 780, 781 (1991) (upholding
indictment for CSC First Degree with a Minor alleging digital penetration of the
victim's vagina, even though the timespan of the indictment was written as "during
1984 through 1985"), and State v. Tumbleston, 376 S.C. 90, 101–02, 654 S.E.2d 849,
855 (Ct. App. 2007) (upholding indictments for CSC Fist Degree with a Minor and
Lewd Act upon a Child which covered a three-year timespan because "indictments
for a sex crime that allege offenses occurred during a specified time period are
sufficient when the circumstances of the case warrant considering an extended time
frame"), with Baker, 411 S.C. at 590–91, 769 S.E.2d at 864 (quashing Baker's
indictment for Lewd Act upon a Child because Baker was re-charged two weeks
before trial and his new indictment spanned a six-year timeframe instead of the
timeframe of his previous indictment, which included three summers only).

Further, we find the effect of the loss of the documents from 1997 implicates a
sufficiency of the evidence argument but does not bear on whether Jolly's indictment

2
The trial court was not asked to and did not charge the jury on the meaning and
significance of expert testimony at any point during the trial; however, whether this
was an error is not an issue before us on appeal. See State v. Bray, 342 S.C. 23, 27
n.2, 535 S.E.2d 636, 639 n.2 (2000) (finding it is error for an appellate court to
consider an issue not raised to it).
gave him sufficient notice of the charges against him. See State v. Massey, 430 S.C.
349, 358, 844 S.E.2d 667, 671 (2020) ("A motion to quash does not test the
sufficiency of the State's evidence; the sufficiency of the evidence can properly be
challenged only by a motion for a directed verdict following the State's presentation
of its case at trial.").

Next, we find Jolly's indictment for Lewd Act upon a Child enabled the trial court
to know what judgment to pronounce and apprised Jolly of the elements of the
offense. See State v. Gentry, 363 S.C. 93, 102–03, 610 S.E.2d 494, 500 (2005)
("[T]he circuit court should judge the sufficiency of the indictment by determining
whether (1) the offense is stated with sufficient certainty and particularity to enable
the court to know what judgment to pronounce, and the defendant to know what he
is called upon to answer and whether he may plead an acquittal or conviction
thereon; and (2) whether it apprises the defendant of the elements of the offense that
is intended to be charged."); S.C. Code Ann. § 17-19-20 (2014). However, it is a
closer question whether Jolly's indictment on its face gave Jolly enough specificity
to know what lewd act he would be called upon to answer at his trial. See State v.
Gunn, 313 S.C. 124, 128–30, 437 S.E.2d 75, 77–78 (1993) (finding it was
questionable whether "on its face" a general indictment for conspiracy which tracked
the language of the trafficking statute "in most of its many permutations" without
giving facts about the conspiracy charged "sufficiently apprised the appellants of the
charges against them").

We do not, however, believe this potential facial deficiency required quashing the
indictment. See Baker, 411 S.C. at 589, 769 S.E.2d at 864 ("In determining whether
an indictment meets the sufficiency standard, the trial court must look at the
indictment with a practical eye in view of all the surrounding circumstances" that
"existed pre-trial, in order to determine whether a given defendant has been
'prejudiced,' i.e., taken by surprise and hence unable to combat the charges against
him." (internal citations omitted)). Looking at the surrounding circumstances before
Jolly's trial, Jolly had access to Victim's statements describing the lewd acts alleged
to have occurred in time to prepare a defense. Compare Baker, 411 S.C. at 590–92,
769 S.E.2d at 864–65 (quashing indictment when pre-trial surrounding
circumstances resulted in Baker having only two weeks to prepare for trial under
new, general indictment for Lewd Act upon a Child), with Gunn, 313 S.C. at 129–
30, 437 S.E.2d at 78 (upholding general indictment for conspiracy when the
defendants had access to evidence presented to the State Grand Jury before their trial
and, therefore, had notice of the facts leading to their charge); see also LaFave et al.,
5 Criminal Procedure § 19.3(c) (4th ed. 2019) (collecting cases of specificity
challenges to general indictments in child sex abuse prosecutions and stating the key
to providing notice in a case where a victim is repeatedly "subjected to the same
criminal actions by the same offender in the same place over a period of time . . .
may lie more in providing discovery" than in specifying facts in the indictment).
Therefore, we find no error in the denial of Jolly's motion to quash his indictment
for Lewd Act upon a Child.

Further, even if the indictment was insufficient on its face and was not saved by the
pretrial surrounding circumstances and discovery, Jolly has not demonstrated how
he was prejudiced. Cf. State v. Samuels, 403 S.C. 551, 556–57, 743 S.E.2d 773, 776
(2013) (finding a conviction resulting from a duplicitous indictment should be
upheld unless the defendant can prove the indictment: 1) failed the Gentry
sufficiency test; and 2) actually prejudiced the defendant by implicating a
defendant's rights "to notice of the charge against him, to a unanimous verdict, to
appropriate sentencing[,] and to protection against double jeopardy in a subsequent
prosecution"). First, through discovery, Jolly had actual notice of the alleged acts
leading to his charges. Second, the lack of specificity as to which act could give rise
to a conviction of Lewd Act upon a Child does not implicate Jolly's right to a
unanimous verdict. See State v. Adams, 430 S.C. 420, 432–37, 845 S.E.2d 217, 223–
26 (Ct. App. 2020) (finding Adams' right to a unanimous verdict for one count of
CSC First Degree with a Minor was not implicated even though evidence was
presented during trial indicating he committed several sexual batteries upon the
child—and of different types). Third, we cannot perceive how Jolly is prejudiced
by double jeopardy concerns. In our view, the State's decision to indict him for only
one count of Lewd Act upon a Child over the whole year when the State could have
charged him with eleven to sixteen discrete charges for the same time period means
Jolly may actually benefit from the State's discretion: the State cannot recharge him
for those discrete acts. See State v. Dewees, 76 S.C. 72, 76, 56 S.E. 674, 675 (1907)
(double jeopardy bars prosecution if "the facts charged in the second indictment
would, if true, have sustained the first").

Finally, the State did not circumvent the rules regarding propensity evidence by
charging Jolly with one count of Lewd Act upon a Child over the course of a year
instead of charging him with multiple counts during the same time period.
Accordingly, the trial court did not err in finding evidence of the lewd acts
committed by Jolly against Victim within the timeframe of the Lewd Act indictment
were direct evidence of a crime Jolly was being prosecuted for committing, rather
than prior bad acts. See State v. Hurell, 424 S.C. 341, 351, 818 S.E.2d 21, 26 (Ct.
App. 2018) ("The admission of evidence is within the discretion of the trial court
and will not be reversed absent an abuse of discretion. An abuse of discretion occurs
when the conclusions of the trial court either lack evidentiary support or are
controlled by an error of law." (citations omitted)).

II.
The trial court did not abuse its discretion in ruling: 1) the pediatrician was an expert;
2) the pediatrician could testify as to her physical exam finding of a torn hymen; and
3) the pediatrician could not testify to her opinion as to what caused the tear in the
hymen. See State v. Simpson, 425 S.C. 522, 536–37, 823 S.E.2d 229, 236–37 (Ct.
App. 2019) (stating both the qualification of a witness as an expert and the admission
of expert testimony are within the sound discretion of the trial court and will not be
reversed absent an abuse of discretion). First, the pediatrician's visual finding of
Victim's torn hymen required more understanding of a child's genitalia than a lay
person would have and was, therefore, expert testimony. See Rule 702, SCRE ("If
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise."). Next, the trial court made appropriate
findings on the record to qualify the pediatrician as an expert on the subject matter
of her testimony. See Simpson, 425 S.C. at 536, 823 S.E.2d at 236 (stating "'[b]efore
a witness is qualified as an expert, the trial court must find (1) the expert's testimony
will assist the trier of fact, (2) the expert possesses the requisite knowledge, skill,
experience, training, or education, and (3) . . . the expert's testimony is reliable'"
(internal citation removed) (alterations in original)). Additionally, the pediatrician's
method for forming the opinion Victim's hymen was torn was reliable, and the
"underlying facts or data" on which her opinion was based was the exam itself. Rules
702, 703, and 705, SCRE; State v. Jones, 423 S.C. 631, 636, 817 S.E.2d 268, 270
(2018) ("In determining whether to admit expert testimony, the trial court must make
three inquiries: (1) whether the evidence will assist the trier of fact; (2) whether the
expert has acquired the requisite knowledge and skill to qualify as an expert in that
particular subject matter[;] and (3) whether the substance of the testimony is
reliable."); Simpson, 425 S.C. at 537, 823 S.E.2d at 237 ("'A trial court's ruling on
the admissibility of an expert's testimony constitutes an abuse of discretion whe[n]
the ruling is manifestly arbitrary, unreasonable, or unfair.'" (alterations in original)
(quoting State v. Grubbs, 353 S.C. 374, 379, 577 S.E.2d 493, 496 (Ct. App. 2003))).
Jolly seizes on the trial court's statement that the torn hymen finding was not an
expert opinion but an observable fact based on personal knowledge. The trial court,
however, stated the pediatrician's testimony included "observations based on
education and experience." The trial court stated, "it does require the expertise of a
doctor to report on the physical findings that she made, and I am going to allow her
to testify just as she did." Even if the trial court's ruling was contradictory, we may
affirm for any reason appearing in the record, and the record supports the conclusion
the pediatrician's testimony as to the torn hymen was a proper expert opinion. Rule
220(c), SCACR (stating the court may affirm on any ground in the record).

Further, Jolly's Rule 705, SCRE argument is without merit. The pediatrician gave a
full description of how the exam was conducted, why it was conducted, and what
she discovered during the exam. Accordingly, the pediatrician's testimony exposed
the jury to the underlying facts relevant to her opinion formation and, in doing so,
went above and beyond the requirements outlined in Rule 705, SCRE.

Finally, the loss of the photographs and video did not implicate Jolly's confrontation
clause rights. The pediatrician's physical exam finding was not based on testimonial
hearsay, and she was available for cross-examination about her qualifications as well
as her method of conducting and documenting the physical exam. See State v.
Graham, 314 S.C. 383, 385, 444 S.E.2d 525, 527 (1994) ("Specifically included in
a defendant's Sixth Amendment right to confront the witness is the right to
meaningful cross-examination of adverse witnesses."); State v. McCray, 413 S.C.
76, 90, 773 S.E.2d 914, 921–22 (Ct. App. 2015) (finding expert opinion testimony
may violate the confrontation clause if the opinion is based on testimonial hearsay
and not independent judgment).

Accordingly, Jolly's convictions are

AFFIRMED.

THOMAS, HILL, and HEWITT, JJ., concur.