State v. Whitner, 399 S.C. 547

Background

Whitner, biological father, was convicted of criminal sexual conduct with a minor in the first degree for abuses against his five- or six-year-old daughter.
The abuse allegedly occurred when the victim was a young child; the acts included exposing himself and forcing oral sex on the victim twice.
As the victim aged to eleven, she disclosed the abuse to her mother, who then and later the stepfather recorded a thirty-one minute telephone conversation between the victim and Whitner.
Mother consented to the recording on behalf of the victim without the victim’s knowledge or consent, and the recording captured Whitner admitting the abuse.
Law enforcement received the recording; a forensic interview of the victim was conducted during the investigation.
Whitner moved to suppress both the recorded telephone conversation and the forensic-interview videotape; the circuit court granted suppression, the court of appeals vacated, and the case proceeded to trial where the recordings were admitted and Whitner was convicted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Wiretap Act permits vicarious parental consent.	Whitner argues no vicarious consent provision exists.	State contends consent provision includes vicarious consent via a guardian.	The Wiretap Act permits vicarious parental consent.
Whether the court properly applied the good-faith/vicarious-consent standard.	Whitner contends no good-faith basis supported interception.	State asserts Mother had a good-faith, objectively reasonable basis to intercept.	There was sufficient evidence of a good-faith basis; no abuse of discretion.
Whether the interception violates the South Carolina Constitution absent Pollock-based limits.	Whitner argues constitutional privacy protections are violated without stricter limits.	State relies on vicarious-consent doctrine under Wiretap Act; Constitution is not violated.	Constitutional argument rejected; vicarious-consent doctrine applies.
Whether the forensic interview videotape was properly admissible and non-prejudicial.	Whitner challenges bolstering and cumulativeness under Rule 801(d)(1)(B).	State contends § 17-23-175 permits admission for foundation and non-bolstering purposes.	Videotape properly admitted; no improper bolstering.
Whether the trial court erred in admitting the forensic interview for foundation purposes under § 17-23-175.	Whitner asserts improper bolstering by the interviewer’s testimony.	State notes statutory allowance and non-prejudicial use.	No error in foundation testimony or admission.

Key Cases Cited

Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) (vicarious parental consent permitted when good-faith, reasonable basis exists)
State v. Spencer, 737 N.W.2d 124 (Iowa 2007) (adopts vicarious consent doctrine for minors)
Silas v. Silas, 680 So.2d 368 (Ala.Civ.App. 1996) (recognizes vicarious consent concepts in similar context)
Alameda v. State, 235 S.W.3d 218 (Tex.Crim.App. 2007) (permits admissibility under vicarious-consent rationale)
Troxel v. Granville, 530 U.S. 57 (2000) (fundamental parental rights; deference to fit parents' decisions)
Casey v. Planned Parenthood of Southeastern Pa., 505 U.S. 833 (1992) (minor privacy rights; parental involvement context)
Gaster, State v., 349 S.C. 545 (2002) (abuse of discretion standard for evidentiary rulings)
State v. Jennings, 394 S.C. 473 (2011) (distinguishes admissibility of forensic-interviewer reports)
State v. Douglas, 380 S.C. 499 (2009) (admission of forensic-interviewer testimony proper when non-bolstering)