In the Matter of Gerald Barrett ( 2019 )

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 Gerald
Barrett, Jr., Respondent,
v.
The State, Appellant.
Appellate Case No. 2017-000085
Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge
Unpublished Opinion No. 2019-UP-420
Heard October 22, 2019 – Filed December 31, 2019
REVERSED AND REMANDED
Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia, for Appellant.
Appellate Defender David Alexander, of Columbia, for
Respondent.
PER CURIAM: The State appeals the circuit court's order finding the State failed
to establish probable cause Gerald Barrett Jr. qualified as a sexually violent
predator pursuant to section 44-48-30(1) of the South Carolina Code (2018) and
was therefore subject to further evaluation. We reverse and remand pursuant to
Rule 220(b), SCACR, and the following authorities:
1. As to whether the circuit court erred in concluding Barrett's qualifying
conviction, required by section 44-48-30(1)(a), was not ripe based on his pending
appeal: Sloan v. Friends of Hunley, Inc., 393 S.C. 152, 159 n.3, 711 S.E.2d 895,
898 n.3 (2011) (indicating a concession allows the court to end the matter);
Bowaters Carolina Corp. v. Carolina Pipeline Co., 259 S.C. 500, 505, 193 S.E.2d
129, 132 (1972) (holding an appellate court need not pursue an issue conceded
during oral arguments).
2. As to whether the State offered sufficient evidence to establish the threshold
probable cause finding set forth in the statutory scheme: Care & Treatment of
Brown v. State, 372 S.C. 611, 620, 643 S.E.2d 118, 122-23 (Ct. App. 2007) ("In
the context of probable cause to believe someone to be a sexually violent predator,
probable cause requires that the evidence presented would lead a reasonable person
to believe and conscientiously entertain suspicion that the person meets the
definition of a sexually violent predator."); id. at 620, 643 S.E.2d at 123 ("Probable
cause 'does not demand any showing that such a belief be correct or more likely
true than false.'" (quoting Texas v. Brown, 460 U.S. 730, 742 (1983))); id. at 619,
643 S.E.2d at 122 (stating probable cause "does not import absolute certainty");
Care & Treatment of Beaver v. State, 372 S.C. 272, 278, 642 S.E.2d 578, 582
(2007) ("[T]he State is not able to require a mental examination of the offender
until a judge, after a hearing, has found that there is probable cause to believe the
offender is a sexually violent predator. Therefore, the State is generally unable to
produce any mental health information at the probable cause hearing because
probable cause must first be found by a judge at the hearing before such evidence
can be obtained. The State's inability to provide mental health evidence does not
prevent a finding of probable cause."); White v. State, 375 S.C. 1, 9-10, 649 S.E.2d
172, 176-77 (Ct. App. 2007) (holding previous unadjudicated offenses are directly
relevant to a determination of whether probable cause exists to believe someone is
a sexually violent predator); Care & Treatment of Chandler v. State, 382 S.C. 250,
259, 676 S.E.2d 676, 680 (2009) (reversing the circuit court's order that found no
probable cause and concluding the defendant had "developed a pattern of engaging
in inappropriate conduct" that continued "while he was already on probation for
similar conduct" when defendant engaged in sexual conduct with three different
girls aged thirteen to fifteen years old).
REVERSED AND REMANDED.
LOCKEMY, C.J., and KONDUROS and HILL, JJ., concur.