State v. Senior

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.

George B.
Senior, Appellant.

Appeal From Dorchester County

James C. Williams, Jr., Circuit Court
Judge

Unpublished Opinion No. 2010-UP-256

Submitted April 1, 2010 – Filed April 26,
2010   

AFFIRMED

Appellate Defender Kathrine H. Hudgins, of Columbia, for
Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Deputy Attorney General Julie M. Thames, all of Columbia;
and Solicitor David Michael Pascoe, of Orangeburg, for Respondent.

PER CURIAM:  George B.
Senior appeals his convictions for criminal sexual conduct with a minor in the
first degree and lewd act upon a child.  Senior argues the trial court erred in
excluding testimony concerning whether the victim had been sexually assaulted
by a third party.  Specifically, Senior contends he was unable to present
evidence that the victim's behavioral problems resulted from a third-party
assault.  We affirm.

Ordinarily, an appellate court will not review an
alleged error regarding the exclusion of testimony unless a proffer of
testimony is properly made on the record.  State
v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402-03 (1986).  Absent
a proffer, it is impossible for an appellate court to determine the effect of
the excluded testimony.  Baber v. Greenville County, 327 S.C. 31, 41,
488 S.E.2d 314, 319 (1997).  However, where the trial court refuses to allow
the proffer, and the appellate court can determine from the record what the
testimony was intended to show, the appellate court may address the merits.  Schmidt,
288 S.C. at 303, 342 S.E.2d at 403.  

Senior's counsel did not attempt to proffer testimony
from either the mental health therapist or the psychiatrist regarding whether
anal penetration was reported as part of victim's prior history of abuse.  However,
Senior's counsel did attempt to proffer testimony from Dr. Betsy Gibbs, the sex
therapist who took the forensic information from the victim.  The trial
court denied counsel's proffer request on the grounds the question was
irrelevant.  Thus, although the proffer attempt was unsuccessful, this
issue is preserved to the extent this court can determine from the record what the
testimony was intended to show.  See Schmidt, 288 S.C. at 303,
342 S.E.2d at 403.

Reaching the merits, counsel's intended question
provides no evidentiary support for Senior's current argument.  Counsel stated "anal
penetration starts with other stuff," implying she intended to ask Dr.
Gibbs whether a person who commits a sexual assault involving anal penetration
generally commits prior sexual assaults involving other body parts.  Counsel
did not suggest that the alleged perpetrator of both acts was not Senior, nor
did she suggest the other perpetrator could have caused the victim's behavioral
problems instead of Senior.  Counsel's implied line of questioning would not
serve to exculpate Senior; thus, Senior suffered no prejudice from the
exclusion of the proposed testimony.

In addition, this evidence does not fall within any of
the recognized exceptions to the Rape Shield Statute.  See S.C. Code
Ann. § 16-3-659.1(1) (2003).  Counsel's implied line of questioning would not
provide an alternative source to explain the victim's sexual knowledge, nor
would it impeach the victim's credibility.  See State v. Finley,
300 S.C. 196, 200, 387 S.E.2d 88, 90 (1989) (holding the trial court improperly
excluded evidence that a female victim engaged in a sexual encounter with
another man in defendant's presence to show the victim had motive to falsely
accuse the defendant); State v. Grovenstein, 340 S.C. 210, 220, 530
S.E.2d 406, 412 (Ct. App. 2000) (holding evidence of three male victims' prior
sexual conduct was relevant to Grovenstein's defense as an alternate
explanation of how the victims possessed knowledge of the alleged sexual
assault by Grovenstein);  State v. Lang, 304 S.C. 300, 301-02, 403
S.E.2d 677, 678 (Ct. App. 1991) (holding the trial court improperly excluded
evidence of the victim's homosexuality to impeach the credibility of the victim
when the victim denied his homosexuality on direct examination).

The trial court did not abuse its discretion in
excluding testimony regarding an alleged sexual assault of the victim by a
third party.  Accordingly, Senior's conviction is

AFFIRMED.[1]

PIEPER
and GEATHERS, JJ., and CURETON, A.J., concur.

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