THE STATE OF SOUTH CAROLINA In The Court of Appeals

In the Matter of the Care and Treatment of Richard Ridley, Appellant.

Appellate Case No. 2018-000527

Appeal From Aiken County Doyet A. Early, III, Circuit Court Judge

Opinion No. 5810 Heard November 10, 2020 – Filed March 17, 2021

AFFIRMED

Arthur Kerr Aiken, of Aike n & Hightower, of Columbia, for Appellant.

Attorney General Alan Mc Crory Wilson and Senior Assistant Deputy Attorney Ge neral Deborah R.J. Shupe, both of Columbia, for Respondent.

WILLIAMS, J.: Richard Ridley appeals his co mmitment to the South Carolina Department of Mental Health (the Depa rtment) as a sexually violent predator (SVP). On appeal, Ridley argues the trial court erred in admitting expert testimony regarding his diagnosis of Other Specified Paraphilic Disorder – Biastophilia/Non-Consent (OSPD – Biastophilia/Non-Consent). We affirm.

FACTS/PROCEDURAL HISTORY

In 2002, Ridley pled guilty to assault a nd battery of a high and aggravated nature (ABHAN), third degree criminal sexual conduct (CSC), and failure to register as a sex offender. Prior to his release in 2014, the State filed a petition for Ridley'scivil commitment to the Department pursu ant to the Sexually Violent Predator Act 1 (the Act). The trial court appointed an evaluator who diagnosed Ridley with OSPD – Biastophilia/Non-Consent and Antisocial Personality Disorder (APD)
with Narcissistic Traits and recomme nded commitment. Thereafter, Ridley voluntarily committed to th e Department for treatment pursuant to the Act.

As required by the Act, the Department evaluated Ridley 's mental status in 2015, 2016, and 2017 and determined each ti me that Ridley required further commitment. In 2017, Ridley petitioned for release against the Department's recommendation, and the circu it court held a trial.

During a pretrial hearing, Ridley made a motion in limine to exclude expert testimony regarding his diagnosis of OS PD – Biastophilia/Non-Consent, arguing the diagnosis was not scientifically reliabl e and was, therefore, insufficient to qualify as a predicate diagnosis under the Act. 2 The State proffered testimony from Dr. Gordon Edward Brown, Jr., an actuarial measur es forensic psychologist for the Department. Following the pr offered testimony and arguments by the parties, the trial court denied Ridley's motion and permitted Dr. Brown to provide expert testimony regarding the di agnosis before the jury.

During trial, the court qualified Dr. Brown as an expert in fore nsic psychology, and he provided testimony summarizing his ev aluation of Ridley and opining that Ridley suffered from OSPD – Biast ophilia/Non-Consent and APD with Narcissistic Traits. Ridley presented expert testimony from Dr . Selman Watson, a forensic psychologist, who opined that OS PD – Biastophilia/Non-Consent was not a valid diagnosis for the purposes of commitment unde r the Act.

At the close of trial, the jury found beyond a reasonable doubt that Ridley still posed a danger to society. 3 The trial court subsequently filed an order of continued commitment. This appeal followed.

ISSUE ON APPEAL

1 S.C. Code Ann. §§44-48-10 to -170 (2018).

2 Ridley did not challenge his diagnosis of APD with Narcissistic Traits at trial and does not challenge the di agnosis on appeal.

3 See § 44-48-120(B) ("The burden of proof is upon the [State] to show beyond a reasonable doubt that the petitioner's ment al abnormality or personality disorder remains such that the petitioner is not safe to be at large and, that if released, is likely to commit acts of sexual violence.").Did the trial court err in admitti ng Dr. Brown's expert testimony?

STANDARD OF REVIEW

"A trial court's decision to admit or excl ude expert testimony will not be reversed absent a prejudicial abuse of discretion." State v. Prather , 429 S.C. 583, 598, 840 S.E.2d 551, 559 (2020) (quoting State v. Chavis , 412 S.C. 101, 106, 771 S.E.2d 336, 338 (2015)). "A trial court's ruling on the admissibility of expert testimony
constitutes an abuse of disc retion whe[n] the ruling is unsupported by the evidence or controlled by an error of law." State v. Jones , 423 S.C. 631, 636, 817 S.E.2d 268, 270 (2018).

LAW/ANALYSIS

Ridley argues the trial court erred in admitting Dr. Brown's expert testimony regarding his diagnosis of Ridley with OSPD – Bias tophilia/Non-Consent. We disagree.

Pursuant to the Act, an individual is considered an SVP if (1) he "has been convicted of a sexually violent offense" and (2) "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." § 44-48-30(1). Ridley asse rts Dr. Brown's testimony was improper because OSPD – Biastophilia/Non-Consent is scientifically unreliable and thus cannot serve as a predicate di agnosis under the Act.

"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 otherwis e." Rule 702, SCRE. "Before admitting expert testimony, a trial c ourt must qualify the expert and determine whether the subject matter of the expert's proposed te stimony is reliable, as required by Rule 702, SCRE." Prather , 429 S.C. at 599, 840 S.E.2d at 559. "The trial [court] should apply the Jones [4] factors to determine reliability." State v. Council , 335
S.C. 1, 20, 515 S.E.2d 508, 518 (1999).

The Jones reliability factors take into consideration:

4 State v. Jones , 273 S.C. 723, 259 S.E.2d 120 (1979).(1) the publications and peer reviews of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control pro cedures used to ensure reliability; and (4) the consistency of th e method with recognized scientific laws and procedures.

State v. Jones , 343 S.C. 562, 573, 541 S.E.2d 813, 819 (2001). "Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate." Council , 335 S.C. at 20–21, 515 S.E.2d at 518.

During the pretrial hearing, the parties s tipulated Dr. Brown's expert qualifications, and the State proffered his testimony for th e trial court to perform its gatekeeping
duties. Dr. Brown testified he evaluated Ridley for his annual review in 2017. In performing his evaluation, Dr. Brown testif ied he conducted a series of clinical interviews of Ridley and thoroughly revi ewed Ridley's records, including his criminal records, prior evaluations, and treatment records. Dr. Brown confirmed
the records he reviewed were those t ypically and reasonably relied upon by other experts in his field. Dr. Brown testifie d that after conducting the annual review, he diagnosed Ridley with two diagnoses: O SPD – Biastophilia/Non-Consent and APD
with Narcissistic Traits. Dr. Brown explained that in diagnosing Ridley, he used the fifth edition of the Diagnostic Manual of Mental Disorders (DSM-V), which is the official, peer reviewed publication of the American Psychiatric Association.

In its chapter on paraphilic disorders, the DSM-V lists eight specific paraphilic
disorders but also includes two additiona l categories: other specified paraphilic disorders (OSPD) and unspecified paraphilic disorders. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 685–705 (5th ed. 2013). 5 In the introduction of the chapter, it states:

The eight listed disorders do not exhaust the list of possible paraphilic disorders . Many dozens of distinct paraphilias have been identif ied and named, and almost any of them could, by virtue of its negative consequences for the individual or for others, rise to the level of a

5 The DSM-V replaced the previous design ation of Not Otherwise Specified (NOS) in the DSM-IV with other specified disorder and unspecified disorder. See Diagnostic and Statistical Manual of Mental Disorders at 15–16.paraphilic disorder. The diagnoses of other specified and unspecified paraphilic disorders are therefore indispensable and will be required in many cases

.

Id. at 685 (emphases added)

. The DSM-V specifically describes OSPD as follows:

This category applies to presentations in which symptoms characteristic of a paraphilic disorder that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning predominate but do not meet the full criteria for any of the disorders in the paraphilic disorders diagnostic class. The [OSPD] category is used in
situations in which the clin ician chooses to communicate the specific reason that the presentation does not meet the criteria for any specified paraphilic disorder. This is done by recording "other specified paraphilic disorder" followed by the specific reason (e.g., "zoophilia").

Examples of presentations that can be specified using the [OSPD] designation include, but are not limited

to , recurrent and intense sexual arousal involving telephone scatologia (obscene phone calls), necrophilia (corpses), zoophilia (anima ls), coprophilia (feces) klismaphilia (enemas), or urophilia (urine) . . . .

Id. at 705 (emphasis added).

Dr. Brown explained Biastophilia is when a person is "sexually aroused by the aspect of having nonconsensual sex with someone." He ac knowledged that OSPD

–

Biastophilia/Non-Consent is not specifically listed as one of the OSPD examples
in the DSM-V but maintained his belief th at the diagnosis was valid and reliable
because the DSM-V instructed that the list of examples was not exhaustive. Dr. Brown further testified biastophilia is a recognized modifier for personality
disorders and mental abnormalities in his fi eld. On cross-examination, Dr. Brown admitted there is debate within the psycho logical profession as to whether OSPD – Biastophilia/Non-Consent should be considered a valid predicate diagnosis under the Act because rape is consid ered a criminal act of contro l rather than the result of a mental abnormality or disorder; however, he maintained his belief that it was a valid and reliable diagnosis. He further st ated practitioners, for that reason, shouldexercise caution in making the diagnosis a nd admitted it was his first time using it. Following the proffer, the trial court denied Ridley's motion, finding the disagreement within the field regarding th e diagnosis did not render it scientifically unreliable for the purpose of serving as a predicate diagnosis under the Act.

We hold the trial court did not abuse its discretion in admitting Dr. Brown's testimony. See Prather , 429 S.C. at 598, 840 S.E.2d at 559 ("A trial court's decision to admit or exclude expert te stimony will not be reversed absent a prejudicial abuse of discretion." (quoting Chavis , 412 S.C. at 106, 771 S.E.2d at 338)). Although a contentious issue, we find the trial court properly dispensed of its gatekeeping duties in assessing the reliability of Dr. Brown's diagnosis. See id. at 599, 840 S.E.2d at 559 ("Before admitting expert testimony, a trial court must qualify the expert and determine whether the subject matter of the expert's proposed testimony is reliable, as requi red by Rule 702, SCRE ."). Dr. Brown testified as to his method in diagnosing Ridley, which included standard practices within the industry such as conducting cl inical interviews; thoroughly reviewing criminal, evaluation, and treatment r ecords; and consulting the DSM-V. Accordingly, we find Dr. Br own's approach in diagnosing Ridley met the threshold of reliability for admissible evidence. See State v. White , 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009) ("All expert testim ony must satisfy the Rule 702 criteria, and that includes the trial court's gateke eping function in ensuring the proposed expert testimony meets a reliability th reshold for the jury's ultimate consideration."); Council , 335 S.C. at 20, 515 S.E.2d at 518 ("The trial [court] should apply the Jones factors to determine reliability.").

As to whether OSPD – Biastophilia/Non-C onsent is a valid predicate diagnosis under the Act, we hold the trial court pr operly found this was a determination within the jury's province. See Jones , 423 S.C. at 639–40, 817 S.E.2d at 272 ("There is always a possibi lity that an expert witness's opinions are incorrect. However, whether to accept th e expert's opinions or not is a matter for the jury to
decide. Trial courts are tasked only with determini ng whether the basis for the expert's opinion is sufficiently reliable such that it [may be] offered into evidence."); see also Council , 335 S.C. at 21–22, 515 S. E.2d at 519 ("This [c]ourt has noted that 'vigorous cross examinati on, presentation of contrary evidence and careful instructions on the burden of proof are the traditional appropriate means of attacking shaky but admissible evidence.'" (quoting State v. Dinkins , 319 S.C. 415, 418, 462 S.E. 2d 59, 60 (1995))). Furthermore, as it currently stands, we find the Act and the DSM-V do not expressl y prohibit a diagnosis of OSPD – Biastophilia/Non-Consent. See McGee v. Bartow , 593 F.3d 556, 576 (7th Cir. 2010) ("The Supreme Court's cases on this point teach that civil commitment upona finding of a 'mental disorder' does not violate due process even though the predicate diagnosis is not found with in the four corners of the DSM."); see also In

re Snow , 425 S.C. 544, 549, 551, 823 S.E. 2d 467, 469–71 (2019) (holding the diagnosis of other specified personality di sorder was a legally sufficient predicate diagnosis under the Act). Therefore, we hold the trial court did not err in denying Ridley's motion in limine and admitting Dr. Brown's testimony.

CONCLUSION

Based on the foregoing, Ridley's commitment is

AFFIRMED.

HUFF and GEATHERS, JJ., concur.