State v. Chavis ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
George L. Chavis, Appellant.
Appellate Case No. 2011-188568
Appeal from Marlboro County
Howard P. King, Circuit Court Judge
Opinion No. 27491
Heard October 2, 2013 – Filed February 4, 2015
AFFIRMED
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Deputy Attorney General David A. Spencer, both of
Columbia, for Respondent.
PLEICONES, J: George Chavis (Appellant) was convicted of multiple crimes
involving unlawful sexual conduct with a minor, Appellant's step-daughter
(Victim). The issues before the Court concern the qualification and testimony of
two child abuse assessment experts. We affirm.
FACTS
Appellant was convicted of one count of criminal sexual conduct with a minor
(CSCM) in the first degree, two counts of CSCM in the second degree, one count
of lewd act upon a child, and one count of contributing to the delinquency of a
minor. Appellant was sentenced to twenty-five years on the CSCM first, twenty
years on each of the CSCM seconds, fifteen years for the lewd act, and three years
for the contributing to the delinquency of a minor with all sentences running
concurrently.
Appellant's convictions arose out of unlawful conduct between Appellant and
Victim that began when Victim was seven years old. The State presented evidence
that Appellant molested Victim, forced her to perform sexual acts on him, and
forced her to watch pornography.
In addition to the assaults of Victim, Victim testified that when Victim's stepsister
(Stepsister) visited, Appellant would have them both perform sexual acts on him.
This testimony was corroborated by Stepsister, who stated that she and Victim
were sexually assaulted by Appellant and gave further detailed accounts of her
own abuse at the hands of Appellant.1
In 2004, Stepsister reported Appellant's sexual abuse of both her and Victim. At
this time, Victim was around ten years old and Stepsister was around fourteen. As
a result of Stepsister's disclosure, Stepsister was taken to the Durant Children's
Center (Durant Center) in Florence, where a forensic interview was performed by
Mrs. Ginger Gist. Stepsister testified that during the interview Stepsister disclosed
that she and Victim had been sexually assaulted by Appellant. In addition to the
forensic interview, a medical exam was performed by Dr. Kathy Saunders who
testified without objection that Stepsister's results were consistent with sexual
activity.
Victim was also taken to the Durant Center in 2004, where a forensic interview
was conducted by Mrs. Debbie Elliot. Victim testified that in 2004 she denied
being sexually abused to Mrs. Elliot and claimed that Stepsister was lying. Victim
was also examined by Dr. Saunders, who testified that the 2004 exam was normal.
1
There is no challenge on appeal to Stepsister's testimony.
Dr. Saunders also testified that a normal exam may be consistent with a history of
sexual abuse. 2
Victim finally told her mother about Appellant's abuse in 2009. Victim was taken
back to the Durant Center, where she was again examined by Dr. Rosa and
underwent a forensic interview performed by Mrs. Robin Griggs. Dr. Rosa testified
that Victim's exam was consistent with being sexually active. The exam also
revealed Victim had chlamydia. At trial, the State presented medical records that
Appellant was taking medicine commonly used to treat chlamydia at this time.
Finally, Victim informed Dr. Rosa that she was sexually active with her boyfriend
at the time.
In addition to Victim and Stepsister, two of Appellant's sisters testified, without
objection, to their own experiences of being sexually assaulted by Appellant. They
described similar experiences to Victim's and Stepsister's claims of being molested
and sexually abused by Appellant in their youth.
In addition to testimonial evidence, photographs were introduced of Victim in only
her underwear and other various stages of undress. Victim and her mother testified
that Appellant took the pictures.
ISSUES
I. Did the circuit court err in qualifying Mrs. Griggs and Mrs. Elliott as
experts in child abuse assessment?
II. If so, was the error harmless?
DISCUSSION
I. Qualification of Mrs. Griggs and Mrs. Elliot
Appellant contends that Mrs. Griggs and Mrs. Elliot should not have been qualified
as expert witnesses in the field of child abuse assessment because there was not a
sufficient showing of reliability or peer review of their work product. We agree as
to Mrs. Elliot. As to Mrs. Griggs, we do not reach the expert issue but find error in
the admission of part of her testimony on separate grounds.
2
This finding was consistent with Victim's testimony that she had not had vaginal
intercourse with Appellant by this time.
The qualification of an expert witness and the admissibility of the expert's
testimony are matters within the trial court's sound discretion. State v. Meyers, 301
S.C. 251, 391 S.E.2d 551 (1990). A trial court's decision to admit or exclude expert
testimony will not be reversed absent a prejudicial abuse of discretion. State v.
Price, 368 S.C. 494, 498, 629 S.E.2d 363, 365 (2006). An abuse of discretion
occurs when the conclusions of the circuit court are either controlled by an error of
law or are based on unsupported factual conclusions. State v. Douglas, 369 S.C.
424, 429-30, 632 S.E.2d 845, 848 (2006).
Both parties argue, and we agree, that State v. White should apply in qualifying
child abuse assessment experts because their testimony is non-scientific. 382 S.C.
265, 676 S.E.2d 684 (2009). Both Mrs. Griggs and Mrs. Elliot were identified as
child abuse assessment experts, they both conducted forensic interviews, and both
testified they used the RATAC3 forensic interviewing technique, which this Court
has identified as non-scientific. State v. Kromah, 401 S.C. 340, 737 S.E.2d 490
(2013) fn. 4 ("The RATAC style of interviewing is not scientific."). Accordingly,
we will analyze the qualification of Mrs. Griggs and Mrs. Elliot under White.
Under White, two threshold determinations must be made. First, the qualifications
of the expert must be sufficient, and second, there must be a determination that the
expert's testimony will be reliable. White at 273, 676 S.E.2d at 688 (citing Rule
702, SCRE).
Appellant does not argue that the qualifications of Mrs. Elliot or Mrs. Griggs are
insufficient. Instead, Appellant's argument focuses on the reliability prong of the
White analysis. Appellant contends that the State failed to demonstrate sufficient
reliability and peer review for Mrs. Griggs and Mrs. Elliot to be qualified as
experts in the field of child abuse assessment. We agree that Mrs. Elliott should not
have been qualified as an expert witness but do not address Mrs. Griggs's
qualifications due to part of her testimony being inadmissible on other grounds.
A. Mrs. Elliott
Appellant contends the circuit court abused its discretion by improperly qualifying
Mrs. Elliot and allowing her to testify concerning a report by Mrs. Gist,4 the
forensic interviewer who interviewed Stepsister in 2004 after Stepsister's initial
3
RATAC stands for Rapport; Anatomy; Touch; Abuse Scenario; and Closure.
4
Mrs. Gist was unavailable for trial.
allegations of abuse by Appellant. The testimony survived a hearsay objection
because the trial court ruled that as an expert, Mrs. Elliot was allowed to rely on
the report under Rule 703 SCRE. Mrs. Elliot testified that in her expert opinion a
disclosure of abuse had been made to Mrs. Gist.5
The State argues that the trial judge did not abuse his discretion in qualifying Mrs.
Elliot as an expert. The State cites to Mrs. Elliot's training, education, knowledge
of RATAC protocol, and evidence of her performing over 5000 interviews. The
State contends that RATAC protocol is peer reviewed and reliable, and therefore
Mrs. Elliot's testimony is reliable. 6 While we agree Mrs. Elliot has extensive
experience and training, we find that there is insufficient evidence demonstrating
Mrs. Elliott's individual reliability.
We agree with Appellant that although Mrs. Elliott was sufficiently trained in
RATAC protocol, and that she used RATAC protocol during her interviews, there
is simply no evidence that her conclusions or impressions taken from these
interviews were accurate. During cross examination, when asked if there was any
way to discern what her error rate was, she responded "no." Her only peer review
involved one other interviewer reviewing her work to ensure she was using
RATAC protocol. When asked what her quality control procedures were, she
responded "I use R[A]TAC protocol every time in the interview room."
There is no formulaic approach for determining the foundational requirements of
qualifications and reliability in non-scientific evidence. Id. at 274, 676 S.E.2d at
688. However, evidence of mere procedural consistency does not ensure reliability
without some evidence demonstrating that the individual expert is able to draw
reliable results from the procedures of which he or she consistently applies. We
find no evidence in this record as to Mrs. Elliott's ability to draw reliable results
from the RATAC procedures she consistently follows, and thus find that the
threshold reliability requirement of Rule 702 is not met. Accordingly, we hold that
5
The exact colloquy regarding this disclosure went as follows:
Q: Okay. And after reviewing that interview, and without going into
anything that was said to Mrs. Gist, in your expert opinion, was a disclosure
made?
A: It was.
6
This Court has recently acknowledged that RATAC is not without its critics. See
Kromah, 401 S.C. at 357, 737 S.E.2d at 499 fn. 5 (2013).
the circuit court abused its discretion in allowing Mrs. Elliot to testify as an expert
regarding the report by Mrs. Gist.
B. Mrs. Griggs
Appellant argues that the circuit court erred in qualifying Mrs. Griggs as an expert
because there was insufficient evidence of her reliability. Additionally, Appellant
contends the circuit court erred when it found Mrs. Griggs qualified as an expert
because this allowed Mrs. Griggs to testify regarding her recommendation that
Victim "not be around [Appellant] for any reason," which improperly bolstered the
credibility of Victim.
Assuming that there was sufficient evidence of reliability presented for Mrs.
Griggs to be qualified as an expert, we find that the circuit court erred in admitting
her testimony regarding her recommendation because it was improper bolstering of
Victim's credibility.
While experts may give an opinion, they are not permitted to offer an opinion as to
the credibility of others. State v. Kromah, supra. "Specifically, it is improper for a
witness to testify as to his or her opinion about the credibility of a child victim in a
sexual abuse matter." Id. at 358-359, 737 S.E.2d at 500.
Mrs. Griggs's recommendation that Appellant not be around Victim for any reason,
can only be interpreted as Mrs. Griggs believing Victim's claim that Appellant
sexually abused her. This type of testimony is improper. See e.g., State v. Jennings,
394 S.C. 473, 480, 716 S.E.2d 91, 94 (2011) (finding error where there was "no
other way to interpret the language used in the reports other than to mean the
forensic interviewer believed the children were being truthful"); Kromah, at 360,
737 S.E.2d at 500 (cautioning forensic interviewers to avoid "any statement that
indirectly vouches for the child's believability"); State v. Dawkins, 297 S.C. 386,
393–94, 377 S.E.2d 298, 302 (1989) (finding admission of therapist's testimony
indicating he believed victim's allegations were genuine was improper). This type
of bolstering, especially when made by a witness imbued with imprimatur of an
expert witness, improperly invades the province of the jury. State v. Wright, 269
S.C. 414, 417, 237 S.E.2d 764, 766 (1977) ("It is axiomatic that the credibility of
the testimony of these witnesses is for the jury."). Accordingly, assuming the
circuit court properly qualified Mrs. Griggs as an expert, we find the court erred in
allowing Mrs. Griggs to testify regarding her recommendation.
II. Harmless Error
While we find the qualification of Mrs. Elliott and the testimony of both Mrs.
Elliot and Mrs. Griggs improper, in light of the substantial evidence of guilt, we
hold that these errors were harmless beyond a reasonable doubt.
An appellate court generally will decline to set aside a conviction due to
insubstantial errors not affecting the result. State v. Black, 400 S.C. 10, 27, 732
S.E.2d 880, 890 (2012). Whether an error is harmless depends on the
circumstances of the particular case. State v. Mitchell, 286 S.C. 572, 573, 336
S.E.2d 150, 151 (1985). No definite rule of law governs this finding; rather, the
materiality and prejudicial character of the error must be determined from its
relationship to the entire case. Id.7
There are two pieces of testimony which Appellant contends warrant reversal.
First, Mrs. Elliott's testimony that Stepsister disclosed abuse to Mrs. Gist in 2004,
and second, Mrs. Griggs's testimony regarding her recommendation that Appellant
not be around Victim for any reason.
Mrs. Elliott's testimony did little if any harm to Appellant. Multiple witnesses
confirmed that Stepsister made a disclosure of sexual abuse in 2004, as did
Stepsister in her testimony. Victim confirmed that Stepsister had made a previous
disclosure. Victim's mother testified that she knew Stepsister had made a
disclosure, and finally, Dr. Saunders testified regarding her medical exam that was
performed as a result of Stepsister's disclosure. Therefore, the jury heard three
independent witnesses referencing Stepsister's disclosure of abuse in 2004, and
testimony of a medical exam that was performed as a result of this disclosure.
7
We disagree with the dissent that the "contributing to the verdict" standard and the
"overwhelming evidence" standard are used interchangeably, and that one is less
stringent than the other. In this case, where there is error in admitting certain
testimony, we find that the error can be deemed harmless because there is other
overwhelming evidence of guilt. However, we readily acknowledge that there are
some errors, particularly errors of law, which cannot be rendered harmless by
overwhelming evidence. See,e.g., State v. Middleton 407 S.C. 312, 755 S.E.2d 432
(2014) (Pleicones J, dissenting) (noting that a failure to charge a lesser included
cannot be rendered harmless by overwhelming evidence). While we appreciate the
discussion by the dissent, as the dissent acknowledges, this issue was not raised by
either party.
Accordingly, any error in admission of Mrs. Griggs's testimony is harmless beyond
a reasonable doubt. State v. Johnson, 298 S.C. 496, 498, 381 S.E.2d 732, 732
(1989) (admission of evidence is harmless where it is merely cumulative of other
evidence).
Mrs. Griggs's recommendation that Appellant not be around Victim improperly
bolstered Victim's credibility. However, all of Appellant's crimes were established
by evidence independent of both Mrs. Griggs and Victim. The determination
whether a bolstering error is harmless depends on whether the case turns on the
credibility of the victim. Compare State v. Jennings, supra (finding improper
bolstering by a forensic interviewer not harmless, where there was no physical
evidence and the case turned on the victims' credibility), with Kromah, supra,
(finding error harmless in light of abundant evidence and distinguishing Jennings
because the case did not turn on the credibility of the victim). We find this case
more akin to Kromah, as there is physical evidence and multiple witnesses who
corroborated the Victim's testimony regarding her abuse at the hands of Appellant.
As to physical evidence corroborating Victim's claims of abuse, first, the State
introduced multiple pictures that were found on the Appellant's computer. These
pictures included the Victim in various stages of undress and provocative
positions. 8 Second, the State presented testimonial and circumstantial evidence
establishing that the Appellant took the photos.9 These pictures not only
corroborate Victim and Stepsister's testimony, but are evidence of lewd act upon a
minor and contributing to the delinquency of a minor.
Additionally, medical evidence supported Victim's claims of sexual abuse by
Appellant. Immediately after Victim made her 2009 disclosure, her medical exam
showed that she had chlamydia, and the State presented medical records showing
Appellant had been taking medications commonly used to treat chlamydia at this
time. This circumstantial evidence corroborated Victim's testimony that Appellant
sexually abused her.
8
Pictures of the Appellant completely nude were also found on the computer,
which is consistent with Victim and Stepsister's testimony that Appellant showed
them pictures of himself naked.
9
The dissent misunderstands our holding. It is not whether the photos prove the
crimes, but rather whether they are independent circumstantial evidence
corroborating Victim's testimony.
In addition to physical evidence, substantial testimonial evidence corroborating
Victim's testimony was presented. Stepsister gave substantially detailed testimony
describing not only her abuse but also describing the times when Stepsister and
Victim were abused together. In addition, she testified to seeing Appellant abuse
the Victim separately.
Finally, two of Appellant's sisters testified. Each gave detailed testimony of similar
instances of abuse by Appellant, which they suffered at a young age. While this did
not directly corroborate Victim's testimony, it supported her claims by
demonstrating Appellant's common scheme of abusing those close to him. Rule
404, SCRE (allowing evidence of other crimes to demonstrate common scheme or
plan). We find the testimony of Mrs. Griggs and Mrs. Elliot harmless beyond a
reasonable doubt.
AFFIRMED.
BEATTY, J., concurs. TOAL, C.J., concurring in part and dissenting in part
in a separate opinion in which KITTREDGE, J., concurs. HEARN, J.,
dissenting in a separate opinion.
CHIEF JUSTICE TOAL: While I concur in the result reached in the majority
opinion, I write separately to state my disagreement with the reasoning contained
in both the majority and dissenting opinions.
1. Expert Qualification
First, the majority finds error in the trial court's admission of Elliott's expert
testimony on the basis that it was unreliable. See State v. White, 382 S.C. 265, 273,
676 S.E.2d 684, 688 (2009) (stating that for non-scientific expert testimony to be
admissible, the qualifications of the expert must be sufficient, and that there must
be a determination that the expert's testimony will be reliable) (citing Rule 702,
SCRE)). I disagree with the majority's reasoning that Elliott should not have been
qualified as an expert because she did not demonstrate the reliability of the
RATAC method of forensic interviewing.
Despite the pall this Court has cast on the RATAC method in past
decisions—especially in Kromah10—RATAC it is still a recognized method of
forensic interviewing in this state, and in my opinion, for good reason, due to the
sensitive nature of the interviewing process involving a child victim of sexual
abuse. However, I read the majority's opinion to imply that the RATAC method
itself is no longer reliable.11
If the majority's goal is not to discredit the RATAC method entirely, then I
fail to see how Elliott's testimony was unreliable. She testified that she had
performed over 5,000 forensic interviews using the method, and she also testified
to her specific training, education, and knowledge of RATAC. Cf. White, 265 S.C.
at 274, 676 S.E.2d at 688 (stating there is no "one-size-fits-all" approach for
determining the foundational requirements of qualification and reliability in non-
scientific evidence).
10
State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013).
11
In fact, trial courts across the country routinely qualify experts who use the
RATAC method. Not only did this Court acknowledge this fact in Kromah, but we
also stated that RATAC was a useful tool in interviewing child victims of sexual
abuse. See Kromah, 401 S.C. at 357 n.5, 737 S.E.2d at 499 n.5.
Regardless, I ultimately agree with the majority that any error was harmless
beyond a reasonable doubt for the reasons stated by the majority.12
2. Improper Bolstering
Next, with respect to the actual testimony of both Elliott and Griggs, it is my
opinion that both the majority and the dissent wrongly conclude that the testimony
improperly bolstered the victim's credibility.
Without a doubt, our precedents stand for the proposition that an expert in
child abuse assessment may not bolster the child victim's veracity or credibility, the
idea being that, even if instructed not to, the jury might place more credence in the
expert's opinion, thereby invading the jury's fact-finding role. While I respect the
import of our previous holdings, as I alluded to previously, I am concerned that the
Court has gone too far in discrediting forensic interviewers in these child sex abuse
cases, and now finds error whenever a forensic interviewer testifies. In my
opinion, forensic interviewing generally, and the RATAC method specifically,
have an important role to play in these cases, not just because of the sensitive
subject matter and relative immaturity of the victims, but because children often
communicate differently than adults. To me, this testimony has evidentiary value.
With respect to Elliott, the dissent finds that the trial court erred in
permitting Elliott to testify that Stepsister made a disclosure of abuse to Gist in
12
At this point, I feel compelled to comment on the dissent's criticism of this
Court's so-called "inconsistent" application of the doctrine of harmless error. I see
no error in the characterization of the standard across our case law as applied to the
facts of each case. Whether characterized as an "overwhelming evidence" standard
or a "contribute to the verdict" standard, the ultimate consequence of the analyses
under each standard is the same in that courts are trying to parse whether or not a
criminal defendant received a trial that comports with notions of fundamental
fairness. Criminal defendants are entitled to a fair trial, but not a perfect trial.
Thus, where an error does not impact the fairness of the trial, it is harmless. Both
inquiries guide this Court in assessing the question of fairness, and therefore, they
are not inconsistent as the dissent suggests.
2004.13 With respect to Mrs. Griggs, both the majority and the dissent find that her
testimony impermissibly bolstered the victim's credibility because she testified that
she recommended that Victim "not be around [Appellant] for any reason."
In my opinion, neither of these experts impermissibly bolstered Victim's
credibility or impermissibly vouched for her veracity. See Kromah, 401 S.C. at
359, 737 S.E.2d at 500 (where the expert testified to a "compelling" finding of
child abuse), State v. Jennings, 394 S.C. 473, 480, 716 S.E.2d 91, 94 (2011)
(same). Elliott's testimony simply relayed what Stepsister disclosed to her; and
Griggs's testimony merely restated her recommendation that Appellant stay away
from Victim. The important distinction between this case and cases such as
Kromah and Jennings is that the experts did not state whether or not they believed
Victim. Therefore, I cannot see how this expert testimony improperly bolstered
Victim's testimony either directly or indirectly.
Accordingly, for the foregoing reasons, I agree that the trial court should be
affirmed.
KITTREDGE, J., concurs.
13
I note that the majority does not reach the question of the admissibility of
Elliott's testimony because it finds that her testimony was unreliable. While the
dissent agrees with majority that Elliott should not have been qualified as an
expert, the dissent would also find that Elliott improperly bolstered Victim's
testimony.
JUSTICE HEARN: I concur with that portion of the majority opinion holding the
trial court erred in admitting the expert testimony of Elliott and Griggs. However,
I believe the errors in this case were not harmless and I would reverse.
Accordingly, I dissent.
Harmless error exists to enforce criminal procedural safeguards while
ensuring that inconsequential, technical errors do not result in a new trial. See
Chapman v. California, 386 U.S. 18, 22 (1967). Error is harmless when it could
not reasonably have affected the result of the trial.14 State v. Mitchell, 286 S.C.
572, 573, 336 S.E.2d 150, 151 (1985). Whether an error is harmless depends on
the facts of the particular case. Id.
14
Although not raised by the parties or the majority, I would note this Court has
shifted frequently in its approach to harmless error review between the contribute
to the verdict standard, which focuses on an error's impact on the jury, and the
overwhelming evidence standard, which focuses on the weight of the evidence in
general. Compare State v. Tapp, 398 S.C. 376, 389, 728 S.E.2d 468, 475 (2012)
("The key factor for determining whether a trial error constitutes reversible error is
'whether it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.'"(quoting State v. Charping, 313 S.C. 147, 157,
437 S.E.2d 88, 94 (1993))), with State v. Bryant, 369 S.C. 511, 518, 633 S.E.2d
152, 156 (2006) ("[A]n insubstantial error not affecting the result of the trial is
harmless where a defendant's guilt has been conclusively proven by competent
evidence such that no other rational conclusion can be reached."); see also Lowry
v. State, 376 S.C. 499, 510, 657 S.E.2d 760, 766 (2008) (applying a hybrid of the
two standards); State v. Fletcher, 379 S.C. 17, 25, 664 S.E.2d 480, 484 (2008)
(stating both standards together as the harmless error standard). Most other courts,
including the United States Supreme Court, struggle with similar inconsistency.
Compare Harrington v. California, 395 U.S. 250, 254 (1969) (applying the
overwhelming evidence standard), with Chapman, 386 U.S. at 24 (applying the
contribute to the verdict standard); see Roger A. Fairfax, Jr., Harmless
Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L.
Rev. 2027, 2037 (2008) ("Since [Harrington], the Court has shifted between the
two standards—harmlessness based upon whether the error contributed to the
verdict and harmlessness based upon whether the residual evidence was
overwhelming—in applying the harmless error rule."). However, even under the
less stringent overwhelming evidence standard used by the majority, the errors in
this case were not harmless beyond a reasonable doubt.
As the majority holds, the trial court erred in qualifying Elliott as an expert
witness, and furthermore, it erred in allowing Elliott to testify that Stepsister made
a disclosure of abuse to Gist in 2004.15 The majority finds Elliott's testimony "did
little if any harm" because other witnesses independently confirmed Stepsister's
disclosure. Respectfully, this finding is conclusory. None of the three witnesses
identified by the majority—Victim, Victim's mother, and Dr. Saunders—were
qualified as expert witnesses in this case, and thus none were in an equal position
to influence the jury. See State v. Kromah, 401 S.C. 340, 357, 737 S.E.2d 490, 499
(2013) ("[A]lthough an expert's testimony theoretically is to be given no more
weight by a jury than any other witness, it is an inescapable fact that jurors can
have a tendency to attach more significance to the testimony of experts."). By
ignoring Elliott's impact as an expert witness, the majority undermines its own
conclusion as to the impropriety of her testimony, and overlooks the broader
importance of Stepsister's credibility in the case against Chavis.
Additionally, the trial court erred in permitting Griggs to testify as an expert
that she recommended Victim not be around Chavis for any reason. As the
majority points out, Griggs' testimony was improper because the only logical
inference to be drawn was that she believed Victim was telling the truth about
being abused by Chavis. See State v. Jennings, 394 S.C. 473, 480, 716 S.E.2d 91,
94 (2011) ("For an expert to comment on the veracity of a child's accusations of
sexual abuse is improper."); State v. McKerley, 397 S.C. 461, 464, 725 S.E.2d 139,
141 (Ct. App. 2012) ("[W]itnesses are generally not allowed to testify whether
another witness is telling the truth.").
The majority minimizes the possible effect of this improper bolstering by
asserting that Chavis's crimes "were established by evidence independent of both
Mrs. Griggs and Victim." However, the majority cites only to photographs found
on Chavis's computer, medical evidence that Victim had chlamydia coupled with
evidence that Chavis was taking medications used to treat chlamydia, and
testimonial evidence of other witnesses in the case. I cannot agree this evidence
15
The concurrence misapprehends this holding by suggesting it is distinct from
that of the majority. As noted, I fully concur in the majority's conclusion it was
error for the trial court to allow Elliot to testify about Gist's report because it was
error for Elliot to be qualified as an expert in the first place. My disagreement with
the majority lies only in its harmless error analysis.
provides overwhelming proof of guilt taken independently of the errors in this
case.
As to the photographs found on Chavis's computer, it is true that some show
Victim and her mother in their underwear. However, the photographs do not
display any nudity or sexual conduct. Furthermore, the only evidence that Chavis
took the pictures or even knew of their existence was testimony from the Victim,
whose credibility had been improperly bolstered by the admission of Griggs'
testimony, and Victim's mother.
As to Victim's chlamydia, she admitted having sex with her boyfriend prior
to being diagnosed, making it possible Victim could have contracted chlamydia
through that sexual conduct. The only evidence tying Victim's chlamydia to
Chavis was testimony by a police officer with no medical training that Chavis was
taking antibiotics commonly used to treat chlamydia, and had a number of urinary
tract infections consistent with chlamydia. However, the officer could not say with
any degree of certainty that Chavis actually had chlamydia. Additionally, Chavis
introduced evidence his antibiotics are prescribed for a wide range of illnesses in
addition to chlamydia.
Finally, the majority relies on testimony from Stepsister, Chavis's two
sisters, and Victim's mother. As to Stepsister's testimony, the majority cannot have
it both ways; if her testimony is merely cumulative to hold harmless Elliott's
improper testimony, it cannot also be central to overcome Griggs' testimony.
Stepsister's credibility was improperly bolstered by Elliott, as discussed above, and
thus her testimony should not be the primary piece of evidence that shows the jury
would have reached the same result had the errors not occurred. As to the
testimony of Chavis's sisters, each stated they were sexually abused by Chavis as
children. Even accepting their testimony as true, the fact that Chavis abused his
sisters over thirty years ago is weak circumstantial evidence—at best—that he
abused Victim.16 In regards to Victim's mother's testimony, it is noteworthy that
she never witnessed nor testified to any sexual conduct between Chavis and
Victim. Although she testified about behavior that may rise to the level of
contributing to the delinquency of a minor (for example she testified Chavis had
16
Although Chavis did not object to this evidence, had he, its admissibility would
be in serious doubt. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action
in conformity therewith.").
Victim in the shower assisting him with bathing while Victim was not wearing a
bra), this is not the crime for which the majority finds overwhelming evidence of
guilt. 17
Viewed as a whole, the errors in this case were not harmless because they
reasonably could have affected the end result of the trial. In my view, the
majority's opinion—which allows it to sit as a second jury in the case and weigh
the evidence against Chavis—employs a dangerously broad harmless error analysis
to sanitize serious errors by the trial court.
Therefore, because I believe the errors in this case were not harmless, I would
reverse and remand for a new trial.
17
The majority's analysis also overlooks the fact that Chavis elicited evidence in
support of his theory that the group of Victim, mother, and sisters was falsely
accusing him in order to gain ownership of his house and surrounding property.