In the Matter of the Care and Treatment of Whitcraft ( 2004 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In the Matter of the Care and Treatment of Kenneth R. Whitcraft,        Appellant.

---

Appeal From Beaufort County
R. Markley Dennis, Jr., Circuit Court Judge

---

Unpublished Opinion No. 2004-UP-018
Submitted October 15, 2003 – Filed January 15, 2004

---

AFFIRMED

---

John B. Williams, of Moncks Corner, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Deputy Attorney General Treva Ashworth, Assistant Attorney General Deborah R. J. Shupe, Assistant Attorney General R. Westmoreland Clarkson, all of Columbia, for Respondent.

PER CURIAM:   A jury found that Appellant was a sexually violent predator. We affirm.

FACTS

Kenneth Whitcraft pled guilty to criminal sexual conduct with a minor (second degree) in 1990. Whitcraft had been convicted on similar charges in Pennsylvania as early as 1985. He was given a 16-year sentence. In March of 2001, as Whitcraft was approaching his parole date, the state petitioned Judge Dennis to declare Whitcraft a sexually violent predator. At trial, the state’s expert witness testified that Whitcraft had a “history, … severe difficulty controlling his impulses”; that Whitcraft suffered from pedophilia, alcohol abuse, and anxiety disorder; that Whitcraft could have great difficulty controlling his impulses if he started abusing alcohol again; that Whitcraft was in “the moderate to higher risk to reoffend” group of sex offenders; and that Whitcraft met the statutory definition of a “sexually violent predator.” After both sides presented testimony, Whitcraft moved for a directed verdict. The trial judge declined. The Berkeley County jury found that the state had proven beyond a reasonable doubt that Whitcraft was a sexually violent predator under S.C. Ann. Code § 44-48-30. The trial judge then committed Whitcraft to the Department of Mental Health “long term.” Whitcraft appeals.

ISSUES

(1) Did the trial court err in not ruling that the state failed to carry its burden under Kansa v. Crane?

(2) Does the Sexual Violent Predator Act violate the Ex Post Facto clauses of the U.S. and the South Carolina constitutions?

(3) Does restraining Whitcraft even after he has served his sentence constitute cruel and unusual punishment?

 ANALYSIS

“In an action at law, on appeal of a case tried by a jury, the [j]urisdiction of this Court extends merely to the correction of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings.” Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 8, 86, 221 S.E.2d 773, 775 (1976) (citing Odom v. Weathersbee, 225 S.C. 253, 81 S.E.2d 788 (1954)).  

Whitcraft first argues that the state failed to carry its burden under Kansas, as adopted in South Carolina. [1] The South Carolina Act defines a sexually violent predator as a “person likely to engage in acts of sexual violence if not confined ….” S.C. Code Ann. §44-48-30(1) (2002). In In the Matter of the Care and Treatment of Luckabaugh, 351 S.C. 122, 144, 568 S.E.2d 338, 349 (2002), the court declared that under the Act, “the individual can only be committed if he suffers from a mental illness which he cannot sufficiently control without the structure and care provided by a mental health facility, rendering him likely to commit a dangerous act.” In re Luckabaugh clearly mandates, among other elements, a finding that the defendant requires residential treatment in order to control his impulses before he can be committed to a long-term state facility.

Whitcraft argues that no such evidence was adduced at trial. We disagree. At trial, the state’s expert testified that Whitcraft suffered from three illnesses: alcohol abuse, anxiety disorder, and “more serious” or “severe” pedophilia that could cause him extreme difficulty in controlling his impulses. The state’s expert witness also specifically agreed that “Whitcraft suffers from a mental abnormality or personality disorder that … give[s] him the propensity to engage in acts of sexual violence if not confined in a secure facility for long-term care and treatment.” Based on that testimony, the jury found that Whitcraft is a sexually violent predator as defined under the Act.

It is true that the evidence against Whitcraft was less than overwhelming. [2] And there was contradicting testimony from Whitcraft’s expert. However, when ruling on a motion for a directed verdict, a trial court considers the existence of the evidence, not its weight. State v. Glaser, 349 S.C. 545, 548, 564 S.E.2d 87, 92 (2002). Here, the jury found that Whitcraft was a sexually violent predator. There was sufficient evidence to reasonably support that finding. Therefore, we cannot disturb the finding.

Whitcraft also argues that the Act violates the ex post facto clause of both the U.S. and the South Carolina Constitutions. That contention, however, is without merit since our supreme court has already ruled that the Act is constitutional. The court held in In re: Luckabaugh, 351 S.C. at 135, 568 S.E.2d at 344 that “the Act is a civil, non-punitive scheme.” The court explained that a “statute creating two types of civil commitment is not per se punitive in violation of the ex post facto clause.” Id. at 138, 568 S.E.2d at 246.

Since the Act is constitutional, Whitcraft’s third argument must necessarily fail.

AFFIRMED.

HUFF, STILWELL, and BEATTY, J.J., concur.

---

[1] Our Supreme Court has held that the state’s Sexual Violent Predator Act is essentially similar to the Kansas statute addressed in Kansas. In the Matter of the Care and Treatment of Allen, 351 S.C. 153, 156, 568 S.E.2d 354, 355 (2002) (citing In the Matter of the care and Treatment of McCracken, 346 S.C. 87, 91, 551 S.E.2d 235, 238 (2001); In the Matter of the care and Treatment of Matthews, 354 S.C. 638, 649, 550 S.E.2d 311, 316 (2001)).

[2] The state’s expert indicated that Whitcraft suffers from a serious form of pedophilia that could lead to further offenses; that would be severe if left untreated; that he could be treated in a non-residential facility; that Whicraft had cooperated with the psychologist and accepted “some” responsibility for his actions.