THE STATE OF SOUTH CAROLINA In The Court of Appeals

Glenn E. Vanover, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-001917

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

Opinion No. 5799 Submitted March 2, 2020 – F iled February 3, 2021

AFFIRMED

Jonathan McKey Milling, of Milling Law Firm, LLC, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Melody Jane Brown, and Deputy Attorney General Donald J. Zelenka, all of Columbia, for Respondent.

HEWITT, J.: Glenn Edwin Vanover (Petitioner) appeals the circuit court order denying his application for Post-Conviction Relief (PCR). A jury convicted him in 2012 of two counts of first degree crim inal sexual conduct with a minor under section 16-3-655(A)(1) of the South Carolina Code (2015). He re ceived concurrent twenty-six-year sentences. This court a ffirmed the convictions and sentence on appeal.Petitioner argues his trial counsel was ineffec tive in failing to investigate and present evidence that the alleged victim—Pe titioner's daughter—previously made and recanted an allegation of in appropriate conduct against a middle school teacher. We agree with the PCR court that Petitioner di d not establish this evidence would have been admitted or that he was prejudiced. Thus, we affirm.

BACKGROUND

This is a "delayed reporting" case. Daught er was sixteen years old at the time of trial and testified the sexual abuse occurred when she was younger. She alleged this began sometime between her second and fourth grade years and stopped when she was in fifth grade, around the age of ten or eleven.

Trial Testimony
Daughter described how the alleged abuse be gan and progressed. She said the first instance happened when she was at home w ith Petitioner and her older brother. Daughter claimed Petitioner inv ited her to watch TV in his bedroom and groped her while they were both clothed. She said Petitioner told her not to tell anyone.
Daughter explained the next instance of abuse involved sexual intercourse after Petitioner again asked Daughter to come in to his bedroom. She testified she was certain they had intercourse because it was painful.
Daughter said she did not call out for he lp because she was afraid. She said Petitioner told her not to tell anyone about the interaction and warned her that she would be in a lot of trouble. Daughter claimed Petitioner abused her again on other occasions and that this always occurred while Melanie Vanover (Mother) was at work.
Around the time Daughter was in the fifth gr ade, the family m oved into a house on property owned by Petitioner's mother (Grandmother). Daughter claimed Petitioner abused her once in this residence when she was about ten years old. As noted above, Daughter said the abuse stopped wh en she was ten or eleven.

Several witnesses acknow ledged Daughter first told Mother about the alleged abuse roughly two years later. There is c onflicting testimony about whether Daughter recanted these first allegations. We will discuss that shortly.
Two years after that first disclosure—and r oughly four years after the alleged abuse stopped—Daughter disclosed the abuse to a teacher, Michael Horne. Criminal charges followed shortly thereafter.Petitioner's defense relied on po tential inconsistencies in Daughter's memory about the abuse's frequency. Daught er initially said the abuse happened about three times per month but later said it did not happe n every month and instead occurred "very occasionally." Daughter ultimately said Petitioner abused her about three times a year, not three times a month.
Petitioner and other family members al so claimed Daughter manufactured the allegations as revenge. Moth er testified Daughter's firs t disclosure occurred on her brother's sixteenth birthday and appeared to be retaliation for Petitioner refusing to let Daughter take a car ride with her brother and his frie nds. Mother said Daughter "showed no emotion whatsoever" when discussing the abuse, gave differing accounts of the abuse over time, and ev entually admitted she was lying.
Grandmother agreed with Mother's account , as did Petitioner. Petitioner and Mother hypothesized Daughter's disclosure to he r teacher two years later resulted from Petitioner punishing Daughter for poo r grades and skipping school.
Daughter disputed that her first disclosu re occurred on her brother's birthday and adamantly denied recanting the allegations. Daughter said her fa mily confronted her about the allegations and shunned he r when she refused to recant.

Several witnesses testified ab out the disclosures that le d to criminal charges. Horne—Daughter's teacher—said Daughter cr ied. The school resource officer, Deputy Jonathan Grooms, testified Daughter told him that the abuse occurred when she was between the ages of eight and te n and that the incidents happened in her home. Grooms recalled that Daughter had a blank look on her face, did not want to talk to him, and that he had to pull the information out of her.
Investigator Marty Longshore interviewed Da ughter as well. He explained Daughter told him the abuse occurred over a period of time when she was between the ages of eight and eleven. He said Daughter was reserved, shy, and reluctant to write a statement, but Daughter eventually spoke to him about what happened and provided a statement. He remember ed Daughter cried and was upset, reserved, and shook while writing the statement.
An assessment worker with the Department of Social Services interviewed Daughter as well. This person visite d Petitioner's residence to inve stigate the allegations and said that when she told Petitioner the reas on for her visit, Petitioner announced that nobody had ever accused him of sexually abusing Daughter an d that "he and his wife had a wonderful sex life, so why woul d he need to go elsewhere."

PCRThe alleged ground for PCR re lates to evidence that Daught er previously accused a middle school teacher of some sort of inapprop riate interaction. This appears to have occurred in the same general time period wh en Daughter first told Mother about the alleged sexual abuse at issue here.
The precise allegation is unclear. One of Daughter's seventh grade teachers—we will call him John Doe—explained at the P CR hearing that he received a phone call from Petitioner and Mother the day after he gave Daughter detention for talking with another student during class. According to Doe, Mother said Daughter accused Doe of asking Daughter and one of her friends about the color of their underwear, when they had their periods, and whether they had boyfriends.
Daughter was not on the phone call and Do e never spoke to Daughter about the allegation. Doe explained that he info rmed school administration and that he understood the allegation to have been reca nted the next day. Doe also said the school took no action against him and Daught er was removed from his classroom.
Neither Mother nor Daughter testified at the PCR hearing. As noted above, Doe spoke only with Mother and with school administration about this incident.
Trial counsel gave a different account of this incident at the PCR hearing. Counsel explained he had been aware Daughter prev iously made some sort of complaint against a former teacher and said he unders tood the incident to have been minor. Counsel said Petitioner and ot her members of the family did not provide "a lot of substance" when counsel discussed it with them. Counsel said he learned of the incident from a letter Mother wrote. Moth er's letter said Daughter "almost had a teacher fired because she [Daughter] said he [Doe] said, 'what color is your underwear.' But he [Doe] sa id, 'no one wants to see that, pull your pants up.'"

Trial counsel said there were several reas ons he did not speak with Doe about this incident. He said that he took Mother's le tter at face value and that neither the letter nor his conversations with Petitioner and Petitione r's family suggested the incident was noteworthy or relevant. Counsel expl ained that he could see himself telling a teenage girl to pull her pants up and th at nobody wanted to see her underwear. Counsel also said nobody ever asked him to locate Doe, contact Do e, or call Doe as a witness.
Petitioner disputed trial counsel 's recollection. He testif ied he told trial counsel about Doe, assumed counsel would speak to Doe as part of his investigation, and always assumed counsel would call Doe as a witness. Petitioner believed the incident with Doe was evidence Daughter "had a propensity" to make up "stories."The PCR court denied relief. The court did not specifi cally rule on whether trial counsel was deficient. The court grounded its denial of relief on the finding that Petitioner failed to establish Doe's testimony would have been admissible or that trial counsel's failure to introdu ce Doe's testimony prejudiced Petitioner.

ISSUE ON APPEAL

Whether the PCR court erred in concludi ng Petitioner did not establish that Doe's testimony about the alleged false allegation would be admissible.

STANDARD OF REVIEW

"Our standard of review in PCR cases de pends on the specific issue before us. We defer to a PCR court's finding s of fact and will uphold them if there is evidence in the record to support them." Smalls v. State , 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018); see also Strickland v. Washington , 466 U.S. 668, 698 (1984) (noting "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact"). "We review qu estions of law de novo, with no deference to [the PCR court]." Smalls , 422 S.C. at 180–81, 810 S.E.2d at 839.

LAW/ANALYSIS
Petitioner's argument has two co mponents. First, Petitioner claims trial counsel was deficient for not speaking with Doe. Sec ond, Petitioner claims c ounsel was deficient for failing to present evidence of Daught er's false allegation against Doe.

As noted above, the PCR court did not rule on whether trial counsel was deficient for not speaking with Doe, but instead gr ounded its denial of relief on the finding that Petitioner failed to establish Doe's testimony would have been admissible and failed to establish prejudice.

We will follow the same course. Strickland explains a court is not required to address all aspects of a claim that trial couns el was ineffective if the absence of proof on any part precludes relief. 466 U.S. at 697. We therefore turn to Petitioner's argument that trial counsel was deficient for failing to present evidence Daughter leveled a false allega tion against Doe.
The rules of evidence recognize several av enues for impeaching a witness. Common methods are prior bad acts showing motive or absence of mistak e, evidence of the witness's general character for truthful ness, and certain pr ior convictions. See Rules 404(b), 608(a), and 609, SCRE. This is not a complete list. The point is that withone exception we mention later in this op inion, the rules of evidence govern how a party attacks a witness's credibility.
Petitioner argues testimony about Daughter's allegations against Doe would be admissible under three rules: Rules 608, 404(b), and 613, SCRE. As we explain below, we respectfully disagree.
Testimony Regarding Character for Truthfulness
Rule 608 allows evidence in the form of an opinion regarding a witness's character for truthfulness or untruthfulness. It al so permits asking a witness about specific instances of that witness's conduct if the conduct is probative of the witness's truthfulness or untruthfulness. Id.
We respectfully disagree with Petitioner's cl aim that this rule would permit him to present his own testimony, Mother's tes timony, or Doe's testimony about Daughter's allegations against Doe. Ru le 608(b) explicitly bars extr insic evidence related to specific instances of a witness's conduct. See also Mizell v. Glover , 351 S.C. 392, 401, 570 S.E.2d 176, 180 (2002) ("Rule 608(b) allows specific instances of conduct to be inquired into on cross, but does not allow those instances of conduct to be proved by extrinsic evidence. "). Thus, although there is no question trial counsel could have asked Daughter about the Do e allegation, Rule 608 would not be a vehicle for anyone else to offer testimony regarding the allegation.
Prior Bad Act Testimony
Rule 404(b) allows evidence of a witness's prior bad acts if offered "to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." The prior bad act must be proved by clear and convincing evidence if it did not result in a conviction. State v. Clasby , 385 S.C. 148, 155, 682 S.E.2d 892, 895 (2009). Evidence of prior bad acts also remains s ubject to Rule 403, SCRE's probative versus prejudicial balancing test. Id . at 155–56, 682 S.E.2d at 896.

There are two reasons we be lieve it is doubtful the trial court would have allowed testimony from Petitioner, Mother , or Doe under Rule 404(b).
First, the testimony about th e Doe allegation was varying and inconsistent. Trial counsel testified Mother's letter did not de scribe the allegation as having any sexual connection and that neither Petitioner nor hi s family ever asked counsel to contact Doe. Doe said he had been accused of making an inappropriate comment to Daughter and her friend, but his version wa s inadmissible hearsay because he spokeonly with Mother, not Daughter. Petiti oner's testimony went further and was different than everyone else's. Petitioner claimed Daughter accused Doe of making an inappropriate comment and of smacki ng Daughter and her friend on the behind. There was no first-hand account of Daught er's accusation against Doe. Neither Daughter nor Mother testified at the PCR hearing.

This matters because the trial court has discretion to exclude evidence if admitting the evidence would lead to a "t rial within a trial" that might confuse the issues and mislead the jury. State v. Cottrell , 421 S.C. 622, 641, 809 S.E.2d 423, 434 (2017). The variance in witness testimony and the la ck of a first-hand account make it far from clear the testimony would be admitted.
Second, the Doe allegation's probative value is questionable. There do not appear to be many South Carolina cases involving prior false allegations made by a victim in a criminal sexual conduct case. Our su preme court articulated the standards for admitting such evidence in State v. Boiter , 302 S.C. 381, 383– 84, 396 S.E.2d 364, 365 (1990). Boiter explains a trial court should determine whether the prior allegation is indeed false before consid ering "remoteness in time" and "factual similarity between [the] prior and presen t allegations to dete rmine relevancy." Id

. This framework appears to follow the same general approach that applies in other jurisdictions, and there have been lots of similar cases in other jurisdictions. Speaking generally, prior fals e allegations are allowed if the allegations "suggest a pattern" that casts "substantial doub t" on the charges at issue. People v. Diaz , 988 N.E.2d 473, 477 (N.Y. 2013) (quoting People v. Mandel , 401 N.E.2d 185, 187 (N.Y. 1979)). One formulation of the rule is th at "if the prior accusations are similar enough to the present ones and shown to be false, a motive can be inferred and from it a plausible doubt or disbelief as to the witness' present testimony." White v. Coplan , 399 F.3d 18, 26 (1st Cir. 2005).
The rationale for excluding prior false a ccusations that do not have a significant degree of similarity to the charge at i ssue is that those false claims lack any meaningful probative value. As one noted juri st explained, "[t]he fact that a teenage girl has a disordered past and lies a lot (w ho doesn't?) does not predict that she will make up stories about having sex." Redmond v. Kingston , 240 F.3d 590, 591 (7th Cir. 2001) (Posner, J.). In other words, ev idence that a witness has lied in the past has questionable value "since very few people, other than the occasional saint, go through life without ever lying." Id . at 593.

Our review of these decisions leads us to believe that it is doubtful the trial court would have admitted evidence of Daughter's allegations against Doe.At one end of the spectrum are cases in which the purported victim's prior false allegations were strikingly similar to the allegations being tried. State v. Cox , for example, was a rape trial. 468 A.2d 319 (Md. 1983). Th e victim had previously accused another person of se xual misconduct before recanting the allegation at trial. Id . at 320–21. Another similar case is White v. Coplan , in which the prior false allegations "bore a close rese mblance" to the charges at issue. 399 F.3d at 24. A third example is State v. Dennis , which is of the same char acter as the others. 893 A.2d 250, 266–67 (R.I. 2006).
At the other end of the spectrum are lies that have no similarity whatsoever to the accusations on trial. For example, the fact that the alleged vict im previously took her mother's car without permission, wrecked the car, and lied about the circumstances before recanting had no probativ e value with respect to the victim's allegation that she was raped. State v. Wilson , 256 S.W.3d 58, 60–62 (Mo. 2008), abrogated on other grounds by Mitchell v. Kardesch , 313 S.W.3d 667 (Mo. 2010). Less-extreme examples—all of them in se x crime cases—include cases where the alleged victim previously accused someone of physical abuse, excessive discipline, and peering at the victim under a bathroom stall. See Lopez v. State , 18 S.W.3d 220, 225–26 (Tex. Crim. App. 2000); State v. Botelho , 753 A.2d 343, 346–47 (R.I. 2000); State v. Ellsworth , 709 A.2d 768, 772–74 (N.H. 1998). We also note State v. Brum
, a case affirming a trial court's decision to ex clude evidence of a prior false allegation even though that allegation and the conduc t for which the defendant was on trial plainly had a sexual nature. 923 A.2d 1068, 1074–75 (N.H. 2007).
In light of these cases (and others), we find there is no reasonable probability a trial court would have found Daughter 's allegations against Doe to be probative evidence of motive, a common scheme or plan, or any other ground recognized by Rule 404(b). Even adopting Petitioner's version of the Doe allegation— that Doe made an inappropriate comment before smacking Daughter and her friend on their behinds— the allegation bears no similarity to Daug hter's allegation that Petitioner fondled her and sexually abused her seve ral times, over several years.
Petitioner argues the allegations against hi m are sufficiently similar to the Doe allegations because both are evidence th at Daughter manufactures accusations to avoid punishment and improve her circumstances. Respectfully, this characterization of these incidents is too br oad and generic. The events are vastly more different than they ar e similar. We again note Boiter , which held "factual similarity" was relevant when a trial court is deciding whether to admit evidence of a victim's prior false allegation. 302 S.C. at 383–84, 396 S.E.2d at 365.It is worth mentioning that any restrictio ns imposed by the rule s of evidence must yield if they conflict with the defendant's ri ght to effective cross-examination; a right that is guaranteed by both the St ate and Federal Constitution. See Davis v. Alaska

, 415 U.S. 308, 316–17 (1974) ("We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination."); State v. Cooper , 291 S.C. 351, 355, 353 S.E.2d 451, 454 (1987). Some of the cases we cite in our analysis of Rule 404(b) did not turn on that rule, but on whether preventing evidence of the prior false accusation violated the defenda nt's constitutional rights. See
, e.g. , Botelho , 753 A.2d at 345–47; Lopez , 18 S.W.3d at 223. We cite thes e cases because their discussion of "similarity" between prior false allega tions and the charges being tried seem particularly germane to the purposes Rule 404(b) identifies for potential evidence.

Prior Inconsistent Statement
Rule 613 explains how to cross-examine a witness who has previously given a statement that contradicts the witness' s in-court testimony. Here, the argument seems to be that Petitioner could have asked Daughter a bout her allegations against Doe and called other witne sses if Daughter denied ma king the accusation.
Although a witness may generally be cross-examined on anything, even a collateral matter, as credibility is alwa ys an issue, extrinsic evid ence of a prior inconsistent statement is not admissible if the prior statement concerns a collateral matter. See 28 Charles Alan Wright & Victor J. Gold, Federal Practice & Procedure Evidence § 6206 (2d ed. 2012). Thus, and as is tr ue under Rule 608, Pe titioner could have asked Daughter about the Doe allegation but would be stuck with her answer.
A skeptical reader might respond by clai ming that Daughter's credibility was not a collateral matter, but was the very heart of th e case. That is true of any case relying chiefly on witness testimony. We unde rstand and expressly do not overlook the attraction of allowing testimony that an accuser in this sort of case has made a previous allegation of improper conduct and th en recanted that allegation. Even so, this case was not about Daughter's purported allegation against Doe, and as we have already discussed, the nature of that claim—a false report of an inappropriate comment that was immediately recanted—is worlds apart from Daughter's claim that Petitioner repeatedly sexually abused her over a prolonged period of time. See also State v. Finley , 300 S.C. 196, 201, 387 S.E.2d 88, 90 (1989) ("[T]he state's interest in protecting criminal sexual conduct victims is stronger than the right of a defendant to attack such a victim's ch aracter in a manner that has li mited or no relevance to the question of guilt.").Failure to Cross-Examine Daughter with Doe Allegation
Petitioner argues that at a minimum, trial counsel was deficient for failing to ask Daughter about the Doe allegation.
We have no idea what Daughter's answer or explanation for the Doe allegation would have been. Daughter did not testify at the PCR hearing. We do not see how we could find this alleged deficiency to be prejudicial without some sense of what Daughter's explanation would have been. See
, e.g. , Glover v. State , 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995) (finding the absence of PCR te stimony from alleged alibi witnesses meant petiti oner "could not establish any prejudice from counsel's failure to contact these witnesses").
We also note Daughter testified at trial th at she was removed from her family's home as a result of her allegations against Petitioner and that she lived in a series of foster homes before being adopted by her uncle (her mother's brother) and his wife. Whatever answer Daughter might have gi ven if cross-examined about the Doe allegation, we question whether that an swer would have blunted the force of Daughter's testimony that her allegations against Petitioner did not improve her home life, but instead threw that life into turmoil.

CONCLUSION

For the foregoing reasons, the PCR court's denial of relief is

AFFIRMED. 1

GEATHERS, J., concurs.

LOCKEMY, C.J., dissenting: I respectfully dissent. In my view, trial counsel provided ineffective assistance of counsel by failing to i nvestigate and interview Doe and for failing to elicit tes timony related to Daughter's accusations against Doe. Trial counsel had a duty to investigate Da ughter's prior accusations and this duty was even more acute given trial counsel 's theory of the case—that Daughter manufactured the accusation to avoid punish ment. Trial counsel's reason for failing to investigate the accusation was that he "could see [him]self telling some young girl 'to pull your pants up.' Nobody wants to see [the] color [of] your underwear." However, whether trial counsel could see himself saying this to a student was not a

1 We decide this case w ithout oral argument per Rule 215, SCACR.sufficient reason for his failure to see th e relevance of Daughter's potential false accusation against Doe.

Although there was a differe nce between what Petitioner and Mother told trial counsel regarding Daughter's accusations, in either scenario, trial counsel was informed that Daughter made a false accusation against Doe to avoid punishment and this was the same premise upon which Pe titioner's defense rested. In my view that was enough information to require that trial counsel at a very minimum talk to Doe. Had trial counsel done so, he wo uld have understood that the conduct was much more sexually improper than he tes tified he understood it to be at the PCR hearing. Thus, trial counsel provided in effective assistance of counsel by failing to investigate.

In my view Petitioner was prejudiced becau se trial counsel could have presented evidence of Daughter's accusation against Doe. Specifically, trial counsel could have asked Daughter whether she had accused Doe of asking her inappropriate sexual questions. If she admitted to ha ving accused Doe of asking inappropriate questions, then the jury would have hear d her admission, and trial counsel would have been able to cross- examine Daughter further under Boiter

. See 302 S.C. at 383–84, 396 S.E.2d at 365. I respectfully disagree with th e majority's analysis of the Boiter factors. We must examine "the fact ual similarity between [the] prior and present allegations to determine re levancy." Id . A key factor in this case is Petitioner's stance that Daughter made accusations against others to avoid punishment. The majority believes that Daughter's allegations against Doe were much less egregious than those she made against Petitioner. No doubt that is so. However, they were still alle gations of inappropr iate conduct of a se xual nature that Daughter claimed were directed at her. Petitioner's entire defense rested on the foundation that Daughter had made up the allegations against him to avoid punishment and that she had recanted her a llegations about the c onduct. Similarly, Doe's statement indicated that he was a bout to punish her for conduct and then she accused him of inappropriate conduct of a sexual nature, which she later recanted. The trial court never had an opportunity to rule upon whether Doe's statement was true or false, and the PCR court never made a finding that Doe's testimony was untrue. Further, the accusations that Doe referenced were not so remote in time compared to those against Petitioner because the two accusations were between one and three years apart. Us ing the factors set out in Boiter , the accusations against Doe would have been admissible.

On the other hand, if Daughter had denied accusing Doe, trial counsel could have offered evidence regarding th e accusation against him. See Clinebell v.Commonwealth , 368 S.E.2d 263, 266 (Va. 1988) ("Consequently, in a sex crime case, the complaining witne ss may be cross-examined a bout prior false accusations, and if the witness denies making the stat ement, the defense may submit proof of such charges."). Rule 613, SCRE, states, "If a witness does not admit that he has made the prior inconsistent statement, ex trinsic evidence of such statement is admissible." In my view Daughter's stat ement regarding a false accusation was not a collateral matter. See State v. Williams , 409 S.C. 455, 469, 761 S.E.2d 770, 778 (Ct. App. 2014) (stating evidence is not co llateral if is directly relevant to the ultimate issue at trial: a defendant's innocence).

Further, because there was no physical ev idence and Petitioner's guilt came down to witness credibility, there is a reasonable proba bility that but for trial counsel's failure to investigate and elicit testimony, the re sult of Petitioner's trial would have been different. See Strickland , 466 U.S. at 694 (1984) ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermin e confidence in the outcome.").
In summary, trial counsel was ineffective fo r failing to investigat e and his failure to do so prejudiced Petitioner.