State v. Berry

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Stephen Douglas Berry, Petitioner.

Appellate Case No. 2015-002580

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Union County

The Honorable John C. Hayes, III, Circuit Court Judge

Opinion No. 27690

Submitted November 17, 2016 – Filed December 7, 2016

AFFIRMED AS MODIFIED

League B. Creech, of Peters, Murdaugh, Parker, Eltzroth
& Detrick, P.A., of Hampton, and Chief Appellate
Defender Robert Michael Dudek, of Columbia, for
Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia, for Respondent.
[PER CURIAM]: Petitioner seeks a writ of certiorari to review the Court of
Appeals' decision in State v. Berry, 413 S.C. 118, 775 S.E.2d 51 (Ct. App. 2015).
We grant the petition, dispense with further briefing, and affirm the Court of
Appeals' decision as modified.

Petitioner was convicted of criminal sexual conduct with a minor, second degree.
At trial, the State called Kim Roseborough (Roseborough) who was qualified as an
expert in the field of "child sexual abuse assessment and treatment." The relevant
section of Roseborough's testimony consisted of three distinct parts: (1) testimony
regarding the victim's demeanor witnessed by Roseborough during therapy; (2)
testimony explaining and discussing delayed disclosure as part of the Child Sexual
Abuse Accommodation Syndrome; and (3) testimony addressing trauma associated
with sexual abuse and post-traumatic stress disorder (PTSD).

During the first portion of Roseborough's testimony, the State asked, "Were the
circumstances of [the victim's] disclosure . . . consistent with the disclosure of
sexual abuse?" Trial counsel objected, citing State v. Kromah, 401 S.C. 340, 737
S.E.2d 490 (2013) as grounds for the objection. The trial judge sustained the
objection, finding such a question solicited Roseborough's opinion on whether the
victim was telling the truth.

During the second portion of her testimony, Roseborough explained why victims
of child sexual abuse often choose to delay disclosing abuse. The State asked if
any factors were present in the victim's case which might have led to her delaying
disclosure of the alleged abuse. The trial court sustained trial counsel's objection
to this question.1 The solicitor continued to try and ask, in many different ways,
what factors of delayed disclosure were demonstrated by the victim. Trial counsel
continued to object, without stating his grounds, and these objections were all
sustained. At no point during the first two portions of Roseborough's testimony
did trial counsel move for a mistrial, curative instructions, or to strike the
testimony solicited immediately prior to a sustained objection.

Finally, the State introduced the third part of Roseborough's testimony discussing
the trauma associated with sexual abuse and possible PTSD resulting from that
trauma. The solicitor asked Roseborough about the typical symptoms of trauma
exhibited by a child who suffered sexual assault. Roseborough's answer discussed

1
The jury was excused so that the attorneys could argue this objection. The record on appeal is
missing five pages containing a majority of this discussion, therefore, only part of the
conversation was available for review by this Court.
symptoms of trauma, including PTSD. Trial counsel objected and approached the
bench for an off the record conference. After the conference, neither the grounds
for the objection nor the trial judge's ruling were placed on the record, and
Roseborough continued to testify about trauma and PTSD. Specifically,
Roseborough testified to the trauma symptoms a child would tend to show after
being sexually abused and began to explain the trauma symptoms she observed in
the victim. After discussing three such symptoms demonstrated by the victim, trial
counsel objected, but the objection was overruled. Roseborough went on to
explain that she referred the victim to a psychiatrist because she exhibited many of
the criteria for diagnosing PTSD listed in the Diagnostic Statistical Manual and,
that in her opinion, the victim suffered from PTSD.

After the State concluded its case-in-chief, trial counsel placed the objection,
discussed at sidebar during the third portion of Roseborough's testimony, on the
record. Trial counsel argued there was no evidence of Roseborough's
qualifications to diagnose PTSD; specifically, trial counsel asserted Roseborough
was qualified as a social worker and not a medical doctor. The trial judge
reiterated his sidebar determination that you do not need to be a medical doctor to
diagnosis PTSD.

The Court of Appeals found the issue of whether Roseborough's testimony
regarding trauma symptoms and PTSD violated the directives established in
Kromah preserved for appeal. In coming to this conclusion, the Court of Appeals
found the specific grounds for petitioner's objection to questions regarding trauma
symptoms and PTSD were apparent from the context given his objections to the
first two portions of Roseborough's testimony. On the merits, the Court of Appeals
found the trial court did not abuse its discretion in allowing Roseborough to testify
regarding behaviors she observed in the victim and the symptoms of PTSD.

However, we find any issues regarding Roseborough's testimony, other than her
discussion of symptoms of trauma associated with sexual assault and PTSD, are
not preserved for review because petitioner's objections were sustained and trial
counsel did not take any further measures to have the testimony stricken from the
record, curative instructions given, or a mistrial granted. See State v. Wilson, 389
S.C. 579, 698 S.E.2d 862 (Ct. App. 2010) ("Appellate courts have recognized that
an issue will not be preserved for review where the trial court sustains a party's
objection to improper testimony and the party does not subsequently move to strike
the testimony or for a mistrial," because "without a motion to strike or motion for a
mistrial, when the objecting party is sustained, he has received what he asked for
and cannot be heard to complain about a favorable ruling on appeal."); see also
State v. Byers, 392 S.C. 438, 710 S.E.2d 55 (2011) ("When a witness answers a
question before an objection is made, the objecting party must make a motion to
strike the answer to preserve the issue of the statement's admissibility.").

Additionally, to the extent petitioner asserts error in Roseborough's testimony
regarding symptoms of trauma and PTSD, the record clearly shows that the only
objection made to that portion of Roseborough's testimony was based upon her
qualifications to diagnose PTSD. As such, petitioner's current arguments regarding
that portion of Roseborough's testimony were not properly before the Court of
Appeals, should not have been ruled upon, and are not properly before this Court.
See State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011) (noting for an issue to be
properly preserved, it has to be raised to and ruled upon by the trial court); State v.
Dunbar, 356 S.C. 138, 587 S.E.2d 691 (2003) (holding a party may not argue one
ground at trial and another ground on appeal).

Accordingly, we vacate the Court of Appeals' analysis, but affirm on the grounds
set forth above.

AFFIRMED AS MODIFIED

PLEICONES, C.J., BEATTY, KITTREDGE, HEARN and FEW, JJ., concur.