In the Matter of Tracy Fabian

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 Tracy Fabian,
Appellant.

Appellate Case No. 2022-001302

Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge

Unpublished Opinion No. 2024-UP-403
Submitted November 1, 2024 – Filed November 27, 2024

AFFIRMED

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: Tracy Fabian appeals an order of commitment issued by the trial
court after a jury found he was a sexually violent predator (SVP) under the
Sexually Violent Predator Act (SVP Act).1 On appeal, Fabian argues the trial
court erred in allowing an expert to discuss the details of criminal charges that

1
See S.C. Code Ann. §§ 44-48-10 to -170 (2018 & Supp. 2024).
were the subject of an Alford2 plea or dismissed because the testimony was
unreliable hearsay and the danger of unfair prejudice outweighed its probative
value pursuant to Rule 403 of the South Carolina Rules of Evidence. We affirm
pursuant to Rule 220(b), SCACR.

We hold the trial court did not abuse its discretion in admitting the expert's
testimony regarding Fabian's charges resulting in Alford pleas. See In re Manigo,
389 S.C. 96, 106, 697 S.E.2d 629, 633-34 (Ct. App. 2010) ("The admissibility of
an expert's testimony is within the trial judge's sound discretion, whose decision
will not be reversed absent an abuse of discretion."). First, although Fabian denied
the allegations underlying his pleas and therefore contends the testimony was
based on unsubstantiated hearsay, he entered an Alford plea, which is a
constitutional admission of guilt and is treated the same as any other guilty plea for
collateral purposes. See State v. Fraley, 437 S.C. 135, 137, 876 S.E.2d 703, 704
(Ct. App. 2022) ("While Alford affords defendants the right to plead guilty when
they cannot or will not admit their guilt, a guilty plea entered pursuant to Alford
carries the same effect as a 'regular' guilty plea or a guilty verdict."). Second, the
probative value of the testimony was not substantially outweighed by the risk of
unfair prejudice. See Rule 403, SCRE (stating relevant evidence "may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice"). The expert relied on Fabian's previous offenses when diagnosing him
and her testimony was highly probative in establishing his propensity to commit
similar sexual acts in the future. See In re Ettel, 377 S.C. 558, 563, 660 S.E.2d
285, 288 (Ct. App. 2008) (finding the danger of unfair prejudice from testimony
regarding previous offenses in an SVP probable cause hearing did not substantially
outweigh its probative value because the expert relied on them to determine a
pattern of behavior and diagnose the individual with a mental abnormality).
Accordingly, the danger of unfair prejudice from the nature of the offenses did not
outweigh the probative value of the expert's testimony, which went to the central
issues at trial. See § 44-48-30(1) (defining an SVP as a person who: "(a) has been
convicted of a sexually violent offense; and (b) suffers from a mental abnormality
or personality disorder that makes the person likely to engage in acts of sexual
violence if not confined in a secure facility for long-term control, care, and
treatment.").

We hold the trial court also did not abuse its discretion in admitting the expert's
testimony regarding Fabian's dismissed charge. Experts are permitted to consider
both convicted and un-convicted criminal offenses when diagnosing an individual

2
North Carolina v. Alford, 400 U.S. 25 (1970).
with a mental abnormality for the purposes of section 44-48-30(1)(b), and here, it
was necessary for the expert to discuss the offense to explain how she arrived at
her opinion. See White v. State, 375 S.C. 1, 8-9, 649 S.E.2d 172, 175-76 (Ct. App.
2007) (finding the legislature did not intend to limit the word "offense" to charges
resulting in convictions when determining whether an offender is an SVP); Ettel,
377 S.C. at 562, 660 S.E.2d at 287 (explaining an expert witness may consider
"both convictions and offenses not resulting in convictions as long as they are
relevant to the determination of whether a person is a[n] [SVP]").

AFFIRMED. 3

THOMAS, HEWITT, and VINSON, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.