THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent, 

v.

Craig Carl Busse, Petitioner.

Appellate Case No. 2021-000076

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Newberry County

Donald B. Hocker, Circuit Court Judge

Opinion No. 28138

Heard April 28, 2022 – Filed March 8, 2023

AFFIRMED

Vicki D. Koutsogiannis and James Ross Snell Jr., Law 

Office of James R. Snell Jr., LLC, of Lexington, for 

Petitioner.

Attorney General Alan McCrory Wilson, Deputy Attorney 

General Donald J. Zelenka, Senior Assistant Deputy 

Attorney General William M. Blitch Jr., and Senior 

Assistant Deputy Attorney General John Benjamin Aplin, 

of Columbia; David Matthew Stumbo, of Greenwood, all 

for Respondent.
JUSTICE FEW: Craig Carl Busse appealed his conviction for second-degree 

criminal sexual conduct with a minor, claiming the deputy solicitor improperly 

vouched for the victim's credibility in a statement he made during closing argument. 

The court of appeals affirmed. We find the deputy solicitor's statement was 

technically in error and the trial court should have sustained Busse's objection. 

However, the statement did not amount to vouching. We find no reversible error 

and affirm. 

I. Facts and Procedural History 

Busse was the victim's stepfather. The victim's mother—Busse's wife—found text 

messages on the victim's cell phone in which the victim told her boyfriend that Busse 

sexually assaulted her. The victim was fourteen years old. When the mother 

confronted the victim, she denied the sexual assaults occurred. Eighteen months 

later, the victim told a friend at her school Busse had been sexually assaulting her. 

The friend reported it to the friend's mother, who then reported it to officials at their 

school. As the law requires, the school officials notified law enforcement authorities 

of the reported abuse. The Department of Social Services took the victim into 

protective custody. In a forensic interview a few weeks later, the victim told the 

interviewer Busse sexually assaulted her "in the span of about two years." 

At trial, the victim testified Busse began touching her when she was in the eighth 

grade. Initially, he touched her breasts and vagina with his hands on top of her 

clothes. He soon began reaching under her clothes to touch her breasts and vagina. 

The sexual assaults progressed to the point he was inserting his fingers inside her

vagina, touching her vagina with his mouth and tongue, and forcing her to perform 

oral sex on him. She testified Busse ejaculated in her mouth once. 

The centerpiece of this appeal is the victim's testimony that Busse attempted to have 

intercourse with her but was unable to have an erection. An assistant solicitor led 

the victim through the following dialogue:

Solicitor: Did [Busse] have any issues achieving an 

erection?

Victim: Yes.

Solicitor: Did he talk about that with you?

Victim: Yes.
Solicitor: So it wasn't just his stomach getting in the 

way?

Victim: He would, he, I don't know what you could 

call it but he had trouble getting an erection.

Solicitor: And you saw this first hand?

Victim: Yes.

Solicitor: And did he also verbalize it?

Victim: Yes.

. . .

Solicitor: So this was the only way you could have 

known about [Busse's] issues with achieving 

an erection?

Victim: Yes.

Solicitor: So multiple times [Busse] attempted to have 

sex with you, is [that] what you're testifying 

to?

Victim: Yes.

When Busse "verbalize[d] it," the victim testified, he told her "it had to do with 

health" but did not explain. The victim's mother verified Busse did have erectile 

dysfunction, but she testified she never discussed her sex life with or around the 

victim. Both the mother and the victim testified the victim did not overhear Busse 

or anyone else talking about his erectile dysfunction and there was no way she could 

have known about it except through Busse's unsuccessful attempts to have 

intercourse with her.

During closing argument, the deputy solicitor stressed the importance of this 

testimony. He told the jury, "But you know, he didn't have intercourse with her. 

You know why? He can't have intercourse with her. He's impotent, cannot sustain 
an erection. What I want you to ask yourselves and what was compelling to me, 

how does she know that." Busse objected "as to anything about what [the deputy 

solicitor] believes and if it's compelling to him," but the trial court overruled the 

objection. The deputy solicitor continued with his closing argument stating, "I'm 

going to repeat what was compelling to me and should be to you, was how did she 

know that." 

The jury convicted Busse of second-degree criminal sexual conduct with a minor, 

and the trial court sentenced him to fifteen years in prison. Busse appealed on 

several grounds and the court of appeals affirmed in an unpublished opinion. State 

v. Busse, Op. No. 2020-UP-307 (S.C. Ct. App. filed Nov. 12, 2020). We granted 

Busse's petition for a writ of certiorari to address whether the deputy solicitor's 

statement "and what was compelling to me" in closing argument was improper 

vouching. 

II. Analysis 

Busse's argument on appeal is not simply that the statement was out of line and the 

trial court should have sustained his objection. He argues, rather, the statement 

amounts to vouching and, thus, the statement "so infected the trial with unfairness 

as to make the resulting conviction a denial of due process." See State v. Reese, 370 

S.C. 31, 38, 633 S.E.2d 898, 901-02 (2006) (when challenging a conviction on direct 

appeal on the basis of an improper closing argument, "it must be shown that the 

argument so infected the trial with unfairness as to make the resulting conviction a 

denial of due process"), overruled on other grounds by State v. Belcher, 385 S.C. 

597, 612 n.10, 685 S.E.2d 802, 810 n.10 (2009). 

All lawyers have a responsibility to advocate zealously on behalf of their client. This 

responsibility is not diminished when the lawyer is the prosecutor in a criminal trial. 

We expect solicitors to "prosecute with earnestness and vigor" on behalf of the State. 

Fortune v. State, 428 S.C. 545, 552, 837 S.E.2d 37, 41 (2019) (quoting Berger v.

United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). A 

prosecutor arguing forcefully during closing argument that the jury should believe a 

particular witness is well within her proper role as a zealous advocate, so long as the

argument is based on evidence admitted during trial. 

Zealous advocacy crosses the line and becomes improper vouching, however, when 

the prosecutor indicates to the jury—even implicitly—that her argument as to the 

credibility of a witness is based on anything other than the evidence admitted. The 

verb "vouch"—when speaking "[o]f a lawyer before a jury"—means "to comment 
favorably on the credibility of one or more witnesses based on the lawyer's personal 

knowledge." Vouch, BLACK'S LAW DICTIONARY (11th ed. 2019). The legal concept 

of "vouching" prohibits a prosecutor from giving the jury any indication she knows 

something about the credibility of a witness that the jury does not know, or that is 

based on an event or proceeding outside the presence of the jury. See State v. Kelly, 

343 S.C. 350, 368, 540 S.E.2d 851, 860 (2001) ("Vouching constitutes an assurance

by the prosecuting attorney of the credibility of a Government witness through 

personal knowledge or by other information outside of the testimony before the 

jury." (quoting United States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998))), rev'd

and remanded on other grounds, Kelly v. South Carolina, 534 U.S. 246, 122 S. Ct. 

726, 151 L. Ed. 2d 670 (2002); State v. Shuler, 344 S.C. 604, 630, 545 S.E.2d 805, 

818 (2001) ("Improper vouching occurs when the prosecution . . . mak[es] explicit 

personal assurances of a witness' veracity, or where a prosecutor implicitly vouches 

for a witness' veracity by indicating information not presented to the jury supports 

the testimony," or "when a prosecutor implies he has facts that are not before the 

jury"); 344 S.C. at 629, 545 S.E.2d at 818 (finding no vouching when the solicitor 

did not "imply special knowledge" of the witness's credibility). 

We begin our analysis of whether the deputy solicitor's statement in this case 

amounts to vouching by stressing that the evidence—that the victim knew of Busse's 

erectile dysfunction and the only way she could have known of it was through 

observations she made during Busse's sexual abuse of her—is clearly admissible. 

The State was clearly entitled to drive home to the jury during closing argument the 

importance of this evidence. In particular, it was the deputy solicitor's responsibility

to argue to the jury that this evidence was important to the jury's assessment of the 

victim's credibility. 

To evaluate whether the deputy solicitor—in the course of making this valid point—

crossed the line into vouching, we break the statement down into three elements. 

First, the deputy solicitor used the word "compelling." Second, he said compelling 

"to me." Third, he spoke in the past tense of what "was" compelling. 

We doubt the word "compelling" would have caught anyone's attention were it not 

for our decisions in two cases concerning expert witnesses: State v. Jennings, 394 

S.C. 473, 716 S.E.2d 91 (2011), and State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 

(2013). In Jennings, we reversed the defendant's conviction for lewd act upon a 

child1 on the ground a forensic interviewer wrote in reports introduced into evidence, 

 

1 At the time of the crimes alleged in Jennings, "lewd act upon a child" was codified 

at section 16-15-140 of the South Carolina Code (2003) (repealed 2012). The same 
"the children provided a 'compelling disclosure of abuse.'" 394 S.C. at 479, 716 

S.E.2d at 94. We stated, "For an expert to comment on the veracity of a child's 

accusations of sexual abuse is improper," and we found, "There is no other way 

to interpret the language used in the reports other than to mean the forensic 

interviewer believed the children were being truthful." 394 S.C. at 480, 716 S.E.2d 

at 94. The witness's use of the word "compelling" in that context was improper 

because no witness is permitted to comment on the credibility of another witness. 

Id.; see also Kromah, 401 S.C. at 359, 737 S.E.2d at 500 (holding an expert "should 

not have been allowed to testify about a compelling finding of child abuse as that 

was the equivalent of . . . stating the Child was telling the truth").

In this case, on the other hand, the use of the word compelling was not improper. 

Unlike an expert witness on direct examination, a prosecutor is expected to comment 

on the credibility of the witnesses when making a closing argument. Far from 

improper, as previously explained, doing so is one of the fundamental 

responsibilities of a lawyer. The deputy solicitor was arguing the importance of facts 

in evidence to the jury's determination of the victim's credibility. Thus, Jennings

and Kromah and their disapproval of the use of the word "compelling" are not 

applicable to this case. We find nothing improper in the deputy solicitor's use of the 

word "compelling" as part of his effort to stress the importance of a piece of evidence 

and thus convince the jury to believe the victim's testimony.

Turning to the phrase "to me," we recently addressed the State's use of the first 

person in State v. Reyes, 432 S.C. 394, 853 S.E.2d 334 (2020). We explained the 

State's use of the first person when questioning a witness in that case "could have 

given the jury the perception [the solicitor] believed the witness was telling the 

truth." 432 S.C. at 405, 853 S.E.2d at 340. We relied on Kelly, in which we stated

"the assistant solicitor improperly phrased his questions in the first person." 343 

S.C. at 369 n.12, 540 S.E.2d at 861 n.12. As to the use of the phrase "to me"—unlike 

the use of the word "compelling"—there is no meaningful difference between 

questioning a witness and making a closing argument. In either instance, the State 

should not inject the personal views or opinions of its representative as to the 

credibility of a witness into the jury's thought process. In Kelly, we stated the State's 

use of the first person was "perhaps not technically vouching," but it raised the 

second of two concerns associated with vouching. 343 S.C. at 369, 540 S.E.2d at

860. That concern is "the prosecutor's opinion carries with it the imprimatur of the 

 

conduct is now classified as criminal sexual conduct with a minor in the third 

degree. S.C. Code Ann. § 16-3-655(C) (2015). 
Government and may induce the jury to trust the Government's judgment rather than 

its own view of the evidence." Id. (quoting Walker, 155 F.3d at 184). 

As we did in Reyes and Kelly, we emphasize here that prosecutors must be careful 

how they use the first person in all phases of trial. We stress prosecutors must be 

cautious how they use the first person because we recognize that as a practical matter 

it is impossible for a lawyer to eliminate the first person from their courtroom 

advocacy. For example, a prosecutor would be completely within her proper role to 

tell a jury in opening statement, "I want to introduce myself to you," or "It is my role 

in opening statement to outline for you the evidence the State will present," and "At 

the conclusion of this trial, I am going to stand before you again and I will ask you 

to convict this defendant of this crime." Similarly, a prosecutor on direct 

examination of a witness may say, "I now want to direct you to the events that 

occurred just before you witnessed the crime," or on cross-examination may say, 

"That is not the question I asked you and I want you to answer my question." In 

closing argument, the prosecutor is duty-bound to tell the jury what evidence she 

believes the jury should consider during its deliberations. Statements such as, "I am 

going to outline for you the evidence I want you to focus on because this is the 

evidence that demonstrates the defendant's guilt" or "Here is why I think you should 

find the evidence shows this witness to be credible" are appropriate during closing 

argument because the prosecutor is staying within her role as an advocate, to 

convince the jury—based on the evidence before it—the State has proven the 

defendant guilty beyond a reasonable doubt. In this case, there is nothing wrong 

with the deputy solicitor having told the jury, "I'm going to repeat what [I think]

should be [compelling] to you, was how did she know that." 

In each of these uses of the first person, the prosecutor is playing her proper role as 

an advocate. In Reyes, on the other hand, the prosecutor used the first person to step 

out of her proper role. Telling the witness "when we're in here, we're going to talk 

about the truth," 432 S.C. at 400, 853 S.E.2d at 337, created the risk the jury could 

believe the prosecutor was not there simply to elicit testimony—the proper role of 

an advocate during direct examination—but had previously verified the truth of the 

testimony and through that verification was making a representation to the jury that 

she and the witness "[a]re going to talk about the truth," see 432 S.C. at 405, 853 

S.E.2d at 340 (concluding "the questions . . . were improper" when "the solicitor 

used the first-person pronoun 'we' when questioning Minor about telling the truth"). 

In Kelly, the prosecutor stepped out of her role of eliciting testimony by using the 

first person during her direct examination of the child victim, asking, "What did I

tell you that I absolutely required regarding your testimony to this jury today?" and 

"Did I tell you to tell the truth to this jury?" 343 S.C. at 369 n.12, 540 S.E.2d at 860 
n.12. We held in Kelly and repeated in Reyes, "because the solicitor phrased his 

questions in the first person, the jury could have perceived the solicitor believed the 

witness was testifying truthfully—a belief that carried with it the imprimatur of the 

government, which may have induced the jury to trust the State's judgment about the 

witness." Reyes, 432 S.C. at 404, 853 S.E.2d at 339 (explaining our ruling in Kelly). 

Finally, we acknowledge that when an attorney uses past tense as though referring 

to some prior event or proceeding other than testimony before the jury, it could

suggest the attorney is aware of something the jury does not know. Busse argues the 

deputy solicitor's statement "was compelling" indicates the deputy solicitor was 

aware of a prior determination of the victim's credibility. In the context of the 

closing argument in this case, however, the deputy solicitor's use of past tense clearly

had no such effect. The deputy solicitor began the closing argument by reminding 

the jury he introduced himself to them during jury qualification, and that he told 

them he had been sick the last few weeks and was not sure of the extent to which he 

would be involved in the trial.2

 He then explained he was asked that morning to 

make the closing argument and he agreed. He stated, "I was not as familiar [with 

the case] as [the assistant solicitor] was. And so as I sat here this week, I felt like 

I've kind of been like you guys, learning about this case, hearing from these 

witnesses, and really just kind of taking it all in." He then recounted much of the 

testimony and brought up credibility. He asked rhetorically, "Have y'all thought 

about that while you were listening to the case and testimony?" He said, "I've 

noticed some things. Just like you, I sat here listening and I took notes." He then 

repeatedly talked about "what I heard" and what "I didn't hear," referring through 

appropriate use of the first person to the evidence before the jury. Just before the 

statement to which Busse objected and which is the subject of this appeal, the deputy 

solicitor said, "You know, it occurred to me, as I sat here and listened to it, like you 

guys, . . . ." It was in this context—his recounting for the jury the evidence as he 

and the jury listened to it—that he said "what was compelling to me." Viewed in 

the proper context, therefore, the deputy solicitor's use of the past tense in this case 

was actually to lead the jury to focus on the evidence presented to them, not to 

improperly harken back to his unique knowledge of some event or proceeding 

outside their presence.

 

2 This rather odd exchange is not in our Appendix or the Record on Appeal at the 

court of appeals. The information we have about the exchange comes from what the 

deputy solicitor told the jury as he began his closing argument.
In this case, even with the unnecessary use of "to me," we see minimal risk the jury 

would perceive the deputy solicitor stepped out of his role as an advocate. The point 

of his statement was to highlight the importance of evidence that the victim knew 

Busse suffered from erectile dysfunction. The deputy solicitor was correct to stress 

that if being sexually assaulted was the only way she knew that, the State's case was 

essentially proven. The deputy solicitor's statement, therefore, was directly tied to 

evidence admitted at trial. By using the phrase "was compelling to me," the deputy 

solicitor did no more than tell the jury he believed that this evidence—heard by the 

jury—was important to the jury's decision. That is not vouching.

III. Conclusion

Although the deputy solicitor technically should not have used the first person in the 

way he did, his statement "and what was compelling to me" did not constitute 

vouching. We find no reversible error.

AFFIRMED.

HEARN, Acting Chief Justice, JAMES, J., and Acting Justices James E. 

Lockemy and Aphrodite H. Konduros, concur.