Opinion No. 25529Supreme Court of South Carolina.Heard July 23, 2002
Filed September 16, 2002
Appeal From Lexington County Richard W. Chewning, III, Family Court Judge
AFFIRMED AS MODIFIED Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Melody J. Brown, all of Columbia, for petitioner.
Tara D. Shurling, of Columbia, for respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
CHIEF JUSTICE TOAL:
The State appeals the decision of the Court of Appeals reversing Michael H.’s (“Respondent”) juvenile conviction for criminal sexual conduct (“CSC”) with a minor.
Factual / Procedural Background
Respondent was charged, by juvenile petition filed in Lexington County family court, with CSC in the first degree, kidnapping, and CSC with a minor. Respondent is the victim’s uncle, although he is only eight years older than the victim. At the time of the alleged assault, Respondent was twelve or thirteen and the victim was four or five. Due to premature birth and complications, Respondent is developmentally impaired and exhibits a maturity level below others his age.[1] The victim often spent time at Respondent’s house (the home of victim’s paternal grandmother) where Respondent, his younger brother, and victim played together and also took baths and showers together when victim spent the night.[2] It was during one of these showers that the victim claimed Respondent “raped” him.
The allegation arose in March 1999, in response to a story on the local news about a man arrested for indecent exposure. The victim’s mother testified that the victim saw the report and asked her why the man had “robbed” the children. The mother responded that the man had not “robbed” the children, but had “raped” the children, and then explained to her son what rape was.[3] The victim’s mother testified she told her son that rape of a boy “would be if someone was to touch him in an area that was covered by his swimsuit or his underwear, if someone was to touch his penis or play with his penis, or someone may try and stick [his] penis or something into his behind.” Immediately upon hearing this explanation, the victim’s mother said her son’s expression changed, and he told her, “well, [Respondent’s] done that to me before.”
Victim’s mother then testified she asked her son when and where this happened, and he responded that it had happened a while ago when he was in the shower with Respondent. Victim’s mother called her mother-in-law, Respondent’s mother, to inform her of her son’s accusation. Respondent’s mother put Respondent on the phone with the victim’s mother, and Respondent denied ever having done anything like that to the victim.
The victim’s mother filed a report with the police, and took victim to the Lexington County Children’s Center where a rape protocol was performed and counseling began. The doctor performing the rape protocol found no evidence of sexual assault, but testified this was not unusual with anal rape after significant time had passed. Victim’s counselor, Dr. Lake, a clinical psychologist, testified she believed Respondent had sexually assaulted victim.[4] During cross-examination of Dr. Lake, Respondent’s counsel discovered he had not received notes from the victim’s last four sessions with Dr. Lake. Respondent asked the judge for time to review them and then completed his cross-examination. In these last four sessions, victim reported he had been hearing voices in his head for some time. Victim told Dr. Lake he began hearing the voices of two men on his fourth birthday, and they continued until a month or so before trial. Victim told Dr. Lake the voices told him to say mean things to his friends and to hurt them, and that the voices told him he should have raped Respondent like Respondent had raped him.
Dr. Lake thought the voices might be auditory hallucinations and suggested to victim’s mother that he see a physician or a psychiatrist for diagnosis or treatment. Dr. Lake’s notes reflected, however, that the voices stopped shortly before trial. Dr. Lake attributed this change to medication victim began taking for attention-deficit and hyperactivity. The victim never saw a physician or a psychiatrist about the voices.
Prior to the hearing, Respondent filed a motion to have victim submit to a psychological evaluation. Apparently, that motion was denied. Following Dr. Lake’s testimony, Respondent moved again to have victim submit to a psychological evaluation based on the revelation that victim had been hearing voices during the period of time he alleged the assault occurred. That motion was denied. Respondent’s counsel also moved to have the victim’s testimony stricken as incompetent, based on the report of hearing voices. That motion was denied, as well.
At trial, the victim testified that Respondent raped him, explaining, in his own words, that Respondent “stuck his penis up my butt.”_ Respondent also testified at trial and denied that he had sexually assaulted the victim in any way.
The trial judge granted Respondent’s motion for directed verdict on the first degree CSC and kidnapping charges based on insufficient evidence, but found Respondent guilty of CSC with a minor and ordered him committed to the Department of Juvenile Justice (“DJJ”) until his twenty-first birthday. Respondent appealed and the Court of Appeals reversed and remanded for a new trial. In the Interest of Michael H., Op. No. 2002-UP-050 (S.C.Ct.App. Filed January 18, 2002).
The State then filed a Petition for Rehearing and Suggestion for Rehearing En Banc. In response, Respondent filed a Petition for Appeal Bond or in the Alternative for Writ of Supersedeas. By handwritten order, the Court of Appeals denied the Petition for Rehearing, but granted Respondent’s Petition for Appeal Bond. The Court of Appeals ordered Respondent to enter into a recognizance in the amount of $1000, with no less than one surety. The Court of Appeals provided further that the form of the bond and each surety thereon was to be approved by the Clerk of Court for Lexington County or the Clerk’s designee. The matter was remanded to the family court to set special conditions for the bond.
Subsequently, the State petitioned this Court for a stay of the Court of Appeals’ order granting bond, and for supersedeas review of the order. Justice Moore denied the petition on behalf of the Court on the ground that the Court of Appeals’ order was not appealable. On the same day, the family court set the conditions of the bond.
The Court granted certiorari to address the following issues:
I. Did the Court of Appeals err in holding that the family court judge abused his discretion in failing to order the victim to submit to a psychological examination, based on the report of auditory hallucinations discovered at trial?
II. Did the Court of Appeals act beyond its jurisdiction when it granted Respondent’s Appeal Bond
Law Analysis I. Psychological Examination
The State argues the Court of Appeals erred in holding that the family court judge abused his discretion in failing to order the child victim to submit to a psychological examination. We disagree.
As a preliminary matter, the State argues that this issue is not preserved for review. The State asserts trial counsel’s complaint was grounded in perceived discovery violations concerning the notes of Dr. Lake’s that had not been turned over to him. We disagree with this characterization of Respondent’s motions following Dr. Lake’s testimony. Critical information regarding the mental health of the child victim was uncovered in Respondent’s cross-examination of Dr. Lake. At the close of the State’s case, Respondent moved for a psychological evaluation based on this evidence. Obtaining the psychological evaluation, not pursuing the discovery violation, was the primary objective of Respondent’s motion. “Now we’d move, for one, to have this child go through a psychological evaluation prior to continuing with this case because, based upon testimony we’ve heard and what we’ve been given today, it’s highly likely that some voice told [victim] to say [Respondent] did this.”
It is well settled that an issue may not be raised for the first time on appeal. In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court. Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998). In other words, the trial court must be given an opportunity to resolve the issue before it is presented to the appellate court. Toal, Vafai, Muckenfuss, Appellate Practice in South Carolina, at 66 (S.C. Bar 1999). In this case, Respondent’s counsel raised the issue before trial, and then again during trial, at which point the trial judge explicitly denied the motion to have the victim submit to a psychological examination.
Whether or not a court can order a victim in a sexual assault prosecution to submit to a psychological examination is an issue of first impression in South Carolina. There is a split of authority in other jurisdictions on whether a court has the power to order a victim to submit to a psychological examination, and, then, if so, under what circumstances.
Several jurisdictions give the trial judge discretion to order a victim to submit to a psychological evaluation when the defendant can show compelling need for such an evaluation. The trial court’s denial or grant of the defendant’s request is then reversed only if the trial judge abused his discretion. Pickens v. State, 675 P.2d 665 (Alaska App. 1984); Koerschner v. State, 13 P.3d 451 (Nev. 2000); State v. Michaels, 642 A.2d 1372 (N.J. 1994)[5] ; Forbes v. State, 559 S.W.2d 318 (Tenn. 1977); State v. Delaney, 417 S.E.2d 903 (W.Va. 1992). In Delaney, the West Virginia Supreme Court adopted the following guidelines for the trial judge to employ in balancing the defendant’s need for the examination against the victim’s right to privacy:
[I]n order for a trial court to determine whether to grant a party’s request for additional physical or psychological examinations, the requesting party must present the judge with evidence he has a compelling need or reason for the additional physical or psychological examinations. In making the determination, the judge should consider (1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim’s age; (3) the resulting physical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant’s use.
Delaney, 417 S.E.2d at 907. In Delaney, the trial judge denied the defendant’s request for a psychological examination of the victims (three small girls). The Delaney court affirmed because the defendant failed to present “any reason, compelling or otherwise, to justify the examination,” although the court indicated “in many cases with similar circumstances, the trial court would be justified in allowing the examination.” Id. at 908. The defendant simply did not meet his burden of setting forth a compelling need.
Other courts have taken the position that compelling a victim to submit to a psychological examination violates the public policy designed to protect the victim’s right to privacy and to prevent further trauma to the victim. People v. Espinoza, 95 Cal.App.4th 1287 (Cal.App. 2002);[6] State v. Horn, 446 S.E.2d 52 (N.C. 1994). The North Carolina Supreme Court considered many of the same factors as the Delaney court, including the conflicting interests of the defendant and victim, before concluding “`the possible benefits to an innocent defendant, flowing from such a court ordered examination of the witness, are outweighed by the resulting invasion of the witness’ right to privacy and the danger to the public interest from discouraging victims of crime to report such offenses.'”Horn, 446 S.E.2d at 452 (quoting State v. Looney, 240 S.E.2d 612, 627
(1978)). The court commented further, “in balancing the rights of the victim and the defendant, . . . `zealous concern for the accused is not justification for a grueling and harassing trial of the victim.'” Id.
Although Horn raises valid concerns, we believe giving the judge discretion to order a child complainant to submit to an independent psychiatric evaluation, but only upon a showing of compelling need, sufficiently protects victims from unnecessary or traumatizing invasions of their privacy. Adopting the guidelines set out by the Delaney court, but limiting a trial judge’s discretion to ordering psychological
evaluations of child victims, provides boundaries for the exercise of discretion that protect the child victim’s rights to privacy and the defendant’s rights to a fair trial. We believe cases involving child victims could raise unique concerns that may necessitate a psychiatric examination of the child victim in order to protect the defendant’s right to a fair trial.[7] When the case against the defendant hinges on the testimony of a young child and there is some reason to question the child’s competence, a trial judge has discretion to order a psychiatric evaluation of the child victim after applying the Delaney factors to the facts of the particular case.
In the present case, Respondent’s counsel offered the questionable mental health of the child victim as the main reason he wanted the victim to submit to a psychiatric evaluation. Specifically, Respondent’s counsel cited the child victim’s admission of hearing voices in his head that told him to say and do mean things to his friends as justification for compelling the victim to undergo a psychiatric examination. Examined in light of the Delaney factors, the victim’s very young age (4 at the time of alleged assault and 6 at trial), the fact that the victim was undergoing counseling, and spoke freely of the incident (indicating he would not be further traumatized by another examination), and the fact the victim’s counselor testified victim was hearing voices during the year when victim alleged the assault occurred, the judge would have been within his discretion in ordering the victim to submit to an independent psychological examination.
Considering these circumstances, particularly the evidence regarding the victim’s possible auditory hallucinations, we affirm the Court of Appeals order to reverse Respondent’s conviction and remand for a new trial, but modify it by limiting the trial judge’s discretion to order a psychological examination to cases in which a child is the complaining victim. Upon remand, the court should consider any motion by Respondent for a psychological examination of the child victim in light of the Court’s resolution of this novel issue, applying the test developed i Delaney.
II. Appeal Bond
The State argues the Court of Appeals acted beyond its jurisdiction in granting Respondent’s motion for bond pending his appeal. We disagree.
South Carolina Code Ann. § 14-8-200(a) (Supp. 2001) states that the Court of Appeals shall have the same authority to grant petitions for bail as this Court would have in a similar case. Under South Carolina Code Ann. § 18-1-90 (1985), bail shall be allowed to the defendant in all cases in which the appeal is from the trial, conviction or sentence for a criminal offense.
Rule 221(b), South Carolina Appellate Court Rules (“SCACR”) indicates that the Court of Appeals retains jurisdiction until this Court grants or denies a petition for certiorari.
Where a petition for rehearing has been denied, the Court of Appeals shall not send the remittitur to the lower court until the time to petition for a writ of certiorari under Rule 226(b) has expired. If a petition for writ of certiorari is filed, the Court of Appeals shall not send the remittitur until notified that the petition has been denied. If the writ is granted by the Supreme Court, the Court of Appeals shall not send the remittitur.
Rule 221(b), SCACR (2002).
The State filed a Petition for Rehearing before the expiration of the fifteen days allotted in Rule 221, on February 4, 2002. On February 7, the Respondent filed a Petition for Appeal Bond pending the outcome of the State’s appeal from the Court of Appeals’ decision. The Court of Appeals denied the State’s Petition for Rehearing on February 21, 2002, and granted Respondent’s Petition for Appeal Bond on the same day. The Court of Appeals had not returned the remittitur when it granted the Respondent’s Petition for Appeal Bond, and this Court had not granted certiorari over the case yet. Therefore, we find the Court of Appeals retained jurisdiction over Respondent’s case, and acted within its authority when it granted Respondent’s petition.
Additionally, the State argues the Court of Appeals abused its discretion in admitting Respondent to bail by failing to consider what guidelines would be necessary to attempt to prevent Respondent from violating bond. We disagree.
The factors to be considered in admitting a person to bail pending appeal include the probability of reversal, the nature of the crime, the possibility of escape, and the character and circumstances of the appellant. Nichols v. Patterson, 202 S.C. 352, 25 S.E.2d 155 (1943). The Court of Appeals set the amount of Respondent’s bond ($1,000), and then remanded the matter to the family court of Lexington County for that court to set the conditions of his bond. The family court set numerous restrictive conditions on Respondent’s bond, including prohibiting Respondent from having unsupervised contact with children younger than twelve, and requiring him to take his prescribed medications, attend school, be under the supervision of his mother, school officials, or other responsible adult at all times, and to abide by a 6:00 p.m. curfew.
In our opinion, the conditions set by the family court indicate the guidelines for bail were considered before Respondent was released on bail.
Conclusion
For the foregoing reasons, we AFFIRM AS MODIFIED the Court of Appeals decision, reversing Respondent’s conviction and granting Respondent a new trial. In addition, we AFFIRM the Court of Appeals decision denying the State’s request to declare the appeal bond issued by the Court of Appeals null and void.
MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.