THE STATE OF SOUTH CAROLINA In The Supreme Court

In the Matter of the Care a nd Treatment of Christopher Taft, Petitioner.

Appellate Case No. 2013-002246

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Richland County Alison Renee Lee, Circuit Court Judge

Opinion No. 27543 Heard April 9, 2015 – Filed July 1, 2015

REVERSED

Appellate Defender LaNelle C. DuRant, of Columbia, for

Petitioner.

Attorney General Alan M. Wilson and Senior Assistant Deputy Attorney General Deborah R.J. Shupe, of Columbia, for Respondent.

JUSTICE HEARN: In this civil commitment proceeding, Christopher Taft was found to be a sexually violent pred ator and was committ ed to the South Carolina Department of Ment al Health. He now argues the trial court should havegranted his motion for directed verdict becau se the State failed to present sufficient evidence under the Sexually Violent Predato rs Act (the SVP Act) that he was presently likely to reoffend if not confined. We agree and reverse.

FACTUAL/PROCED URAL HISTORY

The underlying facts of this case are tragic and disturbing. Taft grew up in a family rife with intergenerational incest. As a young child, he was sexually abused by his aunts, uncles, and a number of older cousins. As Taft went through puberty,

he became an abuser himself of his younger siblings.

In June of 2006, at age fifteen, Taft pl ed guilty to three counts of assault and battery of a high and aggravated nature , stemming from the sexual assault of his sisters, then five and six, and his nine-y ear-old brother. Taft was committed to the Department of Juvenile Justice (DJJ) for six months, and the family court suspended his sentence upon placement in a sex offender treatment facility and probation after his release. He was admitted to Generations Group Home, a facility for juvenile sex o ffenders in November 2006. After he was discharged

from Generations in June 2 007, he was remanded to DJJ until his release in July 2008. Upon his release from DJJ, he was returned home to live with the same siblings he had previously assaulted.

In March of 2010, Taft, then nineteen, pled guilty to two counts of lewd act on a minor after being charged with two counts of CSC for fondling and engaging in intercourse with his eight and nine-yea r-old sisters. He received concurrent sentences of fifteen years' imprisonment on both charges, suspended to three years ' incarceration and five years' probation.

The State brought a civil commitment proceeding pursuant to the SVP Act in July 2010. After an initial probable cause hearing, the court appointed Dr.

Rebecca Jackson to evaluate whether Taft met the criteria for civil commitment. After examining Taft, Dr. Jackson issu ed a report on November 19, 2010, concluding he did not.

The State sought another expert and retained Dr. Gregg Dwyer to evaluate Taft. However, Dr. Dwyer was in the pro cess of relocating from the University of

South Carolina School of Medicine to th e Medical University of South Carolina and had not yet finished setting up his ne w lab. Consequently, Dr. Dwyer was unable to complete the evaluation within the sixty-day time limit required bystatute. On February 17, 201 1, the final day before the time limit expired, the State filed a motion for a continuance, reques ting more time to allow Dr. Dwyer to complete his evaluation.

Taft objected to the request for a con tinuance, arguing the SVP Act required that a trial be conducted within ninety days of the court-appointed evaluation, and the State's claim that its expert did not have time to set up his new lab did not constitute good cause. Taft contended the State should have realized earlier that Dr. Dwyer could not meet th e statutory deadline and obtained another expert. The trial court disagreed and granted the motion. The court directed the evaluation be completed by May 2, 2011, and se t the trial for May 23, 2011.

Prior to commencement of the trial, Taft moved to exclude the State's second evaluation because even though it had been timely submitted pursuant to the trial court's latest order, it was au thored by both Dr. Dwyer and a Dr. William Mulbry. Dr. Mulbry had been retained due to the continued difficulties with Dr. Dwyer's schedule. Taft argued the repo rt should be excluded because the trial court's order granting the continuance sp ecifically authorized only Dr. Dwyer to evaluate him. The court agreed, and ex cluded the report. The trial court also excluded any testimony regarding the s econd evaluation except from Dr. Dwyer, who the State acknowledged was not prepared to testify.

Taft subsequently moved for summary judgment, arguing that absent any evaluation or testimony from Dr. Dwyer, th e State failed to provide any evidence that Taft was a sexually vi olent predator. He argued the only remaining evidence was the report and testimony of Dr. Jackson, who had concluded that Taft was not a sexually violent predator. In response, th e State argued that it still had the reports of Drs. Geoffrey McKee and Jack Lu adzers who had concluded Taft was a sexually violent predator in connection w ith his prior criminal investigation in 2009. Taft, however, asserted those two reports were outdated and inadmissible because they were not probative of whether he was currently a sexually violent predator. The trial court disagreed with Taft, finding the prior evaluations were admissible; it therefore denied the motion.

At trial, the State offered the tes timony of Dr. McKee, who had examined Taft nearly two years earlier in June 2009. Dr. McKee discussed Taft's ability to accept and utilize the treatment he had rece ived, and testified about the previous

sexual abuse Taft had himself endured be ginning at age five. Dr. McKee opined that based upon his previous evaluation of Taft, he conclude d Taft suffered from"pedophilia, sexually attracted to females and none xclusive type," 1 and that based on that prior evaluation, Taft met the st atutory definition of a sexually violent predator. He testified that in reaching these conclusions he had conducted several

risk assessment tests to measure Taft's likelihood of reoffendi ng; based on Taft's score on these tests, McKee determined he had a moderate to high risk of sexual

recidivism.

The court-appointed expert, Dr. Rebecca J ackson, also testified. Unlike Dr. McKee, Dr. Jackson's opinion was based on her evaluation of Taft in this civil commitment proceeding. Dr. Jacks on opined Taft suffered from pedophilia, limited to incest, based on her finding that there was no evidence he was aroused by other females or other children. Dr. Jackson testified that she performed one

risk assessment test which scored him as having a twenty-five percent chance of reoffending in five years and a thirty-t hree percent chance of reoffending over a ten-year period. However, she testified th at in her professional opinion, Taft did not meet the criteria of the SVP Act, a nd other measures short of confinement could effectively prevent him from victimizing his sisters again.

At the close of the State's case, Taft moved for directed verdict, arguing the State failed to put forth any evidence that Taft presently suffered from a mental abnormality that made him likely to reo ffend. The court denied the motion, concluding it was a jury issue. The jury ultimately found Taft was a sexually violent predator. Taft moved for judg ment notwithstanding the verdict, again arguing lack of evidence, but th e trial court denied the motion.

On appeal, Taft contended the trial court erred in failing to direct a verdict in his favor based on the lack of expert te stimony that he was currently a sexually violent predator. The court of appeal s affirmed in an unpublished opinion. In re Taft , Op. No. 2013-UP-334 (S.C. Ct . App. filed Aug. 7, 2013). This Court granted

certiorari.

ISSUE PRESENTED

Did the court of appeals err in affirmi ng the trial court's failure to direct a

verdict in favor of Taft?

1 Dr. McKee's diagnosis indicated Taft is attracted to children under the age of thirteen, predominately female, and his attraction is nonexc lusive so he is

interested in children and adults.LAW/ANALYSIS

Taft argues the court of appeals erred in affirming the trial court's denial of his motion for directed verdict. Specifi cally, Taft argues the State failed to put forth evidence he satisfied the definition of a sexually violent predator because neither expert testified that he had a present risk of reo ffending. We agree.

On appeal from the denial of a defe ndant's directed verdict motion, the appellate court may onl y reverse the trial court if there is no evidence to support the trial court's ruling. In re Matthews , 345 S.C. 638, 646, 550 S.E.2d 311, 315 (2001). In considering a directed verdict motion, the trial court is concerned with

the existence or nonexistence of evidence, not its weight. State v. Cherry , 361 S.C. 588, 593, 606 S.E.2d 475, 477–78 (2004). "A defendant is entitled to a directed verdict when the State fails to produ ce evidence of the offense charged." State v. McKnight , 352 S.C. 635, 642, 576 S.E.2d 168, 1 71 (2003). Thus, a trial judge should grant a motion for directed verdic t when the evidence presented merely raises a suspicion of guilt. State v. Lollis , 343 S.C. 580, 584, 541 S.E.2d 254, 256 (2001). "'Suspicion' implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof." Id.

The State bears the burden of proving a person is a sexually violent predator. In re Care & Treatment of Corley , 353 S.C. 202, 206, 577 S. E.2d 451, 453 (2003). Pursuant to the SVP Act, a sexually violen t predator is defined as a person who: "(a) has been convicted of a sexually viol ent offense; and (b) 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 s ecure facility for long-term control, care,

and treatment." In re Care & Treatment of Harvey , 355 S.C. 53, 60, 584 S.E.2d 893, 896 (2003). A person is c onsidered likely to engage in acts of sexual violence if "the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the hea lth and safety of others." S.C. Code Ann. § 44-48

- 30(9) (2002 and Supp. 2014).

It is undisputed Taft was convicted of a sexually violent offense and suffers from a mental abnormality; the sole ques tion is whether the State produced evidence that his mental abnormality is such that he is presently likely to reoffend

if not confined. The thrust of Taft's argument is that the State's expert testimony established only that he had a risk of reoffending in 2009 when he was evaluated in conjunction with the underlying criminal ch arges, and not that he had a risk of reoffending in 2011 in the context of this civil commitment proceeding. The State contends the issue of present risk goes to the weight—not existence—of theevidence, and thus the trial court proper ly submitted the question to the jury.

We find the State's evidence devoid of proof Taft has a present risk to reoffend. Although the Stat e's expert, Dr. McKee, st ated that Taft met the definition of a sexually violent predator in 2009, he consistently refused to render a current diagnosis. Dr. McKee expressly testified that he "[did not] have the personal contact and the personal interview that [he] would need to do to form a current and active opinion" because "to be ab le to say whether [Taft] is a sexually violent predator now, [he] would have to be able to evaluate [him]." In fact, Dr.

McKee admitted on cross-examin ation that "as of [that da y] he could not give an opinion as to whether or not [Taft] is a sexually violent predator."

A civil proceeding to commit an individual, perhaps for life, following

service of his criminal sent ence, is an extraordinary re medy. Although this Court has repeatedly held the Act constitutional, we decline to construe it in a manner

which would lessen the State's burden of proof. The General Assembly has carefully written our SVP Act to lay out exac tly what is required to establish that someone is a sexually violent predator; the State must prove, beyond a reasonable

doubt that the individual is presently a sexually violent predator. See State v.

Gaster , 349 S.C. 545, 551, 564 S.E. 2d 87, 90 (2002) (holding, in the context of an ex post facto challenge, that the SVP Ac t "permits involuntary confinement based upon the determination the person currently suffers from both a mental abnormality or personality disorder and is likely to engage in acts of sexual violence" (emphasis added)). Today, we give force to this requirement.

We decline to accept the State's argumen t that an expert's evaluation from a prior criminal proceeding is sufficient to pr ove an individual is a sexually violent predator. If this were so, it would obviat e any possibility of rehabilitation during incarceration. Further, it would violate the legislature's statutory scheme, which clearly envisions a new civil commitment proceeding based upon current evidence

that the individual suffers from a mental abnormality or personality disorder that makes the person likely to en gage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. In this case, Dr. Jackson opined that Taft did not meet the definiti on of a sexually violent predator under the

SVP Act and Dr. McKee testif ied he could not say Taft was presently a sexually violent predator because he had not eval uated him since 2009. Accordingly, we find the State failed to present sufficient ev idence that Taft had a current risk of reoffending which would allow a jury to conclude he was a sexually violent predator.CONCLUSION

Based on the foregoing, we find the tria l court erred in denying Taft's motion

for directed verdict. We therefore reverse. 2

TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.

2 Because our holding on this issue is dis positive, we decline to address Taft's additional argument that the court of app eals erred in affirming the trial court's grant of a continuance. See Futch v. McAllister Towing of Georgetown, Inc. , 335

S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting an appellate court need not address remaining issues where one issue is dispositive).