THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Kenneth Dale McAteer,        Appellant.

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No.� 2003-UP-261
Submitted January 29, 2003 - Filed April 9, 2003

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of the South Carolina Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Thomas E. Pope, of York; for Respondent.

PER CURIAM:� Kenneth Dale McAteer was convicted of three counts of first degree criminal sexual conduct (CSC) with a minor, a violation of S.C. Code Ann. � 16-3-655 (2003).� He appeals, arguing the trial court erred in excluding evidence of a purported prior sexual assault on the victim.� We affirm. [1]

FACTS

The charges in this case arise out of allegations that McAteer was responsible for three acts of sexual assault involving the nine-year-old female victim in January 2000, including digital penetration, cunnilingus, and fellatio.�

McAteer and his common-law wife were best friends with the victim�s parents, and their children considered themselves to be �cousins.�� The victim�s father had known McAteer for thirteen years, and the children of the two couples often played together and spent the night in each other�s homes.� The victim was particularly close to McAteer.� He frequently played with her, tickling her and wrestling with her.�

In January 2000, the victim stayed overnight with McAteer�s two daughters in their bedroom.� According to the victim, all three girls were sleeping on the floor when McAteer came in around midnight and asked if she wanted to watch a movie.� The other two girls were asleep, so the victim went into the living room and sat on McAteer�s lap.� While they watched television, McAteer asked her if she knew how to French kiss.� The victim said no and when he asked her further questions, she said she was not going to tell him anything.� The victim drifted off to sleep while sitting on McAteer�s lap and when she woke up she �felt someone kissing me on my face and something was like poking me on my leg [ ].�� The victim stated she was very sleepy so she went back to the bedroom and fell asleep.� The next time she awoke, she felt McAteer touching her chest and unzipping her pants.� McAteer then digitally penetrated her and committed cunnilingus on her, and required the victim to perform fellatio on him.� The victim stated that when he finished, McAteer told her, �Now you know everything.����

The victim�s father noticed that his daughter, who had previously been very close to McAteer, became more withdrawn and her attitude changed about staying over after that particular visit.� The victim initially told her parents only that McAteer had asked her about French kissing.� The victim decided not to say anything further after her mother started crying when she told her about McAteer�s question.�

The victim�s father stated that when he questioned McAteer about his daughter�s statement, McAteer told him that he had overheard the girls talking about French kissing, so he had gone into their bedroom to reprimand them for it.� McAteer told him he had asked all the children if they wanted to watch a movie, but only the victim had gotten up.���

The families continued some activities together, but thereafter, in February or March of 2001, the victim revealed the details of the sexual abuse to a school counselor, who contacted the victim�s parents and the police.� McAteer was indicted on three charges of first degree CSC with a minor.�

At trial, the pediatrician who examined the victim in March 2001, Dr. Dwight Reynolds, testified that the victim�s hymen was asymmetrical, narrower on the right side than the left, which was �highly unusual.�� He stated that, while this was �not complete evidence of penetration,� it was consistent with penetration and he knew of no natural cause that would result in this variation.� During cross-examination, Reynolds stated that, while he could not rule out that the victim was born this way, it would be �a long shot.�� Assuming the narrowing was caused by penetration, Reynolds stated it �may have been weeks, months, or even years before.�� When asked whether it �could have occurred as early as when the child was three years old,� Reynolds stated the child was ten when he saw her and �seven years seems outside the range of what [he] would expect.�� He stated that had the incident occurred even four years before, it would be �a real stretch� that such an injury would be detected.�

McAteer denied the allegations of assault.� A jury found him guilty of three counts of first degree CSC with a minor.� The trial court sentenced him to concurrent terms of fifteen years in prison on each count.�

LAW/ANALYSIS

At trial, McAteer sought to introduce testimony regarding an alleged incident of misconduct previously committed against the victim when she was approximately three years old.� On appeal, he contends the trial court abused its discretion in refusing to allow the testimony.� We disagree.

The victim�s father testified in camera that when his daughter was three years old, some young boys tried to pull her panties down.� He stated he reported the incident and his daughter went through psychological testing with dolls to determine what had happened to her.� They concluded, however, �that there was no foul play� and it was not necessary for her to have a medical examination.�

During later in camera testimony, the victim�s mother testified that when her daughter was between the ages of three and five, she told her that some young boys had tried to pull her panties down, but she initially did not believe her as they were visiting with family members.� The child went back out to play and less than an hour later she returned and repeated her accusation.� At that point, they went to a doctor, who sent a social worker to their house to interview the child using dolls.� The social worker reported to the doctor that the boys had only tried to pull the child�s panties down, so the doctor decided no physical examination was necessary.� The mother stated her child was not hurt and she never alleged anything else had happened to her.� The mother stated she did not take the child to the emergency room and did not remember seeing someone named Chastity Furtick at the hospital.�

Defense counsel proffered the testimony of Chastity Furtick, who stated that in 1993 or 1994, when the victim was three or four, she was at the emergency room at Piedmont Medical Center when she saw the victim and her mother come in.� She stated the victim�s mother came in crying and saying that the child �had gotten messed with and [she] was trying to check her in� but the nurse told her the child was too young to be examined with their equipment and needed to see a pediatrician.� Furtick testified that the mother came over and told her the child had been �raped.��

Defense counsel sought to introduce Furtick�s testimony to show that the victim�s hymen could have been penetrated by the previous incident and was not caused by penetration by McAteer.� The trial court excluded the testimony on the basis there was �no evidence to support any allegation other than the alleged one emotional statement by [the mother] to this witness [Furtick] that any previous molestation had occurred with the minor and the only evidence is . . . that the child complained about other boys wanting to pull down her panties and that a follow-up was made of that and therefore I�m not going to allow the evidence.��

�The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion.�� State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001).� �While defendants are entitled to a fair opportunity to present a defense, that right does not encompass the right to present any evidence, regardless of its admissibility under the rules of evidence.�� State v. Hamilton, 344 S.C. 344, 359, 543 S.E.2d 586, 594 (Ct. App. 2001).� �Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .�� Rule 403, SCRE.

We cannot say as a matter of law that the trial court abused its discretion in this instance.� As noted by the court, the in camera testimony indicated only that, when the child was three years old, some young boys had tried to pull the child�s panties down while she was outside playing.� She was taken to a doctor but it was determined that no physical examination was necessary as no sexual abuse was noted.� Defense counsel�s proffered testimony that there was penetration based on the mother�s alleged statement, made over seven years prior, that the child had been �raped� does not, in and of itself, support a claim of a prior sexual battery.� This is particularly true in light of the fact that the pediatrician was specifically asked whether the narrowing of the child�s hymen could have occurred when she was three years old and he stated this was �outside the range of what [he] would expect.�� Since there was no physical examination or further inquiry, under these circumstances, it would be speculative for the jury to determine penetration had previously occurred and the testimony could tend to confuse or mislead the jury.� Accordingly, we conclude the trial court properly excluded the proffered testimony.

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.