State v. Sullivan

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.

Michael Sullivan, Appellant.

Appellate Case No. 2019-000084

Appeal From Greenville County
Alex Kinlaw, Jr., Circuit Court Judge

Unpublished Opinion No. 2021-UP-183
Submitted April 1, 2021 – Filed May 19, 2021

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Jonathan Scott Matthews, both of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, all for Respondent.

PER CURIAM: Michael Sullivan appeals his convictions on two counts of
third-degree criminal sexual conduct (CSC) with a minor and concurrent sentences
of ten years' imprisonment. On appeal, he argues the trial court erred in admitting
hearsay testimony. We affirm.

The minor victim (Victim), whose maternal grandmother was married to Sullivan,
first disclosed the alleged abuse to her best friend's mother and then to her own
mother. Victim later underwent a forensic interview at the Julie Valentine Center
in Greenville.

At trial, Sullivan objected to testimony given by the friend's mother that Victim
said Sullivan molested her by having her sit on top of him with her back to him,
making her put her hands down his pants, and "put[ting] his hands down her
private area" as inadmissible hearsay. The trial court overruled the objection.
Sullivan challenges this ruling on appeal, arguing this testimony exceeded limits of
Rule 801(d)(1)(D), SCRE, which provides that an out-of-court statement is not
hearsay if (1) the declarant testifies at trial and is subject to cross-examination
concerning the statement, (2) the statement is consistent with the declarant's
testimony in a CSC case in which the declarant is the alleged victim, and (3) the
statement is limited to the time and place of the incident.

We agree with Sullivan's interpretation of Rule 801(d)(1)(D) and believe the trial
court should have sustained a timely and properly made objection to the disputed
testimony. The out-of-court statements at issue went beyond the time and place of
the alleged molestation. However, the witness had already testified about the
victim's description of Sullivan's abuse when Sullivan made his hearsay objection,
and Sullivan never moved to strike this testimony. We therefore have concerns
that Sullivan failed to take adequate measures to preserve his objection to this
testimony for appellate review. See State v. Byers, 392 S.C. 438, 444, 710 S.E.2d
55, 58 (2011) ("For an objection to be preserved for appellate review, the objection
must be made at the time the evidence is presented . . . ."); id. ("When a witness
answers a question before an objection is made, the objecting party must make a
motion to strike the answer to preserve the issue of that statement's admissibility.").

In any event, we note Victim testified regarding her accusations during Sullivan's
trial and was subject to cross-examination. Furthermore, Victim's mother testified
Victim alleged "some touching" that was "over her underwear," and the State
played a recording of Victim's forensic interview, during which Victim described
how Sullivan molested her, for the jury in open court without objection.
Therefore, we find the disputed testimony was cumulative to other properly
admitted evidence, and and the trial court did not commit reversible error in
admitting it. See State v. Griffin, 339 S.C, 74, 77-78, 528 S.E.2d 668, 670 (2000)
("There is no reversible error in the admission of evidence that is cumulative to
other evidence properly admitted.").

AFFIRMED.1

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

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