THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
In the Matter of the Care and Treatment of Roger Dale McCoy, Appellant.
Appeal From Greenville County
Edward W. Miller, Circuit Court Judge
Unpublished Opinion No. 2008-UP-261
Heard March 6, 2008 – Filed May 15, 2008
AFFIRMED
Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R. J. Shupe, Assistant Attorney General R. Westmoreland Clarkson, all of Columbia, for Respondent.
PER CURIAM: In this commitment action under the Sexually Violent Predator Act (Act)[1], Roger Dale McCoy appeals the circuit court’s allowance of certain testimony by the State’s expert witness. McCoy contends the testimony was irrelevant, was unfairly prejudicial, and improperly brought into issue the character of his expert witness. We affirm.
FACTS
McCoy pled guilty to two counts of first-degree criminal sexual conduct and one count of indecent exposure. He was incarcerated for those crimes in 1998. In 2004, pursuant to the Act, the South Carolina Department of Corrections (Department) assessed McCoy and determined he was a sexually violent predator as defined by section 44-48-30 of the South Carolina Code. The Department then petitioned the circuit court to order a formal evaluation of McCoy and, if a jury determined he was a sexually violent predator under the Act, to commit McCoy to the custody of the South Carolina Department of Mental Health for care and treatment until he could safely re-enter society.
The circuit court found probable cause existed for McCoy’s continued detention and ordered McCoy evaluated. On June 21, 2005, the circuit court tried the issue of whether McCoy should be committed as a sexually violent predator. During the trial, McCoy cross-examined the State’s expert witness, Dr. Pamela Crawford, as to her expert opinion. McCoy then presented attorney Larry Crane, who testified Dr. Crawford’s testimony in McCoy’s trial differed from her testimony in prior sexually violent predator trials. During Dr. Crawford’s rebuttal testimony, McCoy questioned whether she had referred a serial rapist to the defense expert, Dr. Thomas Martin, and attorney Crane. Dr. Crawford’s affirmative response included statements that Dr. Martin was “[a] doctor who had a very liberal sense of letting people go” and “who lets people go and is known in the community for letting people go when they’re very dangerous.” Dr. Crawford further stated she had recommended Dr. Martin and Crane to the other patient because she believed they were the people most likely to “get [him] off.” McCoy objected to these statements. Although the circuit court stopped Dr. Crawford from testifying as to the details of another case in which Crane represented a sexually violent predator, it permitted Dr. Crawford to continue her testimony regarding Dr. Martin and Crane and allowed McCoy to question Dr. Crawford further.
The jury ultimately found McCoy was a sexually violent predator. The circuit court ordered McCoy committed to the Department of Mental Health for long-term treatment upon completion of his sentence. This appeal followed.
The admission of evidence is within the discretion of the circuit court and will not be reversed by an appellate court absent an abuse of discretion. State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000). A circuit court’s ruling on the admissibility of an expert’s testimony constitutes an abuse of discretion when the ruling is manifestly arbitrary, unreasonable, or unfair. Fields v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005).
LAW/ANALYSIS
McCoy argues the circuit court erred in allowing Dr. Crawford’s testimony concerning Dr. Martin. McCoy contends the testimony was irrelevant, was unfairly prejudicial, and improperly brought into issue Dr. Martin’s character. We disagree.
I. Relevance
McCoy’s objection to Dr. Crawford’s testimony as irrelevant is unpersuasive. “‘Relevant evidence’ means 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.” Rule 401, SCRE. “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Rule 611, SCRE. A witness may be re-examined and cross-examined to rebut the testimony of another witness. Id. Any party may impeach a witness. Rule 607, SCRE.
Under Rule 401, Dr. Crawford’s credentials, expert opinion, and credibility were all relevant to the question of whether McCoy fit the criteria of a sexually violent predator under the Act. As an expert witness, Dr. Crawford offered expert testimony on which the jury could choose to rely in making its decision. McCoy’s first cross-examination of Dr. Crawford elicited her credentials and tested her expert opinion. After examining attorney Crane regarding Dr. Crawford’s testimony at prior trials, McCoy attempted to use his second cross-examination of Dr. Crawford to diminish her credibility. During this second encounter, McCoy questioned whether Dr. Crawford had referred another patient to Dr. Martin and attorney Crane. Dr. Crawford answered and explained why she had made the referral. The circuit court maintained control over the interrogation of Dr. Crawford, stopping her answer when it no longer pertained to the question and exercising appropriate discretion by allowing Dr. Crawford to explain her answer. Because Dr. Crawford’s statements were relevant, the circuit court did not abuse its discretion in admitting her testimony.
II. Unfair Prejudice
McCoy’s argument that even if Dr. Crawford’s testimony was relevant, it nevertheless was unfairly prejudicial, is equally unsuccessful. Otherwise relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Rule 403, SCRE. To warrant reversal based on the admission or exclusion of evidence, the complaining party must prove both the error of the ruling and the resulting prejudice. Fields, 363 S.C. at 26, 609 S.E.2d at 509. To show prejudice, reasonable probability must exist that the jury’s verdict was influenced by the challenged evidence or the lack thereof. Id.
On appeal, McCoy fails to prove prejudice. McCoy asserts Dr. Crawford’s testimony implied Dr. Martin’s “professional opinion was for sale” and the State “exploited” this testimony in closing argument. However, the trial transcript supports neither assertion. Dr. Crawford’s assessment of Dr. Martin as a doctor with a “very liberal sense of letting people go” recognized the doctors’ opinions differed vastly without impugning Dr. Martin’s integrity as an honest practitioner. In closing argument, both parties attempted to “spin” Dr. Crawford’s statements in a light favorable to their respective positions. McCoy ridiculed Dr. Crawford’s reasoning for her referral as “preposterous.” The State characterized it as honesty and “good faith.” Neither party insinuated this testimony condemned Dr. Martin. The trial transcript simply does not support an inference of reasonable probability that the disputed testimony influenced the jury. Therefore, the circuit court did not err in admitting Dr. Crawford’s testimony.
III. Hearsay
During cross-examination of Dr. Crawford, McCoy objected to her testimony, stating, “And it’s hearsay about Dr. Martin’s reputation in the community.” This argument is also meritless. With limited exceptions, “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” Rule 404(a), SCRE. McCoy seems to argue on appeal Dr. Crawford’s testimony was offered as evidence “that the defense expert may have been mistaken in an unrelated case.” However, McCoy, and not the State, elicited this testimony from Dr. Crawford. Neither the State nor Dr. Crawford offered this testimony “for the purpose of proving action in conformity” with a trait of Dr. Martin’s character, but rather for the purpose of explaining the bases of Dr. Crawford’s decision to make a referral brought into issue by McCoy himself. Consequently, Rule 404(a) does not apply, and the circuit court did not err in admitting this testimony.
CONCLUSION
The circuit court did not err in admitting Dr. Crawford’s testimony concerning her decision to refer another patient to Dr. Martin. With her credibility under attack, Dr. Crawford explained the bases for her decision to make the referral, and no prejudice resulted. Accordingly, the decision of the circuit court is
AFFIRMED.
HEARN, C.J.,
PIEPER, J., and CURETON, A.J., concur.
[1] S.C. Code Ann. §§ 44-48-10 to -170 (Supp. 2007).