In the Matter of the Care and Treatment of William Ralph Wilson, III

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

In the Matter of the Care and Treatment of William
Ralph Wilson, III, Appellant.

Appellate Case No. 2018-001843

Appeal From Lexington County
Walton J. McLeod, IV, Circuit Court Judge

Unpublished Opinion No. 2022-UP-087
Heard December 6, 2021 – Filed March 2, 2022

REVERSED AND REMANDED

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

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia, for Respondent.

PER CURIAM: The State brought this action under the Sexually Violent Predator
Act, S.C. Code Ann. §§ 44-48-10 to -170 (2018) (SVP Act), for a determination that
Appellant William Ralph Wilson, III is a sexually violent predator in need of
involuntary civil commitment in a secure facility for long-term control, care, and
treatment. A jury found that Appellant is a sexually violent predator, and the circuit
court ordered Appellant's commitment to the South Carolina Department of Mental
Health. Appellant challenges the commitment order on the ground that the circuit
court abused its discretion by admitting hearsay evidence of alleged sexual
misconduct that was not the subject of a conviction, in violation of Rule 403, SCRE.1
During her testimony, the State's expert, Dr. Donna Maddox, relayed to the jury
allegations of sexual misconduct set forth in written police charges, incident reports,
and victim and witness statements. Appellant argues that the probative value of this
evidence was substantially outweighed by the danger of unfair prejudice to
Appellant. We reverse and remand.

Initially, we acknowledge that our current case law allows the consideration
of unconvicted offenses in determining whether an offender is a sexually violent
predator (SVP). Care & Treatment of Ettel, 377 S.C. 558, 562, 660 S.E.2d 285, 287
(Ct. App. 2008); White v. State, 375 S.C. 1, 6–9, 649 S.E.2d 172, 174–76 (Ct. App.
2007). Nonetheless, the instant case presents the question of how these unconvicted
offenses may be proven in a jury trial. Unlike the appellant in Ettel, Appellant in the
present case did not admit to the unconvicted offenses.2 Further, in White, the State
attempted to introduce the challenged evidence during a probable cause hearing
before a judge rather than during a jury trial.3 Moreover, in the case on which the
White court relied, Matter of Hay, 953 P.2d 666, 677 (Kan. 1998),4 the evidence of
uncharged crimes consisted of victim testimony and other witness testimony.5

In contrast, the present case involves allegations in written police charges,
incident reports, and victim and witness statements that were presented to a jury with
the imprimatur of an expert witness. Pursuant to Rule 403, "relevant evidence may
be excluded if the danger of unfair prejudice substantially outweighs its probative
value." Ettel, 377 S.C. at 561, 660 S.E.2d at 287 (citing Rule 403, SCRE).
"Evidence is unfairly prejudicial if it has an undue tendency to suggest a decision on
an improper basis . . . ." Matter of Campbell, 427 S.C. 183, 193, 830 S.E.2d 14, 19
(2019) (quoting State v. Wilson, 345 S.C. 1, 7, 545 S.E.2d 827, 830 (2001)). "When
juxtaposing the prejudicial effect against the probative value, the determination must

1
Rule 403 states, "Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
2
377 S.C. at 560, 660 S.E.2d at 286.
3
375 S.C. at 5, 649 S.E.2d at 174.
4
The White court relied on a similar interpretation of Kansas's Sexually Violent
Predator Act, on which South Carolina's SVP Act is based. 375 S.C. at 9, 649 S.E.2d
at 176.
5
953 P.2d at 672.
be based on the entire record and will turn on the facts of each case." State v.
Huckabee, 419 S.C. 414, 423, 798 S.E.2d 584, 589 (Ct. App. 2017) (quoting State
v. Lyles, 379 S.C. 328, 338, 665 S.E.2d 201, 206 (Ct. App. 2008)). Further, only
exceptional circumstances justify reversing the circuit court's decision on this
ground. Id. at 423, 798 S.E.2d at 589. We conclude this case presents exceptional
circumstances.

Here, the State asserts the challenged testimony was not prohibited hearsay
because it was not offered for the truth of the matter asserted. See Rule 801(c),
SCRE (defining "Hearsay" as "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted"); Rule 802, SCRE (prohibiting the admission of hearsay into
evidence except as otherwise provided by the South Carolina Rules of Evidence or
by other rules prescribed by our supreme court or by statute). The State maintains
it offered the challenged testimony for the purposes of (1) showing the jury that Dr.
Maddox considered a pattern of behavior in completing her risk assessment and (2)
allowing the jury to evaluate her opinion.6 However, the challenged testimony can
be probative of the asserted pattern of behavior and the value of Dr. Maddox's
opinion only if the jury considers the challenged testimony to be true, and the State
has not shown that this testimony falls within an established exception to Rule 802.
See id.; see also Rule 803, SCRE (listing exceptions); Rule 804, SCRE (listing
exceptions); cf. State v. Floyd Y., 2 N.E.3d 204, 209 (N.Y. Ct. App. 2013), Smith, J.
(concurring) ("[I]n this case, . . . the jury could not have used the hearsay statements
to evaluate the expert's testimony without first deciding whether those statements
were true or false; the hearsay accusations of sexual misconduct by [the respondent]
could bolster the experts' opinions only if the jury believed them to be true. The
probative value of the statements thus is inseparable from, and cannot outweigh,
their prejudicial effect, and the statements should not have been admitted."
(emphasis added)).

As to the danger of unfair prejudice, the State argues that the challenged
testimony was only one of the bases for Appellant's diagnosis.7 However, even if

6
The State emphasized the alleged pattern of behavior to the jury in its closing
argument.
7
The State lists these factors on page 9 of its brief. However, the first listed factor,
"Appellant's decision not to participate in sex offender treatment offered to him
while he was incarcerated," mischaracterizes Dr. Maddox's testimony as she stated
merely her belief that the Department of Corrections offered sex offender treatment
and due to a misunderstanding, Appellant did not receive this treatment. Appellant
we accept this argument, Dr. Maddox's testimony relaying the contents of the
incident reports and victim statements in disturbingly graphic detail had an undue
tendency to suggest a verdict on an improper basis, namely assuming the truth of
these out-of-court statements. The suggestive nature of the testimony was
compounded by Dr. Maddox's testimony that she relied on these out-of-court
allegations of sexual misconduct in completing her risk assessment and by the State's
closing argument to the jury emphasizing the alleged pattern of behavior and
suggesting the truth of these out-of-court statements: "[T]hese crimes happened
back in 2009 or earlier." (Emphasis added). Cf. Lawrence v. Commonwealth, 689
S.E.2d 748, 752 (Va. 2010) (holding that the error in admitting hearsay evidence
regarding the respondent's alleged unconvicted sexual misconduct was not harmless,
given the nature and extent of the testimony "and the fact that, in rendering her
opinion, [the state's expert] indicated to the jury that she assumed those allegations
to be true"); id. ("[I]t cannot be found with assurance that the evidence concerning
the details of unadjudicated allegations of sexual misconduct did not influence the
jury or that it had only slight effect."). Although experts may be entitled to rely on
certain types of hearsay in forming an opinion pursuant to Rule 703, SCRE,8 the rule
does not authorize the automatic admission of the hearsay itself into evidence.

We recognize that this court has previously relied on Rule 703 in affirming
the circuit court's admission of hearsay testimony from a forensic psychiatrist who

testified that he was not offered the treatment and he would have participated had it
been offered. Notably, the jury seemed unconvinced that the treatment was offered
to Appellant as they submitted a question to the circuit court asking if sex offender
courses were available specifically at Evans Correctional Institute, where Appellant
served his sentence.

Further, the second listed factor, Appellant's need for treatment, and the fifth
listed factor, grooming, are not independent of Dr. Maddox's consideration of the
alleged unconvicted offenses. Dr. Maddox testified that she considered the number
of accusations of unconvicted offenses to indicate the amount of treatment needed,
and the information about grooming behaviors also came from victim and witness
statements concerning unconvicted offenses.
8
Rule 703 states, "The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the expert at
or before the hearing. If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the facts or data need not
be admissible in evidence." We express no opinion on whether Dr. Maddox was in
fact entitled to rely on the challenged evidence in this case.
evaluated a respondent in an SVP action. See In re Manigo, 389 S.C. 96, 106, 697
S.E.2d 629, 634 (Ct. App. 2010). In Manigo, the psychiatrist recounted to the jury
that she learned from the respondent's treatment provider that the respondent did not
tell the provider about his prior sex offenses. Id. at 105–06, 697 S.E.2d at 633. The
court concluded that the admission of this testimony was not reversible because the
psychiatrist testified that she relied on information she received from the treatment
provider to form the basis of her opinion that the respondent was an SVP. Id. at 106,
697 S.E.2d at 634. The court stated that an expert "may testify as to matters of
hearsay for the purpose of showing what information he or she relied on in giving
an opinion of value." 389 S.C. at 106, 697 S.E.2d at 634 (citing Hundley ex rel.
Hundley v. Rite Aid of S.C., Inc., 339 S.C. 285, 295, 529 S.E.2d 45, 50 (Ct. App.
2000)).9

However, this court's more recent opinion in Matter of Bilton places limits on
the admission of hearsay evidence through an expert in an SVP proceeding,
expressing the concern that "allowing an expert to disclose hearsay to the jury has
the potential to make that expert a 'conduit for hearsay.'" 432 S.C. 157, 164, 851
S.E.2d 442, 445 (Ct. App. 2020) (quoting Floyd Y., 2 N.E.3d at 209). The Bilton
court concluded that the admission of testimony from the State's expert, a forensic
psychologist, allowed the expert to act as a conduit for another psychologist's
scientific analysis of a test he administered to determine the respondent's sexual
attractions. Id. at 166–67, 851 S.E.2d at 446. The court distinguished the case before
it from Manigo: "The present case poses the different question of whether due
process constrains the extent to which an expert may offer hearsay for the purpose
of explaining the expert's opinion." Id. at 166 (emphasis added).

We express no opinion on the extent to which experts in other SVP cases may
relay hearsay statements to the jury. We simply conclude that in the case before us,
any possible probative value the challenged testimony possessed depended on the
jury's acceptance of these sexual misconduct allegations as true. Therefore, their
probative value was overwhelmed by the danger that the jury would base their
verdict on inadmissible hearsay.10 See Rule 801(c) (defining "Hearsay" as "a

9
The opinion on which Manigo relied, Hundley, involved an expert's opinion as to
the economic damages sustained by the plaintiffs in a personal injury case. 339 S.C.
at 295, 529 S.E.2d at 51.
10
We note that several jurisdictions have either limited or outright prohibited the
admission of hearsay through an expert in SVP proceedings. See In re Det. of
Stenzel, 827 N.W.2d 690, 710 (Iowa 2013) (holding that it was improper for an
expert to testify in an SVP proceeding about the existence of a dropped criminal
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted."); Rule 802,
SCRE (prohibiting the admission of hearsay into evidence except as otherwise
provided by the South Carolina Rules of Evidence or by other rules prescribed by
our supreme court or by statute). In other words, presenting the jury with the graphic
contents of the victim and witness statements, police charges, and incident reports
unfairly prejudiced Appellant, and this unfairness substantially outweighed the
probative value of the evidence. See Huckabee, 419 S.C. at 423, 798 S.E.2d at 589
("When juxtaposing the prejudicial effect against the probative value, the

charge); In re Interest of A.M., Jr., 797 N.W.2d 233, 262 (Neb. 2011) (holding that
the Mental Health Board erred in allowing experts to repeat hearsay within
witnesses' statements and the presentence investigation on which they relied in
forming their respective opinions); id. at 261 (holding that before concluding that an
expert's opinion based on hearsay is reliable, the Mental Health Board must find
"special indicia of reliability" in those hearsay statements to satisfy due process);
State v. Kerry K., 67 N.Y.S.3d 227, 238 (N.Y. App. Div. 2017) ("The admissibility
of hearsay evidence regarding criminal charges . . . that result in neither acquittal nor
conviction 'presents a close question to be resolved by the trial court. [D]ocumentary
evidence supporting the charges may "provide[ ] sufficient reliability [that] weigh in
favor of admission" of the hearsay, but due process concerns remain in the absence
of "conclusive" proof of guilt. Accordingly, it is incumbent upon the trial court to
closely scrutinize the evidence supporting the charges and ensure that the allegations
are "substantially more probative than prejudicial" before allowing the hearsay to be
admitted.'" (alterations in original) (citations omitted) (quoting Matter of State of
New York v. John S., 991 N.Y.S.2d 532 (N.Y. 2014))); Commonwealth v. Wynn, 671
S.E.2d 137, 142 (Va. 2009) (holding that the circuit court properly refused to allow
an expert to testify about the details of the respondent's alleged unconvicted sexual
misconduct because "[e]ven though [the expert] relied on those allegations in
formulating his opinions, the information came from sources unavailable for cross-
examination" and "[t]he evidence clearly fell within the realm of hearsay and was,
therefore, inadmissible"); see also Walker v. Super. Ct., 494 P.3d 2, 22 (Cal. 2021)
(holding that the admission of hearsay descriptions regarding alleged unconvicted
sexually violent offenses "prejudicially affected [the respondent's] ability to
challenge the basis of the state's petition [to commit the respondent as a sexually
violent predator] and the sufficiency of the evidence to proceed to trial" because the
evidence was inflammatory and without its admission, "the trial court would have
lacked critical evidence to establish the diagnosis and reoffense elements" of its
probable cause determination).
determination must be based on the entire record and will turn on the facts of each
case." (quoting Lyles, 379 S.C. at 338, 665 S.E.2d at 206)). Therefore, the
challenged testimony should have been excluded pursuant to Rule 403.

CONCLUSION

We reverse the circuit court's order and remand for a new trial.

REVERSED AND REMANDED.

THOMAS and GEATHERS, JJ., and HUFF, A.J., concur.