*1 SCHUMPERT, Appellant. STATE, Respondent v. Frank Carlton 859) (435 Supreme Court *2 Jack B. Swerling, Columbia and H. III Pope, Thomas Pope Hudgens, Newberry, & appellant. for Medlock, T. Attorney Gen. Travis Atty. Gen. Deputy Chief Zelenka, J. Jones, IV, Donald and Sol. W. Townes Columbia, Greenwood, respondent. for 22, 1993.
Heard March 28, 1993. Decided Aug. 22, 1993. Reh. Den. Sept. Justice: Moore, awith convicted of criminal sexual conduct was We affirm imprisonment. and false
minor, kidnapping, and kidnapping criminal sexual conduct convictions for false imprisonment. vacate the conviction for
FACTS at time yеars thirteen old The victim was Scurry on Island Road parents She lived with her offense. South Carolina. Chappells, which borders Lake Greenwood house on the same road but did Appellant owned lake at time in ques- old sixty-three-years reside there. He tion. either the 14th or Sаturday, victim testified that walking at to 5:00 she was April p.m.,
21st of around 4:00 pulled up home in his appellant the road near her when along her. told him her began par- truck and She pickup talking ents had her to talk with him after she told them forbidden *3 Ap- he had kissed her on the mouth. previous a incident when and into the truck and then her her pellant grabbed pulled her truck while pulled to his lake He out the drove house. a he raped and her into bedroom where struggled she took and her, her. After went into bathroom appellant raping came appellаnt When back pulled up clothing. victim her bed, him ran into and on the she kicked and the bedroom sat From her hiding place, out the house into the woods. she saw leave his truck. appellant reported guidance The victim her counselor rape A to four weeks later. examined her gynecologist three dilated, was May hymen 1990. He testified her which con- of tearing with but there was no evidence penetration, sisted at trial was alibi. scarring. or defense Appellant’s ISSUES 1. trauma evidence was admit- rape improperly Whether
ted. hearsay 2. was admitted. improperly Whether by 3. was the trial appellant prejudiced judge’s Whether the time of the offense. charge regarding an 4. corroboration” was imper- Whether “no missible on the facts.
DISCUSSION Rape 1. Trauma Evidence After reported, was victim was interviеwed Heather Odell from the Department Social Services and Strait, Kuth a mental health counselor. Both Odell and Strait testified at trial the victim’s regarding behavior after the rape.
Odell testified nervous, the victim appeared withdrawn and was at her tugging and had a clothing, difficult time maintain- eye contact at ing their interview. She described victim as in “a being general state of nervousness and apprehension.” observations, Based on her Odell referred the case for crime victim counselling. Odell also testified the victim’s behavior not was аttributable normal hormonal and teenage changes she therefore concluded “this was case of criminal sex- child ual assault.” qualified
Strait was as “in expert an the field of sexual abuse.” She tearful, nervous, testified the was victim and had habits, fluctuating eating nightmares, lethаrgy, hypervigi- lence, and problems with anger guilt. Strait further testi- fied the victim’s behavioral were symptoms for vic- typical tim of sexual abuse.
First, appellant contends Odell and Strait were not quali to give expert fied testimony syndrome. trauma No at issue raised trial Odell’s as an regarding qualification This issue expert. is therefore before us. properly Caldwell, 350, 322
As to Strait’s we find no error. qualification, quali fication of a an witness as falls within expert largely the trial judge’s discretion. State Myers, *4 (2d) 251, 391S.E. 551 the party has offering expert the burden of showing his witness possessеs necessary skill, or learning, practical to experience enable witness to give opinion testimony. Generally, however, defects in the of amount and education or quality experience go to the of weight expert’s testimony and not its Id. admissibility. Strait testified shе a had master’s in social work and degree specialized in child and adolescent services. She attended training seminars sexual abuse regarding survivors and worked on more one than hundred cases involving sexually 506 her no of discretion in qualifi- We find abuse children.
abused an expert. cation as rape in error the admission next claims
Appellant He actually to occurred. prove rape trauma evidence (2d) Hudnall, 97, 59 359 S.E. v. 293 S.C. relies State (1987), testimony regarding this held expert in which Court by child victims characteristics exhibited commonbehavioral oc- abuse had was not admissible to establish of sexual abuse rebut a de- only this evidence admissible to curred. We held with response was inconsistent fense claim that victim’s such a trauma. (2d) Alexander, 377, 401 146 S.E.
In State (1991), rape trauma of a however, testimony we held the elements of criminal victim is relevant to prove it more evidence makes or less sexual conduct since such held such evi that the offense occurred. We further probable value its probative outweighs admissible where its dence overrule expressly effect. Id. We now prejudicial it is v. Alexan to the extent inconsistent with State Hudnall evi and behavioral clarify expert testimony der and that both a sex rape prove as trauma evidence to dence are admissible value of such evi probative occurred where the ual offense find the probative its effect.1We outweighs dence prejudicial in this case its outweighs value of the trauma evidence rape admitted. properly and therefore hold it was prejudicial effect 2. Hearsay David, counselor, the victim’s testified guidаnce Marian in the lake area where she victim told her occurred Strait, counselor, health testified the Ruth the mental lived. Shumpert’s her the occurred at “Carlton lake victim hold contends there were inadmissi- house.” statements hearsay. ble rule hearsay to the that exception
It is well-settled testifies, when the victim criminal sexual conduct cases complained from that she other witnesses corroboration limited the time the assault admissible excluding particulars. the assault details or place and 1 Rogers, (2d) 526, (1987), Bradley, and State v. 362 S.E. (1987), they extent are S.C. are also overruled hei'ewith. inconsistent
507 (2d) Simpkins 364, (1991); 303 S.C. 401 142 S.E. Barrett, (2d) (1989). 485, 299 S.C. 386 242 Appellant contends, however, that the exception allowing these hearsay statements should be limited to res gestae and impeachment situations. We disagree. court
This has never limitеd this narrow hearsay exception to the rebuttal of impeachment evidence. The only require- ment is that the victim testify. appellant misappre- hends res Res gestae. gestae separate is to the exception hearsay rule which allows corroborative with- rape testimony See, out e.g., Harrison, State v. restriction. time/place 298 (2d) 333, see (1989); S.C. 380 S.E. 818 generally Wigmore 3A on Evidence 1139 (3d ed.). § also
Appellant
complains that Strait mentioned his
name when specifying the location of the alleged rape.
He clаims this detail falls outside the exception allow-
ing time/place corroboration. Although counsel raised this
issue at
limine
to determine
hearing
admissibility
evidence,
corroborating
he did not object when Strait actually
testified. A
ruling
limine is not a final ruling on the admissi-
State v.
(2d)
of evidence.
Floyd,
bility
518,
295
S.C.
369 S.E.
(1988).
Unless an objection is made at the time the evi-
dence is offered
a final
made,
ruling
issue is not pre-
Co.,
Accord Bank v. N.C. Mut.
served for review.
Ins.
Life
(1938)
394,
Moreover, two other witnesses testified objec- without tion that the victim them told occurred at “Carlton Schumpert’s house.” does not chal- Appellant lenge appeal testimony of these two witnesses. Strait’s testimony merely cumulative and any therefore error is Johnson, harmless. 496, 381 S.E. 3. Charge rеgarding time The indictment in this case occurred between April 13 and 1990. May During the state’s case, however, the victim testified it oc- definitely curred on a it Saturday and was either Saturday, April or Saturday, 21. April alibi presented testimony for May 13 and 18. Saturday April between every *6 the evidеnce, following requested the appellant At close of charge: only indictment is not evidence you
I that the charge charges of the the defendant on notice serves to put to proof has limited its cer- him. Where the State against to taken placе, the have alleged tain that offense is dates dates as to considering only limited those you are to that the offense occurred. proof which there is judge charged: Instead the trial that the offense oc- prove The to required State is the alleged period any day curred on exact between alleged that the prove But the state is to required time. the the period April did sometime during offense occur 18th, you that time 13th, May charge 1990 and the 1990.1 a involving a sexual assault is not a material element of child. circumstancеs, where under these particular claims the time frame to two Satur-
the own narrowed proof State’s of alibi to allow pleas in it was his days April, prejudicial any time the during find that offense occurred jury the the in the indictment. time alleged Rallo, First, on State v. relies appellant Rallo, In however, distinguishable. the offense allege amended to oc- Rallo the indictment was in charg- 14. held the trial erred February judge curred on We February “on or about” the the offense occurred ing jury 14 and the defendant alleged February the indictment becаuse in evidence of alibi. Essen- presenting had focused on that date any in Rallo not have notice of date the defendant did tially, it error to that in the indictment and was other than however, Here, time the larger period. with jury the time the indictment. period alleged trial judgе charged case from the we find no this prejudice to consider a charge allowing jury given. Despite into than that introduced period time larger every for weekend alibi evidence appellant produced find any time We therefore during period charged. the entire a reasonable doubt. beyond error harmless 4. “No corroboration” charge (1985) § 12 S.C. Code Ann. 16-3-657 provides: testimony victim need not be corroborated in prosecutions §§ under 16-3-652through 16-3-658. The trial judge charged jury that accordingly “the testi- of the victim mony need not be in рrosecutions corroborated 16-3-655, § under that being the offense of criminal sexual con- duct with a minor.” Appellant contends this statement was an erroneous charge on the facts.
The trial judge properly charged the it jury could believe any single several, witness over it was the judge sole of the facts, he had no opinion about facts, those and the State had the burden of proving offense charged beyond reason- *7 able doubt. Taking the as a whole charge we find no reversible error. (2d) Accord Lottie v. 529, 273 Ind. 406 N.E. 632 (1980).
CONCLUSION Appellant’s convictions for criminal sexual conduct with a minor and kidnapping are affirmed. The State concedes error in appellant’s conviction for false imprisonment and we vacate that Berntsen, conviction. See v. State 295 52, S.C. 367 S.E. (2d) (1988). 152 Appellant’s remaining argument is affirmed рursuant 220(b), to Rule SCACR. See State v. Mayfield, 235 (2d) (1959) 11, 109 (alibi). S.C. 716 in part; Affirmed in part. vacated Harwell, C.J., and Chandler Toal, JJ., concur. Finney, J., dissenting separate opinion.
Finney, Justice (dissenting):
I respectfully dissent. I would hold that expert testimony relating to sexual abuse trauma evidence is relevant and ad- missible it only where is offered to rebut defense claim that the victim’s actions were inconsistent with such trauma. State Hudnall, (2d) (1987). 97, v. 293 Here, S.C. 359 S.E. 59 appel- lant did not contest the victim’s assertion that she had suf- fered a sexual assault but offered an alibi defense. Accord- ingly, since the trauma evidenсe was not relevant to the re- identity—its admission constituted
sole issue at trial — Hudnall, v. supra. versible error. State per- I do not contrary majority, to view of our in Hud- ceive an conflict between decision irreconcilable (2d) 377, Alexander, and in 303 S.C. 401 S.E. nall (1991). Alexander, was only In we thаt where issue held emo- consent, testimony an victim’s her own found, in that however, relevant. that tional trauma was We unique case the under its unduly prejudicial Alexander, case, facts. This like Hudnall and unlike involves it relevant testimony where is not admissibility expert not there- any testimony relevant and defense. Since its value admissible, fore not we need not weigh prejudicial its effect. I would reverse on the basis against probative Hudnall.
I that the based would also hold “no corroboration” (1985) § It is on S.C. Code Ann. 16-3-657 was reversible error. indicate an or ex judge opinion axiomatic that a trial must not reasonably a view calculated to influence the in de press jury fact a material issue of such comment is forbid ciding because Const, Simmons, §V, art. den S.C. 21. State (2d) 531, only 41 S.E. specified Since corroborated, it testimony ap that the victim’s need not be credibility. In pears express opinion Bag an her well, (1943), rejected 23 S.E. this Court in the of accom charge” a similar “no corroboration context The law found in Section 16-3-657should plice testimony. Const, §V, 21. charged jury. be to the S.C. art. *8 the “no cor- majority propriety does discuss the itself, holds jury
roboration” but instead that the charge as a did not constitute reversible error. I dis- charge whole Bagwell, We have such agree. rejected analysis this supra. especially prejudicial against case because it was the victim’s word the defendant’s. I would hold that of this was reversible giving (Tex. Accord, App. error. Ct. Cox S.W. Crim. 1898).