THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Richard Kenneth Galloway, Appellant.

Appellate Case No. 2018-001806

Appeal From Greenville County Perry H. Gravely, Circuit Court Judge

Opinion No. 5905 Heard December 6, 2021 – Filed April 20, 2022

AFFIRMED

Appellate Defe nder Joanna K. Delany, of Columbia, for Appellant.

Attorney General Alan Mc Crory Wilson and Senior Assistant Attorney General David A. Spencer, of Columbia, and Solicitor William W. Wilkins, III, of Greenville, for Respondent.

THOMAS, J.: Richard Kenneth Galloway appeal s his convictions of criminal
sexual conduct with a minor in the firs t degree and lewd act upon a child, arguing the trial court erred in (1) limiting the tes timony of his expert witness, (2) allowing the State's expert witness to testify about risk factors for childhood sexual abuse, (3) permitting the State's witness to tes tify about childhood sexual abuse dynamics and disclosures although she did not comp ly with a subpoena duces tecum, (4)admitting evidence of his alleged prior ba d acts against Victim's mother, and (5) admitting testimony in violation of the best evidence rule. We affirm.

FACTS

The events leading to Galloway's charge s occurred between Ja nuary 1, 1988, and July 31, 1990, and all charges concerne d the same victim (Victim). In 2016, Victim revealed a delayed disclosure of prior abuse. Investigator Robert Perry, who worked with GCSO's Crimes Agai nst Children Unit, interviewed Victim, Victim's mother, and other family members. After Perry conducted two interviews and a telephone call with Gallo way, Galloway was arrested . A jury trial was held in May 2018. Victim, who was thirty-n ine years old and had travelled from Missouri for the trial, testified she initia lly knew Galloway because he had been
married to her aunt.

During an in-camera hearing, Victim tes tified the first time Galloway abused her was at the University Inn in Greenville County, where he was babysitting her and
her brother. Victim alle ged Galloway reached into her pants and touched her vagina. According to Victim, Galloway cl aimed he mistook her for her mother in his sleep. Victim testified that under th e pretext of supervising her, Galloway insisted on helping Victim shower a nd would wash her buttocks, vagina, and breasts, telling her if he did not play with her breasts they would not grow. Victim
also discussed one occasion when Gallowa y took her into her mother's bedroom, laid her on the bed, removed her pants, a nd performed oral sex. Before the jury, Victim testified her mother, Patricia Wald rop, worked at a gas station convenience store. Victim testified Galloway began frequenting the store, and she similarly testified regarding the babysitting incident at the University Inn. The day after the first abuse, Victim told Waldrop what happened. Although Galloway did not babysit her and her brother for a long time, she, Waldrop, and Victim's brother later moved in with Galloway. Victim al so described abuse that occurred in North Carolina, stating when she was stacki ng wood into a truck, Galloway came up behind her, reached in to her underwear, a nd fondled her.

Victim testified Galloway's relationship with Waldrop "started out okay" but "just got bad fast." When Victim began to testify about physical fights between Waldrop and Galloway, Galloway objected under Rule 404(b), SCRE. The State replied it did not seek admission of th e disputed evidence under Rule 404(b); rather, it contended it was "relevant evidence." The trial court overruled Galloway's objection without specifying a re ason for its ruling. Victim testified Galloway would be violent wh en he was angry and had phys ical altercations withWaldrop. She recalled an incident when she tried to call 911 after a "really bad" altercation and Galloway, upon learning wh at she was doing, threatened to kill Waldrop.

Victim eventually again disclosed Gallo way's abuse to Waldrop and, shortly thereafter, she saw Galloway at the home of Waldrop's mother and Galloway told Victim if she did not forgive him he would go to hell. According to Victim, she responded, "I guess you're just going to go [to] hell." Although they never moved back in with Galloway, Gallo way continued to behave vi olently toward Victim and her family, and Victim testified that on different occasions, Galloway kidnapped her brother, drove "doughnuts" in their ya rd, attempted to run Victim and Waldrop off the road, and along with two other pe rsons, pulled Victim's biological father from his car, busted his face, and broke his ribs. According to Victim, she suffered from post-traumatic stress disorder (PTSD ) and schizoaffective disorder. She
attributed the PTSD as ar ising from the abuse.

Waldrop, who testified after Victim, corr oborated much of Victim's testimony. Waldrop also testified without objection that Galloway himself had corroborated
much of Victim's account of the first tim e Galloway abused her, claiming he woke up next to Victim and put his arm around her, thinking it was Waldrop. During her testimony, Waldrop referenced a letter that Galloway ha d written to her in which he expressed a desire for a reconciliation. When asked by the State to elaborate about what Galloway said in the letter, Waldrop said, "[h]e just talked to me about he was sorry that he's been abusive. " Galloway immediately objected on the grounds of hearsay and the best evidence rule. As to the best evidence rule, Galloway asserted, "If they're going to talk about the contents of the letter, they need the letter to prove it." The trial cour t asked if the letter wa s available, and the State replied there was no letter. Th e court allowed Waldrop to continue discussing it, reasoning her testimony was "based on state of mind." Waldrop testified that in the letter Galloway "apologized for being mean to us and he said he wouldn't do it anymore and he really wanted us to come back."

The State called Shauna Ga lloway-Williams, a licensed professional counselor and
the executive director of a child abuse and sexual assau lt recovery center. During an in-camera hearing, Galloway-Williams te stified about her qualifications, current employment, and risk factors of childhood abuse. 1 The State sought to have her

1 The factors identified by Galloway-Willia ms were age, disabilities, emotional problems, behavioral problems, substa nce abuse, poverty, violence, and single-parent homes, particularly t hose with live-in caregivers.qualified as an expert in childhood sexua l abuse dynamics and disclosure pursuant to Rule 702, SCRE. Galloway objected, arguing the subject matter was not beyond the ordinary knowledge of the jury, Ga lloway-Williams was not qualified as an expert to testify regarding the issues for which her testimony was being offered, and her testimony was not relia ble. Galloway requested th e trial court "exercise its gatekeeping role under [Rule] 702[, SCRE]." Galloway further complained that
the week before trial he had sent Galloway-Williams a subpoena duces tecum directing her "to bring with her to court . . . all the articles, publications, treatises, books, manuals, [and] data that she would be relying upon." However, she brought only one article about forensic interviewi ng. The trial court qualified her as an
expert.

Before the jury, Galloway-Williams testified that one risk factor for childhood sexual abuse was a single-parent household with a live-in caregiver. Galloway-Williams also identified common reasons that a child victim would delay reporting abuse. One such factor was the child 's awareness that disclosure could result in consequences to the child and the child's family. According to Galloway-Williams, "these consequences ma y be based on unrealized fears or they may be based on thr eats that were made

. " As to the subpoena, Galloway-Williams explained it would have been impossible to bring all of the publications she based her opinions on, and the article on forensic interviewing that she provided to the defense before trial gave a good overview and a lengthy bibliography of the topics
related to child abuse. Although Galloway-Williams c onceded the article was "called forensic interviewing," she not ed it included a subsection on delayed reporting.

Galloway did not testify on hi s own behalf; however, he proffered Dr. David Price, a forensic psychologist and forensic neuropsychologist, as an expert witness in general psychology, specifically in PTSD and schizoaffective disorder. During an in-camera hearing in whic h Dr. Price discussed his qualifications and proposed testimony, he testified on direct examina tion that it was possible for someone to have a false memory of abuse but the r easons for such an oc currence varied among individuals. On cross-examination, Dr. Price conceded that although it was possible that someone who was "schizoa ffective now . . . could possibly . . . misrepresent something in their mind," su ch a misrepresentation could also occur
in the absence of a schizoaffective diso rder. Dr. Price also clarified he was testifying as a blind expert, had not eval uated Victim and was not testifying about anything in detail about her, and was theref ore not able to state there was anything in her past that would have made her more likely to have false memories. Price explained he could not give an expert opinion about Victim without eitherevaluating her or reviewing her medical records and other relevant documents.
The trial court allowed Dr. Price to tes tify as an expert but prohibited him from testifying about false memory and repres sed memory because he had not evaluated Victim. Dr. Price's jury testimony included a statement that po ssible symptoms of
schizoaffective disorder include delusi ons or hallucinations and that someone suffering from PTSD may ha ve distorted memories.

The jury convicted Galloway of one char ge of criminal sexual conduct on a minor in the first degree (CSC) 2 and of lewd act on a minor . The trial court sentenced Galloway to consecutive sentences of thirty years' imprisonment for first-degree CSC and ten years for lewd act on a mino r. The court denied Galloway's motion
for reconsideration of his senten ce. This appeal followed.

STANDARD OF REVIEW

"In criminal cases, we review the decisi ons of the trial court only for errors of
law." State v. Gilmore , 396 S.C. 72, 77, 719 S.E.2d 688, 690 (Ct. App. 2011). "Therefore, an appellate c ourt is bound by the trial court's factual findings unless they are clearly erroneous." State v. Banda , 371 S.C. 245, 251, 639 S.E.2d 36, 39 (2006). Thus, "this [c]ourt is limited to determining whether the trial court abused
its discretion." State v. Edwards , 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009). An appellate court "does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence." Id.

LAW/ANALYSIS

I. LIMITATION ON DR. PRICE'S TESTIMONY

Galloway argues the trial cour t erred in prohibiting Dr. Price from testifying that
schizoaffective disorder could cause fals e memories because, despite finding the subject matter of the testimony was beyond th e ordinary knowledge of the jury and Dr. Price had acquired the knowledge to be qualified as an expert, the court failed to give due consideration to the relia bility of the testimony regarding false memory. Thus, Galloway contends the tr ial court abandoned its gatekeeping duty to consider all three pre liminary prerequisites of Rule 702, SCRE. We find no
reversible error.

2 The jury acquitted Galloway of one CS C charge and was unable to reach a unanimous verdict on the remaining CSC charge."If scientific, technical, or other specializ ed knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a wi tness qualified as an expert by knowledge, skill, experience, trai ning, or education, may testify thereto in the form of an opinion or otherwise. " Rule 702, SCRE. "All expert testimony must satisfy the Rule 702 criteria, and th at includes the trial court's gatekeeping function in ensuring the proposed expert testimony meets a reliability threshold for the jury's ultimate consideration." State v. White , 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009). Before admitting expert te stimony, the trial court must determine the following: "(1) whether th e evidence will assist the trie r of fact; (2) whether the expert has acquired the requisi te knowledge and skill to qualif y as an expert in that particular subject matter[;] and (3) whether the substance of the testimony
is reliable." State v. Jones , 423 S.C. 631, 636, 817 S.E. 2d 268, 270 (2018). "The appellate court reviews a tr ial [court's] ruling on admissibility of evidence pursuant to an abuse of discretion standard and gi ves great deference to the trial court."

State v. Torres , 390 S.C. 618, 625, 703 S. E.2d 226, 230 (2010).

Galloway concedes the trial court perform ed the first two requirements of its gatekeeping function by finding the subj ect matter of the testimony was beyond the ordinary knowledge of the jury a nd by finding Dr. Price had acquired the knowledge to be qualified as an expert. Galloway argues the tr ial court erred in failing to give due consideration as to th e third requirement, whether the substance of the testimony is reliable. We find th e trial court consider ed the evidence for reliability. Although Dr. Price indicated sc hizoaffective disorder could result in false memories, he also acknowledged fals e memories could occur in the absence of the disorder, which casted doubt on a causal link. Fu rthermore, Dr. Price stated
he would need to evaluate Victim, or at least review her records, to opine on whether Victim's memories of the alleged a buse were false. In addition, because of the absence of any evidence that Victim fabricated or otherwise imagined her recollections of her past abuse, its prob ative value would have been substantially outweighed by the possibility that it would confuse the issues or mislead the jury. Under these circumstances, we find the re striction on Dr. Price's testimony was
within the trial court's discretion. Id. (stating an appellate court reviews decisions regarding the admissibility of evidence under an abuse of discretion standard); Rule 403, SCRE (allowing re levant evidence to be excl uded if its probative value would be substantially outweighed by othe r factors, including confusion of the issues or misleading of the jury).

II. RISK FACTORS OF CH ILDHOOD SEXUAL ABUSEGalloway argues the trial court abused its discretion in allowing GallowayWilliams to testify as an expert about the risk factors of childhood sexual abuse because the subject matter of the te stimony was not beyond the ordinary knowledge of the jury. We disagree.

In State v. Weaverling , 337 S.C. 460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999), this court found expert testimony regardin g "common behavioral characteristics of sexual assault victims and the range of responses to sexual assault encountered by experts" was admissible. Ou r court found "[s]uch testim ony is relevant and helpful in explaining to the jury the typical behavior patterns of adolescent victims of
sexual assault." Id. at 475, 523 S.E.2d at 794. In Jones , 423 S.C. at 636, 817 S.E.2d at 271, our supreme court likewis e found "the law in South Carolina is
settled: behavioral characteristics of sex abuse victims is an area of specialized knowledge where expert tes timony may be utilized." In addition, the court found expert testimony on "the behavior of n onoffending caregivers" was "contrary to what a reasonable person would expect." Id. at 637, 817 S.E.2d at 271. Thus, it affirmed the trial court's finding that the testimony "fell outside the scope of lay knowledge and was therefore admissible." Id. Most recently, in State v. Acker

, Op. No. 5892 (S.C. Ct. App. filed Jan. 19, 2022) (Howard Adv. Sh. No. 3 at 48, 54-55), this court found an expert's testimony concerning risk factors such as substance abuse in the home, a child's age, a child's special needs or disabilities, and behavioral problems were beyond the or dinary knowledge of the jury. We
likewise find the risk factors associated with childhood abuse admitted in this case were not likely to be within the common knowledge of jurors. Thus, we find the
trial court did not abuse its discre tion in admitting the evidence.

III. FAILURE TO COMPLY WI TH SUBPOENA DUCES TECUM

Galloway argues the trial cour t erred in qualifying Galloway-Williams as an expert and allowing her to testify despite her failure to comp ly with his subpoena duces tecum requesting articles and publications on which her opinions were based. We disagree.

In Jones , the court considered whether it wa s error to admit expert testimony where Jones alleged "there was no evidence demonstrating [the] opinions were
accurate or reliable . . . [and the expert] failed to id entify or name any studies supporting her opinions, nor did she state whether any of the literature she relied on had been peer reviewed." 423 S.C. at 638, 817 S.E.2d at 271–72. Our supreme
court found no error where the "testim ony focused on explaining the concept of delayed disclosure and the role of nono ffending caregivers in the dynamics ofsexual abuse." Id. at 639, 817 S.E.2d at 272. Although the expert in Jones "did not identify by name the articles serving as the basis for her opinions, she indicated she could provide citations if given an opportunity to gather them." Id. In addition, "she explained her opini ons were supported by peer-reviewed professional journals and trade publicatio ns, all of which were uniformly accepted and recognized by child sexual abus e experts and professionals." Id.

At trial, Galloway-Williams testified at length regarding her qualifications as a licensed professional counselor, provided a source with an overview of the topics she was expected to testify about, and explained it contained an extensive bibliography of the topics related to child abuse. We find th e trial court acted within its discretion in qua lifying her as an expert w itness regardless of whether she fully complied with the subpoena duces tecum. See State v. Morris , 376 S.C. 189, 203, 656 S.E.2d 359, 367 ( 2008) ("The qualification of a witness as an expert is a matter largely within the trial court's discretion and will not be reversed absent an abuse of that discretion.").

IV. EVIDENCE OF PRIOR VIOLENCE

Galloway argues the trial c ourt erred in admitting testimony about his violent behavior toward Waldrop, claiming the evidence was prior bad act evidence that did not fall within any of the exceptions enumerated in Rule 404(b), SCRE or State

v. Lyle , 125 S.C. 406, 118 S.E. 803 (1923), and the trial c ourt failed to conduct the mandatory balancing analysis. We find no reversible error.

When Victim initially testified about Ga lloway's violent acts toward Waldrop, Galloway objected under Rule 404(b), SCRE. The State replied it did not seek admission of the disputed evidence under Rule 404(b); rather, it contended it was
"relevant evidence." The trial court overruled Gallowa y's objection and allowed Victim to testify. Galloway acknowledge s he did not object to the admission of other evidence of bad acts later admitted, but he argues the other evidence admitted did not prejudice him because it supported his theory that Victim was making "outlandish" accusations and fabricating events.

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in co nformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE. "To be admissible, the bad act must logically rela te to the crime with which the defendant has been charged. If the defendant was no t convicted of the prior crime, evidenceof the prior bad act must be clear and convincing." State v. Fletcher , 379 S.C. 17, 23, 664 S.E.2d 480, 483 (2008).

"As a threshold matter, the trial [court] must initially determine whether the proffered evidence is relevant . . . ." State v. Clasby , 385 S.C. 148, 154, 682 S.E.2d 892, 895 (2009). Once the court finds the evidence is relevant, it must then
determine if it fits within one of the enumerated exceptions to Rule 404(b). Id. at 154–55, 682 S.E.2d at 895. If the court finds the prior bad act evidence is clear and convincing and falls within an exce ption, it must then determine if its probative value is substantially outweighe d by the danger of unfair prejudice to the
defendant. Id. at 155–56, 682 S.E.2d at 896. This requires the trial court to conduct a balancing test, "which must be based on the entire record." State v.
Scott , 405 S.C. 489, 506, 748 S.E.2d 236, 245 (Ct. App. 2013) (quoting Clasby

, 385 S.C. at 156, 682 S.E.2d at 896). A trial court's failure to conduct the balancing
test is error. State v. Spears , 403 S.C. 247, 254, 742 S.E.2d 878, 881 (Ct. App. 2013). However, this error is subj ect to a harmless error analysis. See State v. King , 424 S.C. 188, 201, 818 S.E.2d 204, 211 (2018) (applying harmless error analysis where trial court erred in fa iling to conduct a Rule 404(b) analysis before admitting prior bad acts evidence).

In this case, although we agree with the trial court admission of the evidence
because we find it was relevant to Victim 's delayed disclosure , we find the trial court erroneously failed to conduct a balancing test. Ho wever, we find the court's error was harmless because many other instances of Galloway's violence were admitted without objection. Victim te stified without objection that Galloway broke into a hotel room and kidnapped he r younger brother. Victim and Waldrop both testified Galloway drove his truck in to the yard "doing doughnuts." Victim testified Galloway attempted to run her mo ther's car off the road and once chased
them in the car. Victim also recounted an incident in which Galloway pulled her father from a vehicle, busted his face, and broke his ribs. Waldrop testified Galloway shot at their duplex, harassed her at work, and beat up her boss. Because so many other instances of Galloway's vi olence were admitted without objection, we find any error in failing to conduct a Rule 404(b) analysis when admitting Victim's initial testimony about Ga lloway's violence was harmless. See State v.

Kirton , 381 S.C. 7, 37–38, 671 S.E.2d 107, 122–23 (Ct. App. 2008) (stating the
admission of inadmissible evidence is ha rmless where it is merely cumulative to other evidence that is admitted without objection).

V. GALLOWAY'S LETTERGalloway argues the trial cour t erred in permitting Waldrop to testify about a letter Galloway allegedly wrote to her without producing the le tter. We find no
reversible error.

During testimony questioning Waldrop's thoughts and consideration of returning to Galloway, she testified Galloway wrote he r a letter in which "he apologized for being mean to us and he wouldn't do it anym ore and he really wa nted us to come back." The State responded, "there is no letter, so there's no way to have better
evidence . . . ."

"The question of whether to adm it evidence under [Rules 1001 to 1004, collectively known as the best evidence rule,] is . . . addressed to the discretion of
the trial court." State v. Mitchell , 399 S.C. 410, 421, 731 S.E.2d 889, 895–96 (Ct. App. 2012) (alteration in original) (quoting State v. Halcomb , 382 S.C. 432, 443– 44, 676 S.E.2d 149, 154–55 (Ct. App. 2009)). "To prove the content of a writing, recording, or photograph, the original writi ng, recording, or photograph is required, except as otherwise provided in these ru les or by statute." Rule 1002, SCRE. However, under Ru le 1004, SCRE,

The original is not required, and other evidence of the contents of a writing, recording, or photograph is
admissible if-- (1) Originals Lost or Destroyed. . . ; or (2) Original Not Obtainable. . . ; or (3) Original in Possession of Opponent. . . ; or (4) Collateral Matters. Th e writing, recording, or photograph is not closely related to a controlling issue.

The letter referred to abusiv e behavior against Victim's mother, not sexual abuse of Victim, which was the controlling issue. Thus, the original letter is not required
because it referenced a colla teral matter under Rule 1004( 4), SCRE. Furthermore,
even if the admission of the letter was error, we find it was harmless error. See Matter of Bilton , 432 S.C. 157, 167, 851 S.E. 2d 442, 447 (Ct. App. 2020) (explaining if improper eviden ce is admitted, "the next st ep is to determine whether the erroneous admission qualif ies as a harmless error"); id. (explaining the analysis
to determine if the erroneous admission of evidence was harmless requires the
court to decide if the error contributed to the guilty verdict). In this case, any error in admitting the letter was harmless as cumulative based on the many other
instances of violence adm itted without objection. See Kirton , 381 S.C. at 37–38,671 S.E.2d at 122 (stating the admission of inadmissible evidence is harmless where it is merely cumulative to other ev idence that is admitted without objection).

CONCLUSION

Based on the foregoing, Galloway's convictions are

AFFIRMED.

GEATHERS, J., and HUFF, A.J., concur.