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South Carolina
Judicial Department
2005-UP-057 - In the Matter of Lipe


In The Court of Appeals

In the Matter of the Care and Treatment of Floyd Daniel Lipe, Appellant.

Appeal From Greenwood County
Wyatt T. Saunders, Jr, Circuit Court Judge

Unpublished Opinion No.  2005-UP-057
Submitted December 1, 2004 – Filed January 24, 2005


George P. Callison, Jr., of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R. J. Shupe, and Assistant Attorney General David Spencer, all of Columbia, for Respondent.

PER CURIAM:  A jury committed Floyd Daniel Lipe to the Department of Mental Health as a sexually violent predator under the South Carolina Sexually Violent Predator Act found in sections 44-48-10 to 170 of the South Carolina Code (2002).  Lipe appeals, arguing the trial court erred by denying his motions for directed verdict and JNOV, and prohibiting him from admitting a prior mental evaluation.  We affirm. [1]   


Lipe was convicted of four counts of a lewd act upon a minor, two counts of criminal sexual conduct with a minor, second degree, and one count of directing, performing, and promoting the performance of minors in sexual acts.  Lipe was released on probation after serving two years in prison.  However, he violated his probation and, within several months, was re-incarcerated.  Lipe was released again approximately two years later, but was re-incarcerated for attempted arson.         

Subsequently, the State of South Carolina filed a petition pursuant to the South Carolina Sexually Violent Predator Act, seeking to commit Lipe as a sexually violent predator.  The case was tried before a jury.  During cross-examination of the State’s expert, Lipe’s attorney sought to introduce a mental evaluation of Lipe that was completed in 1991 at the request of the court in connection with the initial charges brought against him.  The evaluation was conducted to determine Lipe’s competency to stand trial.  The State objected to the admission of the report on the basis of relevancy and hearsay, and the judge ruled the report was inadmissible.

Lipe moved for directed verdict at the close of the State’s case, arguing the State failed to prove he lacked the ability to control his actions as required by Kansas v. Crane, 534 U.S. 407 (2002).  However, the judge denied the motion.  Lipe renewed his motion at the close of all of the evidence and again, the judge denied it.  The jury determined Lipe is a sexually violent predator and commited him to the Department of Mental Health.  Lipe moved for judgment notwithstanding the verdict on the same basis as his motions for directed verdict.  The judge denied the motion and Lipe appeals.


I.  Directed Verdict and JNOV Motions

Lipe argues the trial judge erred in denying his motions for directed verdict and JNOV because the State is required to prove an individual cannot control his or her behavior before he or she can be adjudicated a sexually violent predator under the South Carolina Sexually Violent Predator Act.  Lipe maintains the State failed to offer any proof that he had serious difficulty controlling his behavior, and therefore, the trial court erred in denying his motions.  We disagree. 

“When reviewing the denial of a motion for directed verdict or JNOV, this Court must employ the same standard as the trial court by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party.”  Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000).  The trial court must determine whether a verdict for the opposing party “would be reasonably possible under the facts as liberally construed in his favor.”  Harvey v. Strickland, 350 S.C. 303, 309, 566 S.E.2d 529, 532 (2002).  In our review of the trial court’s ruling, we may reverse only if no evidence exists to support that ruling.  South Carolina Prop. & Cas. Guar. Ass’n v. Yensen, 345 S.C. 512, 521, 548 S.E.2d 880, 885 (Ct. App. 2001). 

The South Carolina Sexually Violent Predator Act defines a sexually violent predator as a person who:

(a) has been convicted of a sexually violent offense; and
(b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

S.C. Code Ann. § 44-48-30(1)(a) and (b) (2002).

In In re Luckabaugh, 351 S.C. 122, 142, 568 S.E.2d 338, 348 (2002), a Sexually Violent Predator Act case, the South Carolina Supreme Court confirmed Kansas v. Crane, 534 U.S. 407 (2002), required “a court to make a lack of control determination before involuntarily committing someone under these statutes.”  However, the court found Crane did not clarify how to determine “where control ends and where a lack of control begins.”  Id.  Our supreme court then held that “Crane holds the substantive due process clause requires a court to determine an individual suffers from a mental illness which makes it seriously difficult, though not impossible, for that person to control his dangerous propensities.”  Id. at 143, 568 S.E.2d at 348.  The court further determined an “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.”  Id. at 144, 568 S.E.2d at 349.

In a comparable case, In re Kennedy, 353 S.C. 394, 578 S.E.2d 27 (Ct. App. 2003), we addressed an argument similar to the argument made by Lipe.  In that case, Kennedy argued the State failed to prove beyond a reasonable doubt that he was a sexually violent predator.  Id. at 396, 578 S.E.2d at 28.  The State’s expert testified Kennedy suffered from pedophilia, frotteurism, and anxiety disorder.  Id. at 398, 578 S.E.2d at 28.  She noted that pedophilia is a lifelong illness and that Kennedy “had the propensity to commit future acts on children because of the illness.”   Id.  Based on these findings, we upheld the trial judge’s determination that Kennedy was a sexually violent predator.  Id. at 398, 578 S.E.2d at 28-29.  In addition, relying on Luckabaugh, we found because Kennedy suffered from pedophilia, an abnormality critically involving a lack of control, inherent evidence existed establishing Kennedy suffered from an inability to control his own behavior.  Id. at 399-400, 578 S.E.2d at 29. 

In the case at bar, we find evidence to support the trial judge’s ruling.  As stated in Luckabaugh, the judge was not required to make a specific determination that Lipe lacked control, but need only find he suffers from a mental illness that makes it difficult for him to control his behavior.  The State’s expert, a forensic psychiatrist, diagnosed Lipe with pedophilia, based on his past criminal convictions and tests indicating his continued arousal to young girls.  The State’s expert also diagnosed Lipe as suffering from alcoholism, anxiety disorder, and mild mental retardation.  Relying on these diagnoses, as well as his age, lack of support system, his denial of the offenses, past legal troubles, prior relationship history, and his propensity to act impulsively, the State’s expert determined Lipe has the propensity to commit further acts of sexual violence.   She also determined that Lipe needs inpatient treatment.  Based on the testimony of the State’s expert, the evidence established Lipe suffered from a mental illness making him unable to control his behavior, and therefore, the trial judge did not err in denying Lipe’s motions for directed verdict and JNOV. 

II.  Admissibility of Prior Evaluation

Lipe argues the trial judge erred in prohibiting him from admitting the 1991 mental evaluation by Dr. Richard Ellison because the evaluation was relevant to show Lipe did not have a mental illness.  We disagree. 

The admission of evidence is within the discretion of the trial judge and “will not be reversed on appeal absent an abuse of that discretion or the commission of a legal error that results in prejudice to the defendant.”  State v. Adams, 354 S.C. 361, 377, 580 S.E.2d 785, 793 (Ct. App. 2003).  Rule 401, SCRE, defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  “Evidence which is not relevant is not admissible.”  Rule 402, SCRE. 

Section 44-23-410(1) of the South Carolina Code (Supp. 1991) states a judge can order an examination of a person charged with a crime if the judge suspects the person is not fit to stand trial due to lack of “capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity.”  According to section 44-23-410 and the evaluation itself, Dr. Ellison conducted the evaluation simply for purposes of determining Lipe’s competency to stand trial, not to diagnose Lipe’s mental condition.  Thus, the evaluation was not relevant to the case at bar.  Accordingly, the trial judge did not abuse his discretion in determining the evaluation was not relevant and therefore, inadmissible.



[1] We decide this case without oral argument pursuant to Rule 215, SCACR.