State v. Taylor ( 2015 )

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.
Ronasha Taylor, Appellant.
Appellate Case No. 2012-213228
Appeal From Spartanburg County
Lee S. Alford, Circuit Court Judge
Unpublished Opinion No. 2015-UP-173
Heard February 11, 2015 – Filed April 1, 2015
REVERSED AND REMANDED
Andrew Robert de Holl, of Womble Carlyle Sandridge &
Rice, LLP, of Charleston, and Chief Appellate Defender
Robert Michael Dudek, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Assistant
Attorney General Christina Catoe Bigelow, Assistant
Attorney General Kelly W. Hall, and Assistant Attorney
General Bethany Bedenbaugh Miles, all of Columbia, for
Respondent.
PER CURIAM: Ronasha Taylor appeals her conviction of six counts of lewd act
on a minor, involving six child victims. Taylor asserts the trial court erred in (1)
allowing two forensic interviewers, McMillan and Weber, to give impermissible
vouching testimony as expert witnesses; (2) allowing two forensic interviewers to
give testimony that impermissibly vouched for the credibility of the six children;
(3) admitting the forensic interviews of four of the children because they did not
have particularized guarantees of trustworthiness; and (4) allowing the testimony
of one of the children by closed circuit television because the trial court failed to
make the requisite findings for the procedure and there was insufficient evidence
the procedure was necessary. We reverse and remand for a new trial.
1. We find the trial court erred in admitting the testimony of the forensic
assessors,1 who were erroneously qualified as experts. "The assessment of witness
credibility is within the exclusive province of the jury." State v. McKerley, 397
S.C. 461, 464, 725 S.E.2d 139, 141 (Ct. App. 2012). "Therefore, witnesses are
generally not allowed to testify whether another witness is telling the truth." Id."Similarly, witnesses may not improperly bolster the testimony of other witnesses."
Id. Additionally, though experts are allowed to give an opinion, they are not
permitted to offer an opinion regarding the credibility of others, and when a
witness who lends credibility to the victim's allegations is qualified as an expert,
the impermissible harm is compounded. State v. Kromah, 401 S.C. 340, 358, 737
S.E.2d 490, 499 (2013). "For an expert to comment on the veracity of a child's
accusations of sexual abuse is improper." State v. Jennings, 394 S.C. 473, 480,
716 S.E.2d 91, 94 (2011).
1
Although it appears by its briefed argument that the State attempts to draw some
distinction between qualification as an expert "forensic interviewer" and
qualification as an expert in the area of "child abuse assessment," the testimony of
McMillan and Weber belies this argument. During voir dire, when asked the
difference between a forensic assessment and a forensic interview, McMillan
clarified a forensic assessment or evaluation refers to the interviews spread out
over time, while a forensic interview is "that one time session or that one time
interview." Then, during direct examination following the court's qualification of
her as an expert, McMillan testified a forensic interview is "a one-time face-to-face
interview" while a forensic evaluation is "two or more interviews or two or more
sessions to . . . complete a full interview." Additionally, Weber testified she was
involved in the field of "child abuse assessment" as "a forensic evaluator."
Accordingly, it is a distinction without a difference.
In Kromah, our supreme court addressed the admission of vouching testimony
from a forensic interviewer who had been qualified as an expert witness. The court
first noted that a forensic interviewer is an individual "specially trained to talk to
children when there is a suspicion of abuse or neglect," that "[t]he job of the
interviewer is not to provide therapy, but to collect facts," and "[i]t has been said
that a forensic interviewer's purpose is to prepare for trial." 401 S.C. at 357, 737
S.E.2d at 499. There, the court extensively addressed the matter of the impropriety
of qualifying a forensic interviewer as an expert, stating in part as follows:
In considering the ongoing issues developing from [the
use of forensic interviewers] at trial, we state today that
we can envision no circumstance where their
qualification as an expert at trial would be appropriate.
Forensic interviewers might be useful as a tool to aid law
enforcement officers in their initial investigative process,
but this does not make their work appropriate for use in
the courtroom. The rules of evidence do not allow
witnesses to vouch for or offer opinions on the credibility
of others, and the work of a forensic interviewer, by its
very nature, seeks to ascertain whether abuse occurred at
all, i.e., whether the victim is telling the truth, and to
identify the source of the abuse.
Id. at 357 n.5, 737 S.E.2d at 499 n.5. The court further stated, "[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." Id. at 357, 737 S.E.2d at 499. "The
label of expert should be jealously guarded by the court and never loosely bandied
about." Id. Additionally, Kromah specifically cautioned a forensic interviewer
should avoid making certain statements at trial, including any statement that the
child was told to be truthful, any statement that indirectly vouches for a child's
believability, any statement indicating to the jury that the forensic interviewer
believes the child's allegations, or any statement that gives an opinion that the
child's behavior indicates the child was telling the truth. Id. at 360, 737 S.E.2d at
500.
At trial, McMillan and Weber gave the following testimony that violates the
parameters set forth in Kromah: Weber testified that in order to safeguard against
third-party influence with Child 4, she "let[] him know that he can correct [her] and
that it's important to tell the truth"; McMillan testified Child 1, Child 2 and Child
3, and Weber testified Child 4, Child 5 and Child 6, gave information that was
verified by or consistent with what their parents had provided; McMillan believed
Child 2's disclosure of abuse was not affected in any way by third-party influence
and Weber believed Child 4's disclosure was not the result of any third-party
influence or suggestibility; in Child 5's interview, Weber used safeguards to
prevent any type of influence by checking to see if he used age-appropriate
language, to see if there was any alternative explanation, and if there was any
misunderstanding she attempted to figure out and clarify the truth behind what he
was saying; and McMillan testified Child 2 exhibited self-correction in her
interviews and that self-correction means a child is "applying truthfulness." Most
importantly, after testifying that each of the children made disclosures of abuse,
both McMillan and Weber testified they recommended each child participate in
therapy. Additionally, as to all three of the children she interviewed, McMillan
indicated she referred the children to a licensed mental health clinician. In her
testimony concerning Child 1, McMillan further specified she talked to the parents
about taking the child to a mental health clinician "who had education, training,
and experience working with children [who] had been sexually abused." Further,
as to the three children she interviewed, Weber also testified she recommended
each child have no contact with Taylor. See State v. Chavis, Op. No. 27491 (S.C.
Sup. Ct. filed Feb. 4, 2015) (Shearouse Adv. Sh. No. 5 at 20) (finding the trial
court erred in admitting testimony of a forensic interviewer qualified as an expert
regarding her recommendation that the victim not be around the appellant, because
such testimony could only be interpreted as the forensic interviewer "believing
Victim's claim that Appellant sexually abused her," and "[t]his type of bolstering,
especially when made by a witness imbued with imprimatur of an expert witness,
improperly invades the province of the jury"). Further, the forensic interviewers
gave general testimony expressing their methods of evaluating the children, which
may have indirectly conveyed that the children were truthful. See McKerley, 397
S.C. at 465-67, 725 S.E.2d at 142-43 (finding the following testimony of a forensic
interviewer, similar to that in the case at hand, to be inadmissible opinion
testimony that the victim was truthful, as none of this testimony had any relevance
except insofar as it informed the jury the forensic interviewer believed the story
told by the victim: "We want to be able to, . . . after assessing [the child's] behavior
and what they are stating in an interview, look at that along with the other
information that we may have had at the beginning of the interview and give an
opinion as to whether we think something happened . . ."; "'we are looking for
accuracy of information' given by the victim"; "we are also looking at . . . are there
other possible reasons, are there other possible explanations"; "we are looking to
see if[ ] [this] could . . . be explained in another way"; "we are looking to see if
what they tell us throughout the interview is the same from the beginning to the
end"; "we are also looking at their behavior and the way they are expressing
themselves in the interview . . . their behavior and their language"; and "in
forming her 'opinion as to whether . . . something happened,' she considered
whether the victim's statements were 'consistent with the other information' she has
on the case," which is similar to a statement found inadmissible in other case law
"that each of the children provided details consistent with the background
information received from their mother, the police report, and the other children").
There is no other way to interpret McMillan and Weber's testimony other than it
was their opinion that the children were telling the truth. See Jennings, 394 S.C. at
480, 716 S.E.2d at 94 ("There is 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 makes clear that qualification of a forensic interviewer
at trial is inappropriate and when a forensic interviewer is qualified as an expert,
the impermissible harm of rendering opinion testimony regarding the credibility of
others is compounded by the witness's qualification as an expert. McMillan and
Weber's testimony undoubtedly violated the prohibitions set forth in Kromah, and
Taylor was prejudiced thereby.2
Further, we find the admission of their testimony as experts was not harmless. Our
courts have determined the admission of evidence from a forensic interviewer that
improperly vouched for the veracity of child victims did not amount to harmless
error (1) when there was no physical evidence but only the children's accounts of
what occurred and other hearsay evidence of their accounts, and (2) when
extensive testimony bolstering the credibility of the child victim was improperly
admitted. See Jennings, 394 S.C. at 480, 716 S.E.2d at 94-95 (finding the trial
court's admission of reports of a forensic interviewer did not amount to harmless
error as there was no physical evidence presented, the only evidence presented by
2
We disagree with the State's error preservation argument. Defense counsel's
objection to the qualification of McMillan and Weber as experts in the field of
child abuse assessment and child abuse forensic assessment properly preserved the
matter for review. Defense counsel argued forensic interviewing was not a valid
expert field. This is the exact situation Kromah sought to prohibit, but Kromah
was not issued until after Taylor's trial. As our supreme court stated in State v.
Tapp, "[w]hile our preservation rules require that objections to the admissibility of
evidence be specific, . . . they most certainly do not require clairvoyance." 398
S.C. 376, 385-86, 728 S.E.2d 468, 473 (2012).
the State was the children's accounts of what occurred and other hearsay evidence
of the children's accounts, and the children's credibility was the most critical
determination of the case); McKerley, 397 S.C. at 467, 725 S.E.2d at 143 ("In light
of [the forensic interviewer's] extensive inadmissible testimony bolstering the
credibility of the victim, considered in the context of the other testimony and
evidence of McKerley's guilt, we cannot say the erroneous admission of [the
forensic interviewer's] testimony did not contribute to the jury's decision."). Here,
the only evidence of the lewd acts was from the children's accounts of what
occurred—as reflected in their testimony and forensic interviews and disclosure of
abuse to their parents and the forensic interviewers—and Taylor denied having
committed the acts of abuse. As in Jennings, there was no physical evidence to
support the commission of any lewd acts on the children and, as in McKerley,
extensive testimony from the forensic interviewers that bolstered the testimony of
the children was admitted into evidence. Because the children's credibility was the
most critical determination and extensive bolstering testimony was given from the
forensic interviewers who were inappropriately qualified as experts, we cannot say,
beyond a reasonable doubt, that the error did not contribute to the verdict. State v.
Douglas, 369 S.C. 424, 432, 632 S.E.2d 845, 849 (2006).("Error is harmless
beyond a reasonable doubt where it did not contribute to the verdict obtained.");
State v. Watts, 321 S.C. 158, 165, 467 S.E.2d 272, 277 (Ct. App. 1996) ("In
applying the harmless error rule, the court must be able to declare the error had
little, if any, likelihood of having changed the result of the trial and the court must
be able to declare such belief beyond a reasonable doubt.").
2. In light of our decision to reverse and remand for a new trial based on the
above, we decline to reach the remaining issues. See State v. Mekler, 379 S.C. 12,
17, 664 S.E.2d 477, 479 (2008) (affirming the decision to grant a new trial and
declining to address another ground for reversal, noting whether the issue would
arise on retrial and its resolution would depend upon the evidence and testimony
presented, and would therefore be for the trial court's consideration); Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not address remaining issues on appeal
when its determination of a prior issue is dispositive).
REVERSED AND REMANDED.
HUFF, SHORT, and KONDUROS, JJ., concur.