HE STATE OF SOUTH CAROLINA 

In The Supreme Court 

In the Matter of the Care and Treatment of Vincent Neal 

Way, Petitioner/Respondent, 

v. 

The State of South Carolina, Respondent/Petitioner. 

Appellate Case No. 2011-199686 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal From Charleston County 

The Honorable Deadra L. Jefferson, Circuit Court Judge 

Opinion No. 27444 

Heard November 20, 2013 – Filed September 3, 2014 

AFFIRMED AS MODIFIED IN PART; 

CERTIORARI DISMISSED IN PART AS 

IMPROVIDENTLY GRANTED 

Appellate Defender LaNelle Cantey Durant, of 

Columbia, for Petitioner/Appellant. 

Attorney General Alan Wilson and Assistant Attorney 

General William M. Blitch, both of Columbia, for 

Respondent/Petitioner. 
JUSTICE BEATTY: A jury found Vincent Neal Way met 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 circuit court ordered Way to begin 

involuntary civil commitment for long-term control, care, and treatment in the SVP 

treatment program administered by the South Carolina Department of Mental 

Health. Way appealed, and the Court of Appeals affirmed. In re the Care & 

Treatment of Way, Op. No. 2011-UP-268 (S.C. Ct. App. filed Aug. 24, 2011). 

This Court granted cross petitions for a writ of certiorari filed by Way and the 

State. As to Way's appeal, we affirm as modified, and we dismiss the State's 

petition for a writ of certiorari as improvidently granted. 

I. FACTS 

In 1993, Way pled guilty to committing a lewd act on a minor. The victim 

was Way's 13-year-old niece, who was spending the night with Way (who was 

then about 28 years old) and his wife. The victim reported that Way put his hand 

inside her clothing while she was sleeping on the couch and fondled her, kissed her 

thigh, and then laid on her and "began humping her." Way was sentenced to ten 

years in prison, suspended upon the service of eighteen months in prison and five 

years of probation. 

In 1995, while on probation, Way pled guilty to contributing to the 

delinquency of a minor. In that matter, Way allowed two girls who were 

runaways, one 13 and one 15, to spend the night at his home without notifying the 

police. 

While still on probation in 1997, Way pled guilty to committing a lewd act 

upon a minor. The victim was a 13-year-old girl, who reported that Way met her 

at a boat dock in 1995 and gave her marijuana, then had sexual intercourse with 

her. Way was sentenced to fifteen years in prison for this offense. 

In 2007, prior to his release from prison, Way was referred to the 

multidisciplinary team, which determined there was probable cause to believe Way 
 

met the statutory definition of an SVP.1 The multidisciplinary team referred Way's 

case to the prosecutor's review committee, which filed a petition with the circuit 

court for civil commitment proceedings. The circuit court concluded probable 

cause existed and ordered a mental evaluation of Way to be performed by Dr. 

Donna Schwartz-Watts. Dr. Schwartz-Watts performed an evaluation and was the 

State's expert. Way also obtained an independent mental evaluation by an expert 

of his own choosing, Dr. Tom Martin. 

At the civil commitment proceeding in 2009, Dr. Schwartz-Watts testified 

that she believed Way suffered from a mental abnormality or personality disorder 

as defined by the SVP Act. Specifically, she diagnosed him as having a sexual 

disorder, not otherwise specified, based on his prior sexual history with several 13-

year-old girls. She also diagnosed Way as having amnesia (for events prior to 

1994) based on a head injury he sustained in a car accident in 1994. She found, 

however, that any memory loss was not due to brain damage because testing 

revealed Way has "a high average IQ." 

Dr. Schwartz-Watts stated her evaluation indicated Way was likely to reoffend. In particular, she noted his subsequent offenses occurred while he was still 

on probation and the incidents occurred in places where others were present, which 

showed Way had an inability to control his impulses. 

Just before Way testified, Way's counsel renewed a motion to preclude the 

State from mentioning the fact that Way had seen an expert of his own choosing, 

Dr. Martin, who would not be testifying. Counsel acknowledged Way saw Dr. 

Martin and was evaluated, but stated the doctor did not make a report of his 

findings. 

The circuit court observed that one can always comment about a witness 

who is not called, and that it is done every day in criminal and civil cases. Way's 

counsel countered that the inference usually applies to fact witnesses, whereas 

here, they consulted an expert for an evaluation in accordance with a statute that 

1 An SVP is defined 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 person likely to engage in acts of sexual violence if not confined in 

a secure facility for long-term control, care, and treatment." S.C. Code Ann. § 44-

48-30(1)(a)-(b) (Supp. 2013). 
made the funds available for a second evaluation. The court disagreed, stating the 

statute merely creates a right. The court explained, "I don't think there is anything 

that precludes the State from asking him, did you demand to be evaluated, to have 

an independent evaluation, and was that evaluation done? I think that ends the 

inquiry." 

During cross-examination, the State asked Way if, "in preparation for this 

hearing, you were transported . . . from the jail to Columbia to see a Dr. Martin to 

be evaluated for these proceedings," and Way confirmed that he was transported to 

see a doctor and that he was asked questions and had evaluations, but he did not 

recall any specifics. 

In closing argument, the State made the following additional reference to Dr. 

Martin and invoked what is commonly called the "missing witness rule," arguing 

the jury could infer the absence of Dr. Martin indicated that his testimony would 

have been adverse to Way: 

Now on cross-examination I asked the respondent, did you go 

to be evaluated by Dr. Martin pursuant to this case? 

. . . . 

Now Dr. Martin is not here. And the question, I think the 

inference you can draw from that is would Dr. Martin's testimony, if 

he was here, be adverse to the respondent? So, that's where we are. 

At the conclusion of the evidence, the jury found Way met the definition of 

an SVP, and the circuit court ordered him to be civilly committed for long-term 

control, care and treatment. Way appealed, and the Court of Appeals affirmed. 

This Court has granted cross petitions for certiorari by Way and the State regarding 

the State's cross-examination of Way and its closing argument. 

II. STANDARD OF REVIEW 

"In an action at law, on appeal of a case 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). "The scope of 

cross-examination rests largely in the discretion of the trial court." Duncan v. Ford 

Motor Co., 385 S.C. 119, 133, 682 S.E.2d 877, 884 (Ct. App. 2009) (citation 
omitted). Likewise, "[a] trial court is allowed 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). 

"An abuse of discretion occurs when the trial court's ruling is based on an 

error of law or, when grounded in factual 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 in the court's 

ruling, but also resulting prejudice. Id. at 390, 529 S.E.2d at 539; see also Duncan, 

385 S.C. at 133, 682 S.E.2d at 884 (stating reversal requires a showing of both a 

manifest abuse of discretion and prejudice). 

III. LAW/ANALYSIS 

The pertinent issues before the Court of Appeals concerned (1) the crossexamination of Way, during which the State asked Way whether he had another 

evaluation performed by Dr. Martin; and (2) the State's closing argument, in which 

it argued an adverse inference could be taken by the jury from Dr. Martin's absence 

at trial. The Court of Appeals "agree[d] with the trial court's decision to allow the 

State to cross-examine Way regarding a second mental evaluation, [but] h[e]ld it 

was improper for the State to imply a negative inference regarding the absence of 

Way's expert witness before the jury." In re the Care & Treatment of Way, Op. 

No. 2011-UP-268 (S.C. Ct. App. filed Aug. 24, 2011), slip op. at 4. However, the 

Court of Appeals affirmed on the basis of harmless error. Id. at 6. 

A. Way's Appeal 

In his appeal, Way challenges the propriety of both the State's crossexamination of Way and its invocation of the missing witness rule in closing 

argument. 

We disagree with the Court of Appeals to the extent it found it did not 

constitute error for the State to question Way about Dr. Martin. The Court of 

Appeals found this issue should properly be addressed according to the South 

Carolina Rules of Evidence (SCRE) and established precedent. Id. at 4. The court 

noted all relevant evidence is generally admissible under Rule 402, SCRE, yet 

relevant evidence may be excluded under Rule 403, SCRE if its probative value is 

substantially outweighed by the danger of unfair prejudice. Id. The court also 

cited precedent for the proposition that a trial judge has wide latitude in the 
admissibility of evidence, and that an appellate court reviews such rulings based on 

an abuse of discretion standard. Id. (citing, inter alia, State v. Torres, 390 S.C. 

618, 703 S.E.2d 226 (2010)). 

While the Court of Appeals was correct that the admission of this testimony 

is governed by the SCRE and our case law, for the reasons discussed in another 

decision issued today by this Court, In re the Care & Treatment of Gonzalez, Op. 

No. 27443 (S.C. Sup. Ct. filed September 3, 2014) we find the probative value of 

questioning Way about his retention of a non-testifying psychiatric expert was 

substantially outweighed by the danger of unfair prejudice. See Rule 403, SCRE 

("Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, 

or misleading the jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence."). As a result, we conclude the State 

should not have been allowed to cross-examine Way about his retention of his nontestifying expert witness, Dr. Martin. 

We further conclude that it was error to allow the State to assert during 

closing argument that the jury could infer the missing witness's testimony would 

have been adverse to Way's case. The Court of Appeals found it was error because 

when a party lacks control over the retained expert witness, an adverse inference is 

improper. Way, No. 2011-UP-268, slip op. at 5. As we explained in Gonzalez, we 

believe invocation of the missing witness rule should be limited to fact witnesses, 

and it should not be invoked as to medical, psychological, psychiatric, or similar 

medical expert opinion witnesses. 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 appropriate regarding the 

opinions held by medical, psychological, psychiatric, or similar medical experts, as 

the condition of a party is based upon numerous complex factors that do not 

readily lend themselves to being reduced to a discrete, adverse inference, as 

compared to a fact witness. 

That being said, however, we must next examine whether the errors as to the 

State's cross-examination and closing argument constitute reversible error under a 

harmless error analysis. "Error is harmless where it could not have reasonably 

affected the result of the trial." Judy v. Judy, 384 S.C. 634, 646, 682 S.E.2d 836, 

842 (Ct. App. 2009). "Generally, appellate courts will not set aside judgments due 

to insubstantial errors not affecting the result." Id. (citing State v. Sherard, 303 
 

 

S.C. 172, 176, 399 S.E.2d 595, 597 (1991)). "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." Id. (citation omitted). 

In this case, the Court of Appeals held any error was harmless beyond a 

reasonable doubt, stating "[e]vidence of Way's prior sexual criminal history, the 

testimony of the State's expert witness, and the testimony of the victim of Way's 

1993 [] offense provided relevant and substantive evidence to support the jury's 

determination." Way, No. 2011-UP-268, slip op. at 6. 

During cross-examination, the State asked Way if he had seen Dr. Martin for 

an evaluation, and during cross and closing the State never referred to Dr. Martin 

as Way's expert or mentioned that Way had retained Dr. Martin for an independent 

evaluation but then did not call him as a witness, so there was only limited 

information elicited at trial in this regard. All of the information regarding Dr. 

Martin's role as Way's expert was confined to the colloquy among the parties and 

the circuit court. In addition, Way was not prevented from rebutting the adverse 

inference if he deemed it necessary. See Dansbury v. State, 1 A.3d 507, 522 (Md. 

Ct. Spec. App. 2010) ("Where a party raises the missing witness rule during 

closing argument, its use is just that—an argument. . . . Furthermore, the opposing 

side also has an opportunity to refute the argument and counter with reasons why 

the inference is inappropriate." (alteration in original) (citation omitted)). 

Consequently, we agree with the Court of Appeals that any error could not have 

reasonably affected the outcome here. 

B. The State's Appeal 

The State has filed a cross appeal in this matter. "Any party aggrieved may 

appeal in the cases prescribed in this title." S.C. Code Ann. § 18-1-30 (1985); see 

also Rule 201(b), SCACR ("Only a party aggrieved by an order, judgment, or 

sentence may appeal."). An "aggrieved party" as contemplated by this section is 

one who is injured in a legal sense, i.e., one who has been denied a personal or 

property right, or where a burden or obligation has been imposed. Dunson v. 

Dunson, 278 S.C. 210, 294 S.E.2d 39 (1982); Bivens v. Knight, 254 S.C. 10, 173 

S.E.2d 150 (1970). Thus, a party ordinarily may not appeal from a judgment, 

order, or decree in his own favor. Wilson v. S. Ry., Carolina Div., 123 S.C. 399, 

115 S.E. 764 (1923). 
The statutory requirement rests on the principle that a reviewing court is 

concerned with correcting errors that have practically wronged the appealing party. 

Cisson v. McWhorter, 255 S.C. 174, 177 S.E.2d 603 (1970). When an appellant 

has not been prejudicially or injuriously affected by the judgment, the party has no 

standing to appeal. Id. at 178, 177 S.E.2d at 605; see also First Union Nat'l Bank 

of S.C. v. Soden, 333 S.C. 554, 511 S.E.2d 372 (Ct. App. 1998). It is this Court's 

duty to reject an appeal by a party who is not aggrieved in the legal sense by the 

judgment of the trial court. Cisson, 255 S.C. at 178, 177 S.E.2d at 605. 

In this case, although the State disputes some findings made by the circuit 

court, it has prevailed on the ultimate issues that were decided, i.e., Way's status as 

an SVP and his involuntary civil commitment have been upheld. Consequently, 

the State is not an aggrieved party in the legal sense, so we dismiss certiorari as 

improvidently granted as to the State. 

IV. CONCLUSION 

Based on the foregoing, the decision of the Court of Appeals is affirmed as 

modified as to Way's appeal, and we dismiss certiorari as improvidently granted as 

to the State's cross appeal. 

AFFIRMED AS MODIFIED IN PART; CERTIORARI DISMISSED 

IN PART AS IMPROVIDENTLY GRANTED. 

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

concurring in result only in a separate opinion. 

 
 

JUSTICE PLEICONES: I agree with the majority that it was error for the trial 

judge to permit the State to invoke the missing witness rule2

 for the reasons set 

forth in my concurrence In the Matter of Gonzalez, Op. No. 27443 S.C. ___, ___ 

S.E.2d ___, 2014 WL (S.C. Sup. Ct. filed September 3, 2014) (Pleicones, J., 

concurring). I also agree the error was harmless.3

 I therefore concur in result only 

and would affirm the Court of Appeals' decision as modified.4 

2

 I disagree with the majority's discussion of Rule 403. As I understand the 

majority's opinion in Gonzalez, the missing witness rule can never be invoked for 

opinion witnesses. Therefore, a Rule 403 analysis is unnecessary. Likewise, I 

would find the majority's distinction between the invocation of the rule on crossexamination or during closing argument unnecessary. 

3

 Unlike the majority, I do not base my harmless error finding on the fact that Way 

could have rebutted the adverse inference if he deemed it necessary. 

4

 I disagree that the State cannot seek certiorari because it was not an aggrieved 

party. Rule 242(a), SCACR, permits any party to seek a writ of certiorari to 

review a final decision of the Court of Appeals. I would not impose a limitation on 

our certiorari jurisdiction as the majority has done. Therefore, I believe the 

majority has erred in dismissing the State's cross-petition as improvidently granted.