THE STATE OF SOUTH CAROLINA In The Supreme Court

In the Matter of the Care and Treatment of Gilbert Gonzalez, Petitioner. 1

Appellate Case No. 2012-210606

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Charleston County
The Honorable Deadra L. Jeffe rson, Circuit Court Judge

Opinion No. 27443 Heard February 4, 2014 – Filed September 3, 2014

AFFIRMED AS MODIFIED

Appellate Defender LaNelle Cantey DuRant, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney Ge neral Deborah R.J. Shupe, and Chief Deputy Attorney Ge neral John W. McIntosh, all of Columbia, for Respondent.

1 Gonzalez maintains his last name is Z ubia but that it was erroneously entered as
Gonzalez when he was incar cerated. Both variations appear in the record.JUSTICE BEATTY: Gilbert Gonzalez was found by a jury to meet the definition of a sexually violent predator (SVP) under South Carolina's SVP Act,
S.C. Code Ann. §§ 44-48 -10 to -170 (Supp. 2013). The Court of Appeals
affirmed. In re the Care & Treatment of Gonzalez , Op. No. 2012-UP-003 (S.C. Ct. App. filed Jan. 4, 2012). On certiorari, Gonzalez contends the Court of Appeals erred in affirming his SVP status because the State inappropriately asserted during closing argument that the jury could draw an adverse inference at trial from the absence of a psychiatrist Gonzalez retained to perform an independent evaluation.
We affirm as modified.

I. FACTS

The predicate for Gonzalez's refe rral to the SVP program was his convictions for offenses involving three young girls who were four, five, and six. Gonzalez pled guilty on June 4, 1985 to committing a lewd act on a minor for lifting up the skirt of a four-year-old and f ondling her. He was sentenced to nine months in prison. Gonzalez was alrea dy on parole for anot her crime when he
committed the lewd act offense.

On June 3, 1985, the day before hi s guilty plea to the above offense, Gonzalez fondled a five-year-old girl. On April 28, 1986, while again out on bond, Gonzalez engaged in oral sex with a six- year-old girl, fondled her, and rubbed her genital area with his penis until he ejacu lated. On November 5, 1986, Gonzalez pled guilty to lewd act on a minor for the offense against the five-year-old and to criminal sexual conduct (CSC ) with a minor in the fi rst degree for the offense involving the six-year-old. Gonzalez was sentenced to thirty years in prison on the CSC charge and a consecutive ten year s in prison for the lewd act.

In January 2006, prior to Gonzalez's potential release, the multidisciplinary team found there was probable cause to believe Gonzalez was an SVP and referred the matter to the prosecu tor's review committee. See S.C. Code Ann. § 44-48

- 30(1)(a)-(b) (Supp. 2013) (defining an SV P as "a person who: (a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the pe rson likely to engage in acts of sexual
violence if not confined in a secure f acility for long-term control, care, and treatment").

The committee agreed with this finding and filed a petition in the circuit court for civil commitment proceedings. Th e circuit court made a determination ofprobable cause and appointed Dr. Pamela Crawford to perform a psychiatric
evaluation of Gonzalez. The circuit court thereafter gran ted Gonzalez's request to have an independent psychiatric evaluation performed by Dr. Thomas V. Martin.

A trial was held in the circuit court in February 2009. Dr. Crawford testified on behalf of the State and stated that, af ter examining Gonzalez and reviewing all of the pertinent records in his file, she had diagnosed him as having pedophilia and an anti-social personality disorder.

Dr. Crawford stated that pedophilia ca nnot be cured, but part of controlling it is for the individual to recognize the cond ition and to learn specific ways to resist inappropriate conduct. Dr. Crawford testif ied that she had a real concern regarding Gonzalez's risk for reoffending because, although he pled guilty to three charges, he maintained he did not "recall" doing cer tain acts of a sexual nature with the victims, and he stated that his sexual misconduct was caused by an ex-girlfriend who had become angry with him and put a spell on him. She stated the only crime that Gonzalez clearly admitted to her was the CSC offense on the six-year-old, and her review of the laboratory data from SLED showed Gonzalez's semen was found in the vagina and vulva of that victim.

Dr. Crawford testified pedophilia is a "hard-wired sexual attraction to children" and that a person has to adm it responsibility for past misconduct and must "be very, very motivated" to combat this predisposition in order to reduce the risk of committing future acts of sexual vi olence against very young children. Dr. Crawford additionally noted that Gonz alez "had four major disciplinary infractions" during his incarceration, which also indicated a propensity for violence and an inability to control his behavior, even when incarcerat ed. Dr. Crawford stated in her medical opinion Gonzalez me t the criteria for designation as an SVP, and he was in need of long-term control, care, and treatment at a secured facility.

During his testimony, Gonzalez acknowledge d that he had pled guilty to the offenses involving sexual mi sconduct, but he denied full responsibility as he variously contended that he did not commit the crimes or that he did not commit all
of the elements of the crim es. Gonzalez repeatedly ma intained that he had been under a spirit or spell that had been placed on him by an ex-girlfriend, or he had been overtaken by a "demon" of sexual perv ersion, which he was in the process of overcoming.He stated Dr. Crawford was wrong wh en she testified that he had only admitted the third incident involving the CSC charge. Gonzalez testified that he did tell the four-year-old victim in the fi rst incident to lift her dress up, but he insisted that he never placed his hands on her. He completely denied the second incident with the five-year-old, stating he "never did nothing to her, never did lay [his] hands on her." Howe ver, he acknowledged that he did commit the third offense involving CSC on a six-year-old.

Gonzalez's girlfriend, Pame la Donahue, testified that Gonzalez had admitted
to her that he committed the CSC offens e, but she echoed Gonzalez's statements about having spells placed on him. She sa id she believed this meant if the devil wanted someone to do something, he would "misguide" the person.

During closing arguments, both the Stat e and Gonzalez invoked the missing witness rule, i.e., arguing that the jury c ould infer that a party's failure to call a particular witness meant the witness's te stimony would have been unfavorable to that party. Specifically, as is relevant he re, the State argued the jury could infer the absence of Gonzalez's independently retained expert, Dr. Martin, indicated that Dr. Martin's testimony would have b een unfavorable to Gonzalez.

The jury found beyond a reasonable doubt that Gonzalez met the statutory
definition of an SVP. The circuit court ordered Gonzalez to begin involuntary civil commitment for long-term control, care, and treatment in the SVP treatment program administered by the South Carolin a Department of Mental Health. In affirming Gonzalez's appeal , the Court of Appeals cited precedent holding the control of closing arguments rests in the circuit court's discretion, and it found the
circuit court did not abuse its discretion because the State's closing argument was
based on matters within evidence and the re asonable inferences arising therefrom. In re the Care & Treatment of Gonzalez , Op. No. 2012-UP-003 (S.C. Ct. App. filed Jan. 4, 2012), slip op. at 2. This Court granted Gonzalez's petition for a writ of certiorari to consider the propriety of the State's closing argument.

II. STANDARD OF REVIEW

"In an action at law, on appeal of a ca se tried by a jury, the jurisdiction of the appellate court extends merely to the correction of errors of law." Carson v. CSX Transp., Inc. , 400 S.C. 221, 229, 734 S.E.2d 148, 152 (2012)."A trial court is allowe d broad discretion in dealing with the range and propriety of closing argument to the jury." O'Leary-Payne v. R.R. Hilton Head, II,
Inc. , 371 S.C. 340, 352, 638 S.E. 2d 96, 102 (Ct. App. 2006); see also State v. Charping , 333 S.C. 124, 508 S.E.2d 851 (1998) (stating the trial court must
exercise its discretion as to whether to permit comment on a missing witness).

"An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factua l conclusions, is without evidentiary support." Clark v. Cantrell , 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). To warrant reversal, an appealing party must demonstrate not only error, but also prejudice. Id. at 390, 529 S.E.2d at 539.

III. LAW/ANALYSIS

On appeal, Gonzalez asserts the Court of Appeals erred by affirming the trial court's ruling allowing the State to argue during its closing that the jury could draw a negative inference from the fact that Gon zalez's expert did not testify at trial.

During cross-examination, the State asked Gonzalez if he had obtained a second, independent evaluati on after being seen by Dr. Cr awford. Defense counsel objected, and a discussion was held at the be nch, out of the jury's hearing. The contents of the objection were not placed on the record. Upon resuming, however, the State repeated its question and Gonzal ez answered that he did obtain a second
evaluation. The State then asked if he was evaluated by Dr. To m Martin and if he recalled if it occurred in October 2006, and Gonzalez said that was correct. The
State did not ask Gonzalez about the resu lts of the evaluation, and no further questioning occurred on this subject.

After the State rested its case, defe nse counsel inquired whether the State intended to draw a negative inference fro m the absence of Gonzalez's expert at
trial. The State indicated that it did. The circuit court stated, "I think he is entitled
to ask him if he has been ev aluated. Now the rest of it goes to how he argues it to the jury. You can always draw a nega tive inference from a witness not being called." During closing, the State told the jury that Gonzalez was entitled to get an independent evaluation and he had obtaine d one from Dr. Martin. The State then argued: "Dr. Martin is not here. [The State] would submit to you that you can draw an inference from his not being here that if he was here his testimony would be adverse to [Gonzalez's] case."Following the jury's verdict, defense counsel moved for a new trial based, in part, on the State's adverse inference argu ment regarding Dr. Martin. The circuit
court denied the motion.

To address the propriety of the missi ng witness rule here, we begin with a historical overview of the rule. Although it has been stated with some variations, it has long been the general rule in South Carolina that if a party fails, without satisfactory explanation, to produce th e testimony of an available witness on a
material issue in the case a nd the evidence is within his knowledge, is within his power to produce, is not equally accessible to his opponent, and is such as he would naturally produce if it were favorable to him, it may be inferred that such testimony, if presented, would be adverse to the party who fails to call the witness. See, e.g., Davis v. Sparks , 235 S.C. 326, 111 S.E.2d 545 (1 959). The rule is often referred to by the courts as the "missing witn ess rule," the "absent witness rule," or the "empty chair doctrine," and modern cases describe this principle as a permissible inference, not a presumption. See Alan Stephens, Annotation, Adverse Presumption or Inference Based on a Pa rty's Failure to Produce or Examine Witness with Employment Relati onship to Party—Modern Cases , 80 A.L.R.4th 405, 415 nn.10 & 11 (1990 & Supp. 2014).

The rule is based on the premise "that a party's failure to rebut evidence that the party naturally would be able to refu te, through testimony or physical evidence, may warrant an inference that such evid ence either does not exist or would be
unfavorable." In re Samantha C. , 847 A.2d 883, 910 (Conn. 2004). "The fact that
the unfavorable inference ma y be drawn does not require that the jury draw it." Baker v. Port City Steel Erectors, Inc. , 261 S.C. 469, 476, 200 S.E.2d 681, 683-84 (1973). The rule has been applied in both civil and criminal ca ses, and it has been implemented as either a jury argument by counsel or a jury instruction by the trial court, or both. Stephens, supra . It has also been applied to non-testifying experts, including physicians. See generally Alan Stephens, Annotation, Adverse Presumption or Inference Based on Party's Failure to Produce or Question Examining Doctor—Modern Cases , 77 A.L.R.4th 463 (1990 & Supp. 2014).

Early South Carolina cases stated the prin ciple in fairly simple terms, with further details as to its parame ters being added over time. In State v. Charping

, 333 S.C. 124, 508 S.E.2d 851 (1998), for exam ple, the Court remarked that it had previously recognized that a party should not be prejudiced by his failure to call a witness who is "equally availa ble" to the other party:This Court has previous ly stated "it is always proper for an attorney in argument to the jury to poi nt out the failure of a party to call
a witness." State v. Hammond , 270 S.C. 347, 356, 242 S.E.2d 411, 415 (1978). See also State v. Bamberg , 270 S.C. 77, 240 S.E.2d 639 (1977) (comment on failure to prod uce witness permissible); State v. Cook

, 283 S.C. 594, 325 S.E.2d 323 (1985) (no error in allowing solicitor to
comment on defendant's failu re to produce his wife); State v. Shackelford, 228 S.C. 9, 88 S.E.2d 778 (1955) (not improper for prosecutor to comment upon defendant 's failure to produce witnesses, accessible to the accused, or under his control, whose testimony would substantiate his story).

However, in Davis v. Sparks , 235 S.C. 326, 333, 111 S.E.2d 545, 549 (1959), we recognized the general rule that "a party is not to be prejudiced by his failure to call a witness who is equally available to the other party." Citing 20 Am.Jur. 193 Evidence, § 189.

Id. at 128, 508 S.E.2d at 853 (footnote omitted).

This Court has also discussed the fact or of "control," which is sometimes used with a meaning simi lar to "available":

If an inference is based upon th e absence of a possible witness it must appear that the witness is in the 'control' of the party and
available. 'Control' in this conn ection means only that the witness is in such relationship to the party that it is likely that his presence could be procured. The word 'available' is sometimes used with a meaning
similar to 'control' and is held not to mean merely available or accessible for service of compulsory process.

Duckworth v. First Nat'l Bank , 254 S.C. 563, 576-77, 176 S.E.2d 297, 304 (1970) (citing 29 Am. Jur. 2d Evidence , § 180, at page 225). The element of control is judged at the time of trial. See id. at 577, 176 S.E.2d at 304 (holding where the witness was an employee of a party at the time of a contract but was not employed at the time of trial, the witness was no longer in the control of the party).

"Generally, the [missing witness] rule is applied when the uncalled witness is an agent, employee, relation, or a ssociate of the party failing to call him, or within some degree of control of said party ." Davis , 235 S.C. at 333, 111 S.E.2d at549 (emphasis added). Moreover, the unf avorable inference may be drawn only from a party's failure to ca ll an available, material witness where under all the circumstances, the failure to produce such witness creates suspicion of a willful attempt to withhold co mpetent evidence. Baker , 261 S.C. at 475-76, 200 S.E.2d at
683. A party need not produce every witness who might testify in his favor, and a failure to do so does not necessarily impl y an attempt on his part to suppress the
truth. Davis , 235 S.C. at 334, 111 S.E.2d at 549. "Such suspicion is generally held
not warranted where the material facts assu med to be within the knowledge of the
absent witness have been testifie d to by other qualified witnesses." Id. "Requiring a party to call all previously disclose d expert witnesses would unnecessarily prolong the trial and unnecessa rily increase expenses." Wilkerson v. Pittsburgh Corning Corp. , 659 N.E.2d 979, 984 (Ill. App. Ct. 1995).

Invoking adverse inferences due to mi ssing witnesses has been the subject of
much debate. Some comment ators, such as McCormick, have questioned whether
the rule's usefulness has been outlived. In O'Rourke on Behalf of O'Rourke v. Rao

, 602 A.2d 362 (Pa. Super. Ct. 1992), the cour t discussed the waning need for the missing witness rule in light of modern discovery rules:

Despite the plenitude of cases r ecognizing the inference, refusal
to allow comment or to instruct does not often serve as a ground for
reversal. This counsel of caution is reinforced by several factors. Possible conjecture of ambiguity of inference is often present. The possibility that the infe rence may be drawn inv ites waste of time in calling unnecessary witnesses or in presenting evidence to explain why they were not called. Failure to anticipate that the inference may be invoked entails substantial possib ilities of surprise. And finally, the availability of modern discover y and other disclosure procedures serves to diminish both the justifica tion and the need for the inference. For some or all of these reasons and others, recognition of the inference may well be disappearing.

Id. at 363-64 (quoting McCormick on Evidence § 272 (3d ed. 1984, 1987 pocket part) (footnotes omitted)); see also Routh v. St. John's Mercy Med. Ctr. , 785 S.W.2d 744, 747 (Mo. Ct. App. 1990) (obs erving the rule pre-dates modern discovery rules, which would make the use of an adverse inference unnecessary, and its application "has presented con tinuing difficulty to the courts").The missing witness rule is based on dictum in Graves v. United States , 150
U.S. 118 (1893). 2 See Robert H. Stier, Jr., Revisiting the Missing Witness Inference -- Quieting the Loud Voice from the Empty Chair , 44 Md. L. Rev. 137, 138-39 (1985) (noting the historical significance of the Graves case as the basis for the rule). In Graves , the Court ultimately reject ed its application under the circumstances there, which involved the absence of the defendant's wife, a potential witness to the offense, from the de fendant's murder trial, since the Court found she was incompetent to testify against her husband. Id. at 138 n.3.

In Baker v. Port City Steel Erectors, Inc. , Justice C. Bruce Littlejohn, in a concurring opinion, stated "[t]he rule came into being through the common law," and he suggested "eliminating it as a ma tter of common law." 261 S.C. at 477, 200 S.E.2d at 684. Justice Littlejohn observed th at the rule creates more problems than it solves and permits a jury to specula te on what the evidence in the case might
have been :

I have many misgivings as to the wi sdom of continuing the rule that when a party fails to produce the testimony of an available witness who is within some degree of contro l of the party, it may be inferred that the testimony of such witness, if presented, would be adverse to the party who failed to call the witness.

After almost 25 years on the tria l and appellate bench, I have found that the rule is subject to much mischief and perhaps causes more problems than it helps to solve. Application of the rule suggeststo a juror that he may speculate as to what an available, but nontestifying witness would say.

Id. ; see also Crum v. Ward , 122 S.E.2d 18, 26 (W. Va. 1961) (remarking, in another context, that although "wide latitude and freedom of counsel in arguments to a jury are and ought to be allowed, we have never held that such arguments may be based on facts not in the record, or on inferences based on, or drawn from, facts which are not even admissible" and "[t]o permit such arguments would . . . disturb . . . well known rules of . . . procedure").

2 The Court stated, "The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce w itnesses whose testimony would elucidate the transaction, the fact that he does not creates the presumption that the testimony, if produced, would be unfavorable." Graves , 150 U.S. at 121.In this case, there is no indication in the record that Gonzalez tried to suppress or conceal the testimony of Dr. Ma rtin, which is a necessary predicate to allowing an adverse in ference argument. See Baker , 261 S.C. at 475-76, 200 S.E.2d at 683 (stating an unfavorable in ference may be drawn only where the failure to produce a witne ss creates suspicion of a w illful attempt to withhold competent evidence). The failure to call a witness does "not justify an arbitrary presumption of suppression of evidence." Parentini v. S. Klein Dep't Stores, Inc.

, 228 A.2d 725, 727 (N.J. Super. Ct. App. Div. 1967) (citati on omitted). "The court must assess the nonproduction of a witn ess with a view to the person and testimony involved." Id.

In addition, due to the complexities of a psychiatric evaluation, it is not proper to assume Dr. Martin's diagnosis w ould only have been one of two results.
As the court in Parentini observed, "We do not think it is proper to assume that normally a psychiatric opinion must suppor t one of two opposite contentions; the opinion may lie somewhere in be tween, or go off in an entirely different direction."
Id. at 727-28. The court concluded that, at best, the jury in that case could have concluded that the defendant's nonproduction of the expert witness indicated that his testimony would not have specifically c ontradicted the plaintiff's experts, and that it would not have materially aided hi s defense, but there was no basis for an assumption that the absent witness's te stimony would have been favorable or unfavorable to anyone. Id. at 728.

Gonzalez had no obligation to produce medical evidence at trial, and the fact that he exercised his right to obtain an independent examination should not confer such an obligation upon him at trial. Cf., e.g., Knotts v. Valocchi , 207 N.E.2d 379, 382 (Ohio Ct. App. 1963) ("Defendant was free to accept or dispute plaintiff's medical evidence. He had no obligation to produce a doctor at trial, nor did the fact that he exercised his right of medi cal examination before trial fasten such obligation upon him. Therefore, he coul d not be called upon to answer for the
absence of such a witness or his failure to call him.").

An expert's opinion is based on a myri ad of facts and da ta, which may or may not be admissible in evidence, as well as the expert's analysis. See Rule 703, SCRE ("The facts or data in the partic ular case upon which an expert bases an opinion or inference may be those perceive d by or made known to the expert at or before the hearing. If of a type reasona bly relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."). Particularly as to a non-testifying psychiatric expert,it is inherently difficult to assume that his opinion must have been one of only two options.

The application of an adverse inference as to these types of experts allows a jury to simply speculate as to what the expert might have said. In our view, an adverse inference is not appr opriate for psychiatric experts, as the expert's opinion about the psychiatric condition of an individual is based upon numerous complex factors that do not readily lend themselves to being reduced to a discrete position, as compared to a fact witness. See Parentini , 228 A.2d at 727-28.

Because of the risk of unfairness that such adverse inferences could impose, we hold today that a party's invocation of the missing witness rule should be
limited to fact witnesses, and it shoul d not be applied to opinion witnesses, particularly psychiatric experts. Moreover, we reiterate that the fact witness must be under the control of the party failing to ca ll him. Control in this context is now expressly defined to mean the uncalled witn ess is an agent, employee, relation, or associate of the party failing to call him. Th is is a more definitive statement of the categories of persons subject to control than is stated in our existing precedent, and it should reduce uncertainty on this point. Cf., e.g., Davis , 235 S.C. at 333, 111 S.E.2d at 549 (noting control refers to the fact that the uncalled witness "is an agent, employee, relation, or associate of the party failing to call him, or within some degree of control of said party").

In addition, because a jury instructi on "carries with it the imprimatur of a judge learned in the law" and, therefore, usually has more impact on a jury than the arguments of counsel, Dansbury v. State , 1 A.3d 507, 522 (Md. 2010), we hold the better practice is that use of the missing wi tness rule should be limited to counsel's argument, and a jury instruction on the matter should not be given. See, e.g., In re
Samantha C. , 847 A.2d 883, 889 (Conn. 2004) (finding public policy reasons support a conclusion that jury instructions should not be given regarding the missing witness rule).

Having found error in the State's advers e inference argument, we must next
consider whether it constitutes reversible error. A fundamental principle of appellate procedure is that a challenge d decision must be both erroneous and prejudicial to warrant reversal. Ardis v. Sessions , 383 S.C. 528, 682 S.E.2d 249 (2009); see also State v. Charping , 333 S.C. 124, 508 S.E.2d 851 (1998) (confirming a ruling on a party's ability to comment on a missing witness is subject to a harmless error analysis). "No definite rule of law governs this finding; rather,the materiality and prejudicial character of the error must be determined from its relationship to the entire case." Judy v. Judy , 384 S.C. 634, 646, 682 S.E.2d 836, 842 (Ct. App. 2009) (citation omitted). "E rror is harmless where it could not have reasonably affected the result of the trial." Id.

We find any error in this case is harmless beyond a reasonable doubt because it could not have reasonably affected the result reached by the jury. As an initial matter, we note Gonzalez's argument on appeal to this Court focuses exclusively on the propriety of closing argum ent, and he does not set forth an issue challenging the State's cross-examinati on of Gonzalez about a second evaluation. 3

Once the existence of a second evaluation was before the jury during crossexamination, any adverse inference arguabl y arose at that time, so the explicit suggestion of an adverse inference by the State in its closing argument was merely
cumulative. See Price v. United States , 531 A.2d 984, 993 (D.C. 1987) ("By pointing out a witness' absence, counsel is plainly suggesting that if that witness were produced the resulting testimony would be adverse to the other party."). In any event, the State did not elicit a ny details about the evaluation on crossexamination other than the name of the ex aminer (Dr. Martin) and the date when the evaluation was performed.

In addition, defense counsel strenuou sly rebutted the adverse inference by arguing to the jury in his closing that the State could have called Dr. Martin if it believed his testimony would be helpful to the State. Defense counsel also invoked the missing witness rule as to othe r witnesses, arguing the State had failed to call several experts, so it could be inferred that th eir testimony would not help
the State.

3 The circuit court's statements at tria l regarding balancing the probative value and the prejudicial effect of the evidence pertained to the admission of Gonzalez's testimony during cross-examination. The South Carolina Rules of Evidence govern the admission of this evidence. See In re the Care & Treatment of Corley

, 353 S.C. 202, 577 S.E.2d 451 (2003) (discussi ng the SCRE, particularly Rules 401 and 403, in an SVP matter); Rule 403, SC RE ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ."). In contrast, however, "[a]rguments made by counsel are
not evidence." S.C. Dep't of Transp. v. Thompson , 357 S.C. 101, 105, 590 S.E.2d 511, 513 (Ct. App. 2003).Considering the entire record, we find these exchanges did not measurably affect the decision of the ju ry. The State set forth an abundance of evidence as to Gonzalez's mental abnormality based on Dr. Crawford's diagnosis of Gonzalez as having pedophilia and an anti-social disorder, as well Gonzalez's risk of reoffending and inability to control his actions based on the fact that he continued
to commit offenses while out on bond a nd based on his steadfast refusal, or inability, to accept responsibility for his conduc t. Gonzalez attempted to dilute the significance of this evidence by referring to examinations he had years earlier by other individuals. The State, however, re butted this evidence by asserting these
examinations were not recent and were no t made in the context of evaluating his
status as an SVP.

In the end, the determination whethe r the evidence indicated Gonzalez was
an SVP was one to be made by the jury as the fact-finder, and the very brief
reference to a second evaluation could no t reasonably have affected the outcome here. If anything, Gonzalez's failure to fully acknowledge his prior sexual misconduct despite his guilty pleas to the o ffenses, and his unusual attempt to cast
the blame for his sexual contact with child ren on a "spell" cast by an ex-girlfriend or on "spirits" or "demons," probably di d more than any passing reference to a second evaluation to convince the jury that he was at a risk to re offend if he did not receive long-term control, care, and treatment in a secure facility.

IV. CONCLUSION

The decision of the Court of Appeals upholding Gonzalez's SVP status and his involuntary commitment is affirmed as modified.

AFFIRMED AS MODIFIED.



### TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J., concurring in res ult only in a separate opinion.JUSTICE PLEICONES: I agree that the trial judge erred in permitting the State to invoke the "missing witness" rule, a nd that its error was harmless. I write separately because I do not join the portion of the majo rity opinion that would bar the application of the rule to any missing opinion witness. Instead, I would narrow our holding to address the issue in this case: whether the State should be allowed to invoke the rule against a SVP defe ndant who fails to call an examining psychiatric witness.

In every SVP proceeding, the key issue is whether the person "suffers from a mental abnormality or personality disorder that makes the person likely to engage
in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." See S.C. Code Ann. § 44-48-3 0(1)(b) (Supp. 2014). The State must prove beyond a reasonable doubt th at a SVP defendant's mental state is
such that it warrants indeterminate civil commitment. The State meets that burden in part by procuring an evaluation of the SVP defendant's mental state and by having the expert testify as to the SV P defendant's likelihood of reoffending. Given the quasi-criminal characteristics of SVP proceedings and the fact that the State bears the burden of proof, I would prohibit the State from ever invoking the missing witness rule when a SVP defenda nt chooses not to call a psychiatric
witness.

I would not use this case as the vehicle to decide the broader question: whether we should prohibit the use of the missing witne ss rule when a party fails to call an expert. Further, it is not necessary to a de cision of this case to adopt a new rule for "control" in the context of invoking the mi ssing witness rule for fact witnesses. Therefore, I cannot agree with the majority's definition of control as I fear the definition unnecessarily limits the viability of the rule for fact witnesses.

I also write separately to express my disa greement with the majo rity's analysis of Rule 403, SCRE. Since I w ould prohibit the State from invoking the rule in a SVP proceeding when a defendant chooses not to call a psychiatric expert, I see no need to engage in a Rule 403 analysis. Furthe r, I see no need to distinguish between invoking the missing witness rule during cross-examination or closing argument
because I would find the State should be foreclosed from ever invoking the rule in
the SVP context.Ultimately, I agree with th e majority that the trial judge's error was harmless because there is overwhelming evidence to support the jury's determination. For the reasons stated herein, I therefore conc ur in result only and would affirm the Court of Appeals' decision as modified.