State v. Tilmon

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.

Anthony Tilmon, Appellant.

Appellate Case No. 2011-187427

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

Unpublished Opinion No. 2013-UP-275
Heard May 15, 2013 – Filed June 26, 2013

AFFIRMED

Appellate Defender LaNelle Cantey DuRant, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia, for Respondent.

PER CURIAM: Anthony Tilmon appeals his convictions for three counts of lewd
act on a minor and three counts of criminal sexual conduct (CSC) with a minor,
arguing the trial court erred in: (1) refusing to admit evidence of his good character
towards children; (2) denying his motion for a mistrial; and (3) denying his motion
to suppress a videotape of Victim's forensic interview. We affirm.

FACTS/PROCEDURAL HISTORY

During the Spring of 2009, Tilmon's mother occasionally babysat Victim at the
Tilmons' home in Aiken, South Carolina. Later that year, Victim and her mother
moved to Florida. Once in Florida, Victim disclosed to her mother that Tilmon
had sexually assaulted her three different times while she was staying at the
Tilmons' home.

Later, during an interview with investigators at the Aiken County Sheriff's Office,
Tilmon confessed to sexually assaulting Victim. The majority of Tilmon's
confession was videotaped. Tilmon also completed a written statement detailing
each of the three incidents of abuse.

Victim, who was nine-years-old at the time of trial, testified in detail regarding
each incident of abuse. The State also presented the testimony of Detective Carol
Dansky, who testified that she conducted a forensic interview of Victim at the
Broward Sheriff's Office in Fort Lauderdale, Florida in November 2009. Over
defense counsel's objection, the trial court admitted a videotape recording of the
forensic interview and played it for the jury. Subsequently, the defense offered the
testimony of several character witnesses. Additionally, Tilmon testified that he did
not sexually assault Victim and that he confessed because he felt threatened by the
investigating officers.

The jury returned a verdict of guilty on all six counts as indicted. The trial judge
sentenced Tilmon to thirty-five-years' imprisonment on each count of CSC with a
minor and to fifteen years on each count of lewd act with a minor. All sentences
were to run concurrently. This appeal followed.

LAW/ANALYSIS

Tilmon argues the trial court erred in refusing to allow two of his character
witnesses to testify concerning his good character towards children. In this case,
Tilmon did not proffer the testimony of either of his witnesses, nor did he explain
what the testimony of his witnesses would have been. Therefore, we find this
argument is not preserved for our review. See State v. Santiago, 370 S.C. 153,
163, 634 S.E.2d 23, 29 (Ct. App. 2006) (holding "a proffer of testimony is required
to preserve the issue of whether testimony was properly excluded by the trial
judge, and an appellate court will not consider error alleged in the exclusion of
testimony unless the record on appeal shows fairly what the excluded testimony
would have been").

Tilmon next argues the trial court erred in refusing to grant a mistrial because of
Victim's conduct during defense counsel's closing argument. The State contends
that this issue is not preserved because defense counsel did not contemporaneously
object when the alleged conduct occurred. Even if this issue was preserved, the
trial judge did not abuse his discretion in refusing to grant a mistrial. See State v.
Anderson, 322 S.C. 89, 91-92, 470 S.E.2d 103, 105 (1996) ("The decision whether
to grant a mistrial because of a witness's outburst rests within the sound discretion
of the trial judge and will not be reversed absent an abuse of discretion or manifest
prejudice to the complaining party."). Directly after closing argument, the trial
judge had the jury take a break and sua sponte sought to determine whether Victim
needed to leave the courtroom because of her emotions. This inquiry led to
Victim's mother removing Victim from the courtroom before her behavior could
escalate to the point of an outburst. Thus, the trial judge took sufficient curative
measures to ensure a mistrial was unnecessary. See id. at 93, 470 S.E.2d at 105
(finding no error in denial of mistrial motion when the trial judge dismissed the
jury and called a recess as soon as the outburst occurred in order to give the
witness time to calm down). Moreover, in denying the motion for a mistrial, the
trial judge stated that he had observed Victim throughout closing argument and he
did not hear her cry aloud. He further noted that he watched the jury closely
during closing argument and the jury did not appear distracted in any way.
Because the trial judge was in the best position to assess the degree to which the
jury may have been prejudiced by Victim's conduct, we find the trial judge did not
abuse his discretion in denying Tilmon's motion for a mistrial. See id. at 93, 470
S.E.2d at 105-06 (finding the trial judge did not abuse his discretion in denying
appellant's motion for a mistrial because "the trial judge was in the best position to
assess the degree to which the jury may have been prejudiced by the [witness's]
outburst").

Last, Tilmon argues that the trial court's denial of his motion to suppress a
videotape of Victim's forensic interview violated his right to confrontation.
Specifically, he contends that the application of South Carolina Code subsection
17-23-175(A) (Supp. 2012), which permits the admission of out-of-court
statements from child sexual abuse victims when certain conditions are met,
violated the Sixth Amendment's Confrontation Clause because (1) Victim was not
available for cross-examination during the taping of the interview and (2) the
statements in the videotape constituted prior consistent statements that improperly
bolstered Victim's testimony.1

The Sixth Amendment's Confrontation Clause guarantees "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541
U.S. 36, 53-54 (2004), the United States Supreme Court held that testimonial
hearsay statements are not admissible under the Confrontation Clause unless the
declarant is unavailable to testify at trial and the accused had a prior opportunity to
cross-examine the declarant. "However, the Confrontation Clause places no
constraints at all on the use of the declarant's prior testimonial statements when the
declarant appears for cross-examination at trial." State v. Hill, 394 S.C. 280, 291,
715 S.E.2d 368, 374-75 (Ct. App. 2011) (citing State v. Stokes, 381 S.C. 390, 401,
673 S.E.2d 434, 439 (2009)). "The Confrontation Clause 'does not bar admission
of a statement so long as the declarant is present at trial to defend or explain it.'"
Stokes, 381 S.C. at 401, 673 S.E.2d at 439 (quoting Crawford, 541 U.S. at 59 n.9).

Tilmon contends that his cross-examination was not effective because he did not
have the opportunity to cross-examine Victim during the forensic interview.
However, "the Confrontation Clause 'guarantees only an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.'" Id. at 401-02, 673 S.E.2d at 439-40
(quoting United States v. Owens, 484 U.S. 554, 559 (1988)). "Indeed the
opponent's opportunity for cross-examination has been deemed the 'main and
essential purpose of confrontation.'" Id. at 402, 673 S.E.2d at 440. Thus, it is the
opportunity to cross-examine that is constitutionally protected." Id.

In this instance, Victim was present at trial and Tilmon had the opportunity to
cross-examine Victim regarding her statements in the videotape while she was on
the stand.2 See Hill, 394 S.C. at 291-92, 715 S.E.2d at 374-75 (holding there is no
Confrontation Clause violation when the declarant appears for cross-examination
at trial). Because Tilmon had the opportunity for effective cross-examination, we
find he was not denied his right to confrontation.

1
At oral argument, Scott conceded that the statutory conditions required for
admission of the videotape were met.
2
Notably, Tilmon's defense counsel extensively cross-examined Victim regarding
her testimony at trial; however, counsel did not cross-examine Victim about the
videotape or her testimony on the videotape.
AFFIRMED.

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