THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

The State, Respondent, 

v. 

Mark Baker, Petitioner. 

Appellate Case No. 2010-172951 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal From Sumter County 

The Honorable Howard P. King, Circuit Court Judge 

Opinion No. 27497 

Heard November 15, 2012 – Filed February 11, 2015 

REVERSED 

Appellate Defender Kathrine Haggard Hudgins, of Columbia, for 

Petitioner. 

Attorney General Alan McCrory Wilson, Chief Deputy Attorney 

General John W. McIntosh, Senior Assistant Deputy Attorney General 

Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., 

all of Columbia and Solicitor Ernest Adolphus Finney, III, of Sumter, 

for Respondent. 
 

 

 

JUSTICE BEATTY: Mark Baker was convicted of four counts of 

committing a lewd act upon a minor.1

 The Court of Appeals affirmed. State v. 

Baker, 390 S.C. 56, 700 S.E.2d 440 (Ct. App. 2010). Following the denial of his 

petition for rehearing, Baker petitioned this Court for a writ of certiorari to review 

the decision. We granted the petition to analyze whether: (1) the trial judge erred 

in refusing to quash the indictments, which alleged the offenses occurred over a 

six-year time frame; and (2) qualifying a witness as an expert in forensic 

interviewing. We reverse Baker's convictions as we hold the indictments were 

unconstitutionally overbroad.2 

I. Factual / Procedural History 

In October 2004, Victim Two, Baker's youngest niece, informed her mother 

that "Uncle Mark was messing with" her older sister, Victim One. At that time, 

Victim Two denied that Baker had molested her. 

On October 22, 2004, Baker was arrested on four counts of committing a 

lewd act upon a minor and one count of criminal sexual conduct with a minor in 

the second degree ("CSC"). At that time, the arrest warrants alleged the conduct 

involving Victim One occurred between: May 1, 2002 until September 1, 2002; 

1 See S.C. Code Ann. § 16-15-140 (2003) ("It is unlawful for a person over the age 

of fourteen years to wilfully and lewdly commit or attempt a lewd or lascivious act 

upon or with the body, or its parts, of a child under the age of sixteen years, with 

the intent of arousing, appealing to, or gratifying the lust or passions or sexual 

desires of the person or of the child."). We cite to the code section in effect at the 

time of the alleged offenses. However, we note this code section was repealed on 

June 18, 2012. 

2

 Based on our holding, it is unnecessary to address Baker's remaining issue 

regarding the qualification of the forensic interviewer as an expert witness. See 

Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 

591, 598 (1999) (holding an appellate court need not review remaining issues when 

its determination of a prior issue is dispositive of the appeal). However, we 

recently held that it is improper to qualify a forensic interviewer as an expert 

witness. See State v. Kromah, 401 S.C. 340, 357 n.5, 737 S.E.2d 490, 499 n.5 

(2013) ("[W]e state today that we can envision no circumstance where [a forensic 

interviewer's] qualification as an expert at trial would be appropriate. . . . Such 

subjects, while undoubtedly important in the investigative process, are not 

appropriate in a court of law when they run afoul of evidentiary rules and a 

defendant's constitutional rights."). 
May 1, 2003 until September 1, 2003; and June 1, 2004 until June 20, 2004. In 

January 2005, a Sumter County grand jury indicted Baker for the charges identified 

in the arrest warrants. In June 2006, as the case was coming up for trial, Victim 

Two came forward with a separate allegation that Baker abused her in 2002. In 

July 2006, Baker was indicted for committing a lewd act upon a minor for the 

claim made by Victim Two. 

However, after Victim One and Victim Two viewed photographs of a visit to 

Sumter in their aunt's scrapbook, Victim One recalled that the abuse began before 

the birth of her youngest sister in October 1998. Victim Two also testified that 

Baker abused her in 1998 before the birth of her youngest sister. Subsequently, the 

State presented a second set of indictments to the grand jury that alleged the lewd 

acts involving Victim One occurred between June 1, 1998 and September 1, 2004. 

The timing of the CSC charge remained the same. Additionally, the indictment 

containing the allegation involving Victim Two was amended to state that she was 

molested between June 1, 1998 and September 1, 1998 instead of 2002. On 

October 26, 2006, the grand jury true billed the amended indictments. 

On November 13, 2006, the case was called for trial. Prior to trial, Baker 

moved to quash the indictments on the ground they were unconstitutionally 

overbroad and vague. Baker explained that his ability to present a defense was 

hindered as the "broad brush [of the indictments] is not just summers of three years 

but really six and a half to seven years with no specificity." The trial judge denied 

the motion, finding the indictments were sufficient despite the lack of specific 

dates because the dates were not an essential element of the charges. 

Ultimately, the jury convicted Baker of the four counts of committing a lewd 

act upon a minor involving Victim One, but acquitted him of the fifth count of 

committing a lewd act upon a minor and CSC. The judge sentenced Baker to an 

aggregate sentence of thirty years' imprisonment. 

On appeal, the Court of Appeals affirmed Baker's convictions. State v. 

Baker, 390 S.C. 56, 700 S.E.2d 440 (Ct. App. 2010). In so ruling, the court found 

the indictments sufficient as time was not a material element of the charged 

offenses, the time period covered by the indictments occurred prior to the return of 

the indictments by the grand jury, and the indictments clearly identified the 

elements of the offenses and substantially tracked the statutory language so that the 

nature of the charged offenses could be easily understood. Id. at 62-64, 700 S.E.2d 

at 442-44. This Court granted Baker's petition for a writ of certiorari pursuant to 

Rule 242(a) of the South Carolina Appellate Court Rules. 
 

 

II. Standard of Review 

"In criminal cases, the appellate court sits to review errors of law only." 

State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (citations omitted). 

"We are bound by the trial court's factual findings unless they are clearly 

erroneous." Id. at 6, 545 S.E.2d at 829. 

III. Discussion 

Baker argues the Court of Appeals erred in affirming the circuit court judge's 

denial of his motion to quash the indictments. He contends the indictments were 

unconstitutionally overbroad and vague as the indictments alleged the offenses 

occurred at an unspecified time over a six-year period. As a result, Baker claims it 

was "virtually impossible to try and defend against accusations spanning such a 

vast period of time."3 

An indictment is a critical document in criminal defense preparation that is 

grounded in constitutional and statutory principles. See S.C. Const. art. I, § 11 

("No person may be held to answer for any crime the jurisdiction over which is not 

within the magistrate's court, unless on a presentment or indictment of a grand jury 

of the county where the crime has been committed . . . ."); S.C. Code Ann. § 17-

19-10 (2014) ("No person shall be held to answer in any court for an alleged crime 

or offense, unless upon indictment by a grand jury . . . ."). As we explained in 

State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005): 

The indictment is the charge of the state against the defendant, 

the pleading by which he is informed of the fact, and the nature and 

scope of the accusation. When that indictment is presented, that 

accusation made, that pleading filed, the accused has two courses of 

procedure open to him. He may question the propriety of the 

accusation, the manner in which it has been presented, the source 

from which it proceeds, and have these matters promptly and properly 

determined; or, waiving them, he may put in issue the truth of the 

accusation, and demand the judgment of his peers on the merits of the 

charge. If he omits the former, and chooses the latter, he ought not, 

when defeated on the latter, --when found guilty of the crime charged, 

3

 Baker makes no assertion that the indictments failed to correctly identify the 

statutory elements of the offense. Accordingly, our analysis is confined to the 

narrow issue of whether the six-year time frame was unconstitutionally overbroad. 
 

 

--to be permitted to go back to the former, and inquire as to the 

manner and means by which the charge was presented. 

Id. at 102, 610 S.E.2d at 499-500 (citations omitted) (emphasis added). 

If a defendant raises a timely challenge to the sufficiency of an indictment, 

the reviewing court is charged with: 

determining whether (1) the offense is stated with sufficient certainty 

and particularity to enable the court to know what judgment to 

pronounce, and the defendant to know what he is called upon to 

answer and whether he may plead an acquittal or conviction thereon; 

and (2) whether it apprises the defendant of the elements of the 

offense that is intended to be charged. 

Gentry, 363 S.C. at 102-03, 610 S.E.2d at 500 (emphasis added). "In determining 

whether an indictment meets the sufficiency standard, the trial court must look at 

the indictment with a practical eye in view of all the surrounding circumstances." 

State v. Tumbleston, 376 S.C. 90, 97, 654 S.E.2d 849, 853 (Ct. App. 2007). In 

doing so, "one is to look at the 'surrounding circumstances' that existed pre-trial, in 

order to determine whether a given defendant has been 'prejudiced,' i.e., taken by 

surprise and hence unable to combat the charges against him." State v. Wade, 306 

S.C. 79, 86, 409 S.E.2d 780, 784 (1991). 

In reviewing Baker's appeal, we focus our attention on Gentry as it is the 

seminal case in analyzing the sufficiency of an indictment. Specifically, Gentry 

sets forth two requirements that are relevant and dispositive in the instant case. 

The first being a defendant's right to question the manner in which the accusation 

has been presented, which Baker has done. The second, and most important here, 

is the Court's determination as to whether the offense is stated with sufficient 

certainty and particularity to enable the defendant to know what he is called upon 

to answer and whether he may plead an acquittal. 

Examining the indictments in the instant case in view of all the surrounding 

circumstances, we find Baker was prejudiced as he was undoubtedly taken by 

surprise and significantly limited in his ability to combat the charges against him. 

Simply stated, there was no way for Baker to know "whether he [could] plead an 

acquittal." Gentry, 363 S.C. at 103, 610 S.E.2d at 500. 

Approximately two weeks before trial, the State presented Baker's counsel 

with new indictments notifying Baker that he was being charged with offenses that 

allegedly occurred between June 1, 1998 and September 1, 2004; however, no 
 

 

temporal limitation is identified in the indictments. Prior to that date, Baker had 

prepared a defense over the course of a year based on the original indictments that 

alleged the criminal offenses were committed during the summers of 2002, 2003, 

and 2004. Thus, as a result of the new indictments, Baker was required to research 

and defend against events that occurred over a continuous six-year period as 

opposed to three identifiable summers. Despite the significantly expanded time 

frame, the new indictments were no more specific than the original indictments. 

Due to the State's belated presentation of the new indictments, Baker was 

given a mere two weeks to complete such an arduous task.4

 In addition to the time 

constraints, Baker's counsel noted the defense was hampered as Baker's 

employment records prior to July 2000 had been destroyed and, thus, he could not 

adequately establish Baker's whereabouts during the time frame identified in the 

indictments. Aside from this concrete example of prejudice, we are unable to 

discern how any defendant could effectively defend himself against a six-year time 

frame. More specifically, the only complete defense would be that of an alibi. As 

this Court has stated: 

The literal significance of the word 'alibi' is 'elsewhere'; as used in 

criminal law, it indicates that line of proof by which an accused 

undertakes to show that because he was not at the scene of the crime 

at the time of its commission, having been at another place at the time, 

he could not have committed the crime. In other words, by an alibi 

the accused attempts to prove that he was at a place so distant that his 

4

 The dissent assigns error to our analysis regarding the requirements for a 

sufficient indictment. Specifically, the dissent claims that we erroneously conflate 

the "concepts of notice with preparation." Although we disagree with the dissent's 

assignment of error to our analysis, we acknowledge that we discuss the concepts 

of notice and preparation in tandem. We believe this is the correct treatment of 

these concepts as the notice function of an indictment necessarily includes an 

assessment of whether an accused has the opportunity to prepare a defense. More 

specifically, a sufficient indictment must do more than merely recite the elements 

of the offense charged. As previously stated, the indictment must also contain 

sufficient factual allegations to permit the accused to know whether he may plead 

an acquittal or conviction thereon. Gentry, 363 S.C. at 102-03, 610 S.E.2d at 500. 

Thus, we believe that notice and preparation are inextricably linked concepts as 

"[f]airness and due process require that a criminal defendant receive sufficient 

notice of the charges against him to enable him to prepare a defense." In re Corey 

B., 291 S.C. 108, 109, 352 S.E.2d 470, 470 (1987). 
 

 

 

 

participation in the crime was impossible. To be successful, his alibi 

must cover the entire time when his presence was required for 

accomplishment of the crime. To establish an alibi, the accused must 

show that he was at another specified place at the time the crime was 

committed, thus making it impossible for him to have been at the 

scene of the crime. It is not enough for the accused to say that he was 

not at the scene and must therefore have been elsewhere. The latter 

statement does not constitute an alibi. And since an alibi derives its 

potency as a defense from the fact that it involves the physical 

impossibility of the accused's guilt, a purported alibi which leaves it 

possible for the accused to be the guilty person is no alibi at all. 

State v. Robbins, 275 S.C. 373, 375, 271 S.E.2d 319, 320 (1980) (quoting 21 Am. 

Jur. 2d Criminal Law § 136 (emphasis added)). Although the solicitor indicated 

that Baker did not submit an alibi defense, it is understandable as it would have 

been impossible for him to produce evidence of an alibi that would cover a sixyear period. 

Given the expansive time frame and lack of specificity as to this time frame, 

we can only conclude Baker was prejudiced by the defects in the indictments. 

Although we recognize the difficulty the prosecution faces in identifying exact 

dates in child sexual abuse cases, the class of criminal case should not translate 

into an exception that operates to circumvent constitutional and statutory 

principles. 

Accordingly, we hold the trial judge erred in refusing to quash the 

indictments as the non-specific, six-year period covered in the indictments was 

unconstitutionally overbroad because it lacked specificity as to when the alleged 

acts occurred. It is axiomatic that an indictment must include more than the 

elements of the charged offense. Therefore, we reverse Baker's convictions.5 

5

 We emphasize that our decision does not preclude the State from re-indicting 

Baker for the four counts of committing lewd act upon a minor that he was 

convicted by using appropriate time limitations for the charged offenses. Had the 

indictments alleged that the conduct occurred during the summer months of the 

years 1998 through 2004, i.e., June 1 until September 1, we believe the indictments 

would have been sufficient. 
 

REVERSED. 

HEARN, J. concurs. PLEICONES, J., concurring in result only. 

TOAL, C.J., dissenting in a separate opinion in which KITTREDGE, J., 

concurs. 
CHIEF JUSTICE TOAL: I respectfully dissent. In my view, the court of appeals 

did not err in upholding the trial court's refusal to quash the indictment. 

Furthermore, I would find that the trial court did not err qualifying a police officer 

as an expert in forensic interviewing. Thus, I would affirm Petitioner's convictions 

for lewd act. 

I. Indictments 

"The indictment is a notice document." State v. Gentry, 363 S.C. 93, 102– 

03, 610 S.E.2d 494, 500 (2005). As such, 

[T]he circuit court should judge the sufficiency of the indictment by 

determining whether (1) the offense is stated with sufficient certainty 

and particularity to enable the court to know what judgment to 

pronounce, and the defendant to know what he is called upon to 

answer and whether he may plead an acquittal or conviction thereon; 

and (2) whether it apprises the defendant of the elements of the 

offense that is intended to be charged. 

Id. (citation omitted); see also S.C. Code Ann. § 17-19-20 (2003) ("Every 

indictment shall be deemed and judged sufficient and good in law which, in 

addition to allegations as to time and place, as required by law, charges the crime 

substantially in the language of the common law or of the statute prohibiting the 

crime or so plainly that the nature of the offense charged may be easily understood 

. . . ."). Thus, "an indictment passes legal muster when it charges the crime 

substantially in the language of the statute prohibiting the crime or so plainly that 

the nature of the offense charged may be easily understood." State v. Tumbleston, 

376 S.C. 90, 98, 654 S.E.2d 849, 853 (Ct. App. 2007). 

Generally, when an indictment is challenged based on an overly broad time 

period, our courts have considered whether time is a material element of the 

offense and whether the time period covered by the indictment occurred prior to 

the return of the indictment by the grand jury. Id. at 98–99, 654 S.E.2d at 853–54. 

In State v. Wade, this Court unequivocally refused to adopt a per se rule of 

overbreadth for the mere fact that the time period covered in the indictment is 

lengthy. 306 S.C. 79, 85, 409 S.E.2d 780, 783 (1991). That case, like this case, 

involved allegations of sexual abuse perpetrated upon a minor who could not 

remember the exact dates that her uncle molested her. Id. at 84, 409 S.E.2d at 783. 
 

 

Thus, the indictment included a time period spanning two years. Id. at 81, 409 

S.E.2d at 781. To determine whether the petitioner was prejudiced by this lengthy 

time period, the Court declared it would examine the "'surrounding circumstances' 

that existed pre-trial, in order to determine whether a given defendant has been . . . 

taken by surprise and hence [is] unable to combat the charges against him," and not 

the mere fact that the indictment covers a longer time frame. Id. at 86, 409 S.E.2d 

at 784. 

Thus, the coverage of six years in these indictments does not necessarily 

require a finding of overbreadth; accordingly, I analyze each of the factors 

explicated in our precedents in turn. 

First, the language of the indictment substantially tracks the statutory 

language such that Petitioner was on notice of the charges he faced. Section 

16-15-140 of the South Carolina Code, defining lewd act, provides: 

It is unlawful for a person over the age of fourteen years to willfully 

and lewdly commit or attempt a lewd or lascivious act upon or with 

the body, or its parts, of a child under the age of sixteen years, with 

the intent of arousing, appealing to, or gratifying the lust or passions 

or sexual desires of the person or of the child. 

S.C. Code Ann. § 16-15-140 (2003 & Supp. 2012). In comparison, the amended 

indictments for lewd act state: 

That [Petitioner], a person over the age of fourteen (14) years, did in 

Sumter County between the period of June 1, 1998 and September 1, 

2004 violate Section 16-15-140 of the Code of Laws of South 

Carolina . . . in that . . . [Petitioner] did willfully and lewdly commit 

or attempt to commit a lewd and lascivious act upon or with the body, 

or any part or member thereof, of a child under the age of sixteen (16) 

years, to wit: [Victim 1] . . . , with the intent of arousing, appealing to, 

or gratifying the lust, passions or sexual desires of himself or of the 

said child.6 

Likewise, section 16-3-655 of the South Carolina Code, defining CSC with a 

Minor - Second, provides: 

6

 The indictment for count five of lewd act involving Victim 2 is substantially 

similar, but Petitioner was acquitted of that charge. 
 

(B) A person is guilty of criminal sexual conduct with a minor in the 

second degree if: (1) the actor engages in sexual battery with a victim 

who is fourteen years of age or less but who is at least eleven years of 

age; or (2) the actor engages in sexual battery with a victim who is at 

least fourteen years of age but who is less than sixteen years of age 

and the actor is in a position of familial, custodial, or official authority 

to coerce the victim to submit or is older than the victim. 

S.C. Code Ann. § 16-3-655 (Supp. 2007).7 Petitioner's CSC with a Minor - Second 

indictment states: 

That [Petitioner] did in Sumter County between the period of June 1, 

2004 and September 1, 2004, willfully and unlawfully commit 

criminal sexual conduct with a minor in the second degree by 

engaging in sexual battery with a minor who was at least fourteen (14) 

years of age but who was less than sixteen (16) years of age, to wit: 

[Victim 1] . . . and the actor was in a position of familial, custodial, or 

official authority to coerce the victim to submit or was older than the 

victim, to wit: vaginal digital intrusion and cunnilingus, in violation of 

Section 16-3-655(3) of the Code of Laws of South Carolina. . . . 

Because time is not an element of the offenses, and because the time period 

covered by the indictments occurred prior to the return of the indictments by the 

grand jury, we must look to the surrounding circumstances leading to the 

enlargement of time in the indictments. Tumbleston, 376 S.C. 90, 101–02, 654 

S.E.2d 849, 855 ("Indeed, indictments for a sex crime that allege offenses occurred 

during a specified time period are sufficient when the circumstances of the case 

warrant considering an extended time frame." (internal citations omitted)). To this 

end, the dates were extended in response to the child victims' collective 

recollection that the abuse began before the birth of their sister (in 1998) after 

viewing their aunt's scrapbook, but after the grand jury returned the initial 

indictments. Thus, these circumstances warranted broadening the time period to 

cover the years in which the abuse allegedly occurred (1998 until 2004), and under 

our existing framework, the indictments should be upheld. 

7

 Because Appellant was indicted on July 20, 2006, we cite to the section and 

language effective at the time of the indictments. Compare S.C. Code Ann. § 16-

3-655 (Supp. 2007), with S.C. Code Ann. § 16-3-655 (Supp. 2012). 
 

However, the majority focuses on the date the amended indictments were 

returned by the grand jury on October 26, 2006, in relation to the date the case was 

called for trial on November 13, 2006, to support its finding that the indictments 

were insufficient. In so holding, the majority erroneously conflates the concepts of 

notice and preparation. 

In my opinion, Petitioner's ability to prepare a more robust defense does not 

remotely figure into the notice paradigm. For this reason, the majority's focus on 

whether Petitioner had the opportunity to develop an alibi defense is completely 

inappropriate (and not just because Petitioner did not raise that argument himself). 

To me, such concerns are better addressed in a motion for trial continuance, which, 

incidentally, counsel for Petitioner filed for this exact reason in light of the 

enlarged scope of the indictments. For whatever reason, the motion was denied. 

Although Petitioner raised the propriety of the denial of this motion to the court of 

appeals (which affirmed), Petitioner has not raised the denial of the continuance to 

this Court. Thus, in my view, this was not a proper consideration on appeal. 

More importantly, I think today's precedent will gravely restrict the State's 

ability to prosecute child sex abuse cases. Here, as in most cases of child sex 

abuse, the State was attempting to prosecute numerous, covert sexual encounters 

occurring over the course of many years. Our appellate courts have heretofore 

been careful to fashion a rule which takes the relative immaturity, lack of 

sophistication, and trauma suffered by child victims into account, and has sought 

to balance these considerations with the court's obligation to also protect the 

constitutional rights of the criminal defendant. See, e.g., Tumbleston, 376 S.C. 

102, 654 S.E.2d at 855 ("The stealth and repetitive nature of the alleged conduct 

compels identification of the broader time period. The victim is a young child, 

whom one cannot reasonably expect to recall the exact dates of the sexual abuse."). 

I fear that today's ruling will greatly hinder the State's ability to bring future 

perpetrators to justice, as it is often impossible for a child to recall the exact date(s) 

he or she was abused. We have never required exacting specificity when 

upholding an indictment in this scenario before, and in my opinion, it is a mistake 

to add such a requirement now. 

Without a doubt, these indictments put Petitioner on notice of what charges 

he was "called upon to answer" and apprised him of the elements of the offenses 

the State intended to charge. Gentry, 363 S.C. at 102–03, 610 S.E.2d at 500. This 

is all that the law required. 
Accordingly, I would affirm the court of appeals' decision upholding the 

circuit court's denial of Petitioner's motion to quash the indictments. 

II. Expert Testimony 

Furthermore, I would find that while the trial court erred in qualifying 

Herod, a victim's assistance officer, the admission of this testimony did not cause 

prejudice to Petitioner. 

During trial, both girls testified against Petitioner. In addition, the State 

sought to qualify Gwen Herod as an expert in forensic interviewing and assessment 

of child abuse. The trial court conducted an in camera hearing to determine 

Herod's qualifications. Herod testified that she has been employed with the Sumter 

County Sheriff's Office since 1998 as a victim assistance officer. As part of her 

duties, Herod conducts forensic interviews of child victims of sexual abuse, usually 

at the behest of the investigating officer. 

The circuit court allowed the State to proffer Herod's testimony to determine 

whether she was qualified as an expert in the field of forensic interviewing. Herod 

stated that she is a certified forensic interviewer due to her training, which 

involved taking two one-week courses sponsored by the American Prosecutors 

Research Institute (APRI). Herod testified she obtained certification in 2001 after 

passing a written examination and conducting a mock interview under observation. 

In 2003, Herod attended another advanced week-long APRI course. Herod further 

testified that she is certified on a state and national level as a victim assistance 

specialist, and is a member of APRI, the National Organization for Victim 

Assistance, the South Carolina Law Enforcement Victim Advocate Association, 

the National Sheriffs' Association Victim Advisory Board, and the South Carolina 

Victim Assistance Network Advisory Board. Through the National Sheriffs' 

Association, she has trained other advocates across the nation. Under crossexamination, Herod acknowledged that she did not belong to an "association of 

forensic interviewers," she lacked a college degree, and her formal training was 

limited to the two APRI courses. Nevertheless, over Petitioner's objection, the 

circuit court qualified Herod as an expert in forensic interviewing. 

 Before the jury, Herod restated her background, and the circuit court again 

qualified her as an expert in forensic interviewing. Herod testified that since 2001, 

she has utilized the Rapport, Anatomy Identification, Touch Inquiry, Abuse 

Scenario, and Closure (RATAC) method to conduct forensic interviews of child 

victims of sexual abuse. Herod testified that in the "Rapport" stage, the 
interviewer "open[s] communication lines" with the child to "mak[e] the child feel 

at ease." Herod stated further that in this stage, the interviewer "also assess[es] the 

child, insuring that . . . that they're able to . . . to participate in the interview in a 

satisfactory way and . . . explain[s] to the child who [the interviewer is] and what 

[her] role is." In the "Anatomy Identification" stage, the interviewer shows 

pictures of the male and female anatomy to the child to ensure that she understands 

what body parts the child is describing, and explains to the child that he or she may 

use these pictures to circle and identify body parts throughout the interview. In the 

"Touch Inquiry" stage, Herod testified that the interviewer asks the child about the 

types of touching that the child deems acceptable, and the touches that make the 

child uncomfortable. In the "Abuse Scenario" stage, the child is asked to tell the 

interviewer about the circumstances of the abuse, and other information deemed 

necessary to the investigation. Finally, Herod testified that in the "Closure" stage, 

the interviewer ensures the child does not have any questions before ending the 

interview. 

Herod testified that she conducted an interview with Victim 1 on October 

21, 2004, using the RATAC method. During her testimony, Herod relayed that 

Victim 1 told her that the abuse occurred at her aunt and uncle's home in Sumter 

County during the summer months but that she could not recall the specific years 

of the abuse. Based on the interview, Herod recommended Victim 1 receive a 

medical exam. Herod also conducted a forensic interview with Victim 2 on the 

same date, and she denied being sexually abused by Petitioner at that time. During 

a follow-up meeting with the family, Victim 2 disclosed that Petitioner had abused 

her also, which prompted Herod to again meet with Victim 2 on June 26, 2006, to 

discuss the allegations. At the time, Victim 2 was unable to give an exact date for 

the alleged abuse, but later identified a time frame. 

Under cross-examination, defense counsel questioned Herod about the 

particular stages, and in regards to the Rapport stage, questioned Herod about her 

assessment of whether the child is telling the truth. In response, Herod stated that 

"we talk about [the importance of telling the truth] and I'm also assessing whether 

the child can even differentiate between the truth and a lie . . . . [b]ut we talk about 

the truth and the importance of it." 

"The qualification of an expert witness and the admissibility of the expert's 

testimony are matters within the trial court's discretion." Gooding v. St. Francis 

Xavier Hosp., 326 S.C. 248, 252, 487 S.E.2d 596, 598 (1997) (citation omitted). 

An appellate court will not disturb the trial judge's determination regarding a 
 

witness's qualifications to testify as an expert absent a showing of an abuse of 

discretion. State v. Schumpert, 312 S.C. 502, 505, 435 S.E.2d 859, 861 (1993) 

(citation omitted); State v. Henry, 329 S.C. 266, 273, 495 S.E.2d 463, 466 (Ct. 

App. 1997). "An abuse of discretion occurs when there is an error of law or a 

factual conclusion which is without evidentiary support." Gooding, 326 S.C. at 

252, 487 S.E.2d at 598 (citation omitted). 

Rule 702, SCRE, which governs the admission of expert testimony, 

provides: 

If scientific technical, or other specialized knowledge will assist the 

trier of fact to understand the evidence or to determine a fact in issue, 

a witness qualified as an expert by knowledge, skill, experience, 

training, or education, may testify thereto in the form of an opinion or 

otherwise. 

To be competent to testify as an expert, "a witness must have acquired by 

reason of study or experience or both such knowledge and skill in a profession or 

science that he is better qualified than the jury to form an opinion on the particular 

subject of his testimony." Gooding, 326 S.C. at 253, 487 S.E.2d at 598 (citation 

omitted). "Expert testimony differs from lay testimony in that an expert witness is 

permitted to state an opinion based on facts not within his firsthand knowledge or 

may base his opinion on information made available before the hearing so long as 

it is the type of information that is reasonably relied upon in the field to make 

opinions." Watson v. Ford Motor Co., 389 S.C. 434, 445–46, 699 S.E.2d 169, 175 

(2010) (citing Rule 703, SCRE). Defects in an expert witness's education and 

experience go to the weight, rather than the admissibility, of the expert's testimony. 

Gooding, 326 S.C. at 253, 487 S.E.2d at 598 (citation omitted). 

In State v. Kromah, we stated that we could "envision no circumstance 

where [a forensic interviewer's] qualification as an expert at trial would be 

appropriate." 401 S.C. 340, 357 n.5, 737 S.E.2d 490, 499 n.5 (2013); cf. State v. 

Douglas, 380 S.C. 499, 505, 671 S.E.2d 606, 609–10 (2009) (Pleicones, J., 

dissenting) ("[I]t was not only unnecessary but improper for the circuit court to 

qualify Herod as an expert witness" as "[t]his Court's jurisprudence and Rule 702 

of the South Carolina Rules of Evidence emphasize the role of the trial court as the 

gatekeeper in determining, among other things, whether the expert's testimony 

consists of scientific, technical, or specialized knowledge that will assist the trier of 

fact." (citations omitted)). 
Of course, the trial judge in the instant case did not have the benefit of the 

Kromah decision. While the majority did not address this issue in full, I take issue 

with its reliance on Kromah. See Kromah, 401 S.C. at 357 n.5, 737 S.E.2d at 499 

n.5. The facts of Kromah were categorically different from the facts here, and I 

would hold that Herod's qualification as an expert was harmless beyond a 

reasonable doubt. See id., 401 S.C. at 360, 737 S.E.2d at 501. 

Here, Herod never testified on direct examination about the victims' 

credibility. The only time her testimony could be construed to touch on the 

victims' credibility occurred while under cross-examination by Petitioner's 

counsel: 

Q: In regards to the . . . [R]apport stage, part of what you 

 emphasize to them is the importance of telling the truth don't you? 

A: Yes, sir. We talk about that and I'm also assessing whether the 

 child can even differentiate between the truth and a lie. 

Q: Okay. 

A: But we talk about the truth and the importance of it. 

Q: Right. 

A: Yes, sir, I did. 

Q: Okay. And you also did a forensic interview of [Victim 2] at 

 that time, is that correct? 

A: After [Victim 1]. 

Q: After [Victim 1]. 

A: The same day. 

Q: Both of those occurred on October 21st, 2004, right? 
 

A: That's correct. 

Q: When you . . . when you did the forensic interview on [Victim 1] 

 you emphasized to her in that standardized portion the importance 

 of telling the truth, didn't you? 

A: Yes, sir, I do in ever[y] interview. 

Q: Okay. And you did it then . . . if you did it with every interview[,] 

 you did it with [Victim 2]. 

A: I did. 

In my opinion, the majority should not have relied on Kromah. If Herod in 

any way improperly bolstered the victims' credibility, it was because Petitioner 

raised the issue of Herod's assessment of the veracity of the child victim in her 

methodology. Therefore, he cannot now complain that it was error. See State v. 

Robinson, 305 S.C. 469, 474, 409 S.E.2d 404, 408 (1991) (finding where 

"petitioner opened the door to . . . evidence, he cannot complain of prejudice from 

its admission"). The focus in Kromah was on testimony that improperly bolstered 

the child victim's testimony. To the extent the forensic interviewer's testimony 

does not touch on credibility, there is no reversible error. 

In my opinion, while the circuit court should not have qualified Herod as an 

expert, any error resulting from the inclusion of her testimony was harmless 

beyond a reasonable doubt. 

III. Conclusion 

For the foregoing reasons, I would affirm the court of appeals' decision 

upholding the circuit court's refusal to quash the indictments, and finding Petitioner 

suffered no prejudice despite Herod's qualification as an expert in forensic 

interviewing. 

KITTREDGE, J., concurs.