THE STATE OF SOUTH CAROLINA In The Supreme Court

In the Matter of the Care and Treatment of Kenneth Campbell, Petitioner.

Appellate Case No. 2016-001566

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from Lancaster County R. Knox McMahon, Circuit Court Judge

Opinion No. 27898 Heard March 29, 2018 – Filed June 26, 2019

R EVERSED AND REMANDED

Appellate Defender Susan Bar ber Hackett, of Columbia,

for Petitioner.

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

CHIEF JUSTICE BEATTY: A Lancaster County jury found Kenneth Campbell met the statutory defi nition of a sexually violent pre dator (SVP) under South Carolina's SVP Act, S.C. Code Ann. §§ 44-48-10 to -170 (2018). Campbell appealed, and the court of appeals affirmed. In re Care & Treatment of Campbell

, Op. No. 2016-UP-198 (S.C. Ct. A pp. filed May 11, 2016). On cer tiorari, Campbell contends the court of appeals erred in affirming his civil comm itment because the State inappropriately impeached the credibility of Campbell's e xpert witness byintroducing evidence of a recent arrest warrant for an unrelate d sex offender whom the expert had opined was unlikely to reoffend. We find the ad mission of testimony

about a mere arrest warrant of an unrelated individual in a col lateral matter unduly prejudiced Campbell and, therefore , reverse and remand for a ne w commitment proceeding.

I. Factual / Procedural History

The State referred Campbell to the SVP program due to his four alleged sexual assaults of three minor children with whom Campbell slept in th e same house. For two of the assaults, the four-year-old victims recanted, and th e State either dropped the charges or declined to press charges. For the remaining two assaults, one of which was committed while Campbell was out on bond for the othe r, Campbell

entered an Alford 1 plea to criminal sexual conduct with a minor in the first degr ee (CSCM-1st) and pled no contest to committing a lewd act on a ch ild under the age of sixteen. He received an aggregate sentence of twenty years' imprisonment, suspended upon the service of twelve years' imprisonment and th ree years' probation.

Prior to Campbell's release, t he State filed a petition pursuan t to the SVP Act seeking Campbell's civil commitment for long-term control, care , and treatment. See

S.C. Code Ann. § 44-48-30(1) (de fining an SVP 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 con trol, care, and treatment"). The trial court made a determination of probable cause and appointed Dr. Marie Gehle to perform a psy chiatric evaluation of Campbell . Dr. Gehle diagnosed Campbell with pedophilia but opined he was not at a h igh risk to reoffend. The State then obtained an indepe ndent evaluation from Dr. Ana Gomez.

At the jury trial, Dr. Gomez testified on behalf of the State a nd was qualified as an expert in psychiatry and forensic psychiatry. Dr. Gomez stated that after interviewing Campbell, conducting seven different psychiatric t ests that accounted for various risk factors for reoffending, and examining the pertinent records in his file, she diagnosed him with pe dophilic disorder, non-exclusive , indicating he was attracted to children of both sexes. She explained pedophilic disorder cannot be cured but can be managed through appropriate strategies and int ervention.

1 North Carolina v. Alford , 400 U.S. 25 (1970).Dr. Gomez testified Campbell's proposed strategies to avoid reo ffending— including finding religion and "walking away" from children any time he was around them—were wholly unrealistic. Additionally, Dr. Gomez expresse d concern over Campbell's refusal to seek sex offender treatment while incarce rated, which is in itself a significant risk factor for reoffending. Dr. Gomez te stified Campbell's pedophilic disorder caused him serious difficulty in controllin g his behavior, and his

lewd act offense—committed while o ut on bond for the CSCM-1st o ffense— indicated his difficulty in controlling his behavior was ongoin g.

As a result, Dr. Gomez opined Campbell was extremely likely to reoffend if he was not civilly committed. Further, Dr. Gomez testified the potential risk Campbell posed to future child v ictims was more imminent becaus e, after his release, Campbell planned to liv e with his sister, and her gran dchildren and greatgrandchildren would frequently be sleeping in the same house as Campbell, as had his previous victims. In conclu sion, Dr. Gomez testified it wa s her medical opinion Campbell met the criteria for designation as an SVP and he was in need of long-term control, care, and treatm ent at a secure facility.

Dr. Gehle then testified on behalf of Campbell and was qualifie d as an expert in forensic psychiatry. Dr. Gehle stated that after performing a similar interview and review of Campbell's file, she had also diagnosed him with pedo philic disorder, non

exclusive type. Dr. Gehle explained that in coming to her diag nosis, she had used only one of the seven psychiatric tests performed by Dr. Gomez. However, on that test, both doctors scored Campbell in the low- to moderate-risk group for reoffending, which equated to a rate of reoffending of 15.8% in the next five years and 24.3% in the next ten years, approximately the average rate for reoffending for

all sex offenders.

Dr. Gehle testified that although she agreed with much of Dr. G omez's testimony and diagnosis, she disagreed Campbell was likely to r eoffend. Dr. Gehle stated not every person convicted of a sex offense posed a high risk to the public upon his or her release, and Campbell's lack of prison referrals or disciplinary problems showed his ability to control his behavior on a day-to -day basis. Dr. Gehle

also testified she was less conc erned than Dr. Gomez about Camp bell living with his sister and young children upon his release because it was uncle ar to her whether the children would actually spend the night or merely visit while o ther adult family members were present. Dr. Gehle then opined that, were Campbel l to be released, there were safeguards in place to protect the public, such as p lacing him on the sex offender registry and monitoring him while on probation, includ ing through the use

of a GPS anklet. Ultimately, Dr. Gehle concluded that while Ca mpbell suffered

from a mental abnormality, there was insufficient evidence to b elieve Campbell'sabnormality made him likely to r eoffend, and he therefore did n ot meet the criteria for designation as an SVP.

On cross-examination, the State questioned Dr. Gehle's exclusiv e reliance on the results of the single psychiatric test, particularly when D r. Gomez had testified

the test did not account for all of the risk factors associated with sexually reoffending, nor was the test intended by its creators as a sta nd-alone assessment. Furthermore, at the State's prompting, Dr. Gehle conceded Campb ell had "meaningful risk factors" for reoffending, including a dysfunct ional coping style, a resistance to rules and supervision, and a refusal to receive mental health treatment

unless it was court-ordered. Fin ally, Dr. Gehle testified Camp bell did not have an "ideal relapse prevention plan" due to his failure to receive s ex offender treatment and his post-release "access to children" who would sleep in th e same house as Campbell, similar to his prior victims. However, Dr. Gehle sta ted she gave Campbell credit for claiming he would "walk away" from children and not be around them in "that way."

On re-direct examination, Campbell attempted to rehabilitate Dr . Gehle's methodology for evaluating SVPs, emphasizing Dr. Gehle's vast e xperience in evaluating SVPs and having her re iterate her opinion that Campb ell was unlikely to

reoffend.

On re-cross examination, the State's attorney asked if Dr. Gehl e had ever wrongly opined an SVP candidate was unlikely to reoffend, to wh ich Dr. Gehle responded she did not know. The State's questioning then focus ed on Dr. Gehle's pre-commitment evaluation of an unrelated sex offender, Michael Thomas. In doing so, the State's attorney handed Dr. Gehle her report on Thomas and requested Dr. Gehle read the portion of the report aloud where she had opined Thomas was unlikely to reoffend and, therefo re, should not be civilly comm itted as an SVP. The State's attorney next handed Dr. Gehle an arrest warrant for Th omas dated approximately six months before Campbell's commitment proceedin g and requested Dr. Gehle read portions of the arrest warrant into the record. The arrest warrant stated Thomas was wanted for rape, and his DNA was a match for that of the alleged rapist. The State emphasized Tho mas had reoffended within two years of his evaluation by Dr. Gehle and the resultant failure to commit Tho mas as an SVP, stating that due to Dr. Gehle's error in opining Thomas should be released from custody, "another woman ha[d] been raped."

During closing arguments, the State's attorney concluded her re marks by reminding the jury that Dr. Gehle had been wrong before in opin ing other sex offenders were unlikely to reoffend, and that if Dr. Gomez was correct and Dr. Gehlewas wrong again, Campbell was going to "get out and . . . hurt another kid." Hammering that point home, she stated:

So I leave you with this: You have a person who on more than on e occasion [] has sexually assaulted children. He takes no accou ntability [for] what he's done and he hasn' t had sex offender treatment a nd he's refused it when it has been offered. He's going to go live in a house where people are going to allow him to be around children. You heard the testimony. What do you th ink is going to happen?

At the conclusion of the hearing, the jury found beyond a reaso nable doubt that Campbell met the statutory definition of an SVP, and the t rial court ordered Campbell's civil commitment. The court of appeals affirmed Cam pbell's commitment in an unpublished opinion.

II. Standard of Review

In general, the admission or exc lusion of evidence is a matter left to the sound discretion of the trial court, whose ruling will not be reverse d on appeal absent an

abuse of that discretion. Carson v. CSX Transp., Inc. , 400 S.C. 221, 229, 734 S.E.2d 148, 152 (2012). Likewise, the sc ope of cross-examination is l argely within the trial

court's discretion. Bunch v. Charleston & W.C. Ry. Co. , 91 S.C. 139, 142, 74 S.E. 363, 364 (1912). "An appellate cour t will not disturb a trial court's ruling concerning the scope of cross-examination of a witness to test his or her credibility, or to show possible bias or self-interest in testifying, absent a manifest abuse of discretion." Yoho v. Thompson , 345 S.C. 361, 365, 548 S.E.2d 584, 585 (2001).

"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 witho ut evidentiary support." Clark v. Cantrell , 339 S.C. 369, 389, 529 S.E .2d 528, 539 (2000). "To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ru ling and the resulting prejudice, i.e., that there is a reasonable probability the jury's verdict was influenced by the challenged evidence

or the lack thereof." State v. Commander , 396 S.C. 254, 263, 721 S.E.2d 413, 418 (2011); State v. Colf , 337 S.C. 622, 625, 525 S.E.2d 246, 247–48 (2000) ("The scope of cross-examination is within the discretion of the trial judg e, whose decision will not be reversed on appeal absent a showing of prejudice.").III. Discussion

Campbell argues the court of appeals erred in affirming the tri al court's

decision to allow the State to cross-examine Dr. Gehle about Th omas's arrest warrant
because the arrest warrant was irrelevant to the ultimate issue in the case, i.e., whether Campbell was an SVP. Campbell additionally contends th e admission of testimony about Thomas's arrest warrant was more prejudicial th an probative, encouraging the jury to make its decision based on fear of Camp bell rather than whether he met the statutory criteria to be declared an SVP. W hile we find the arrest

warrant fell within the broad sc ope of relevant evidence, we ag ree that, under these facts, the arrest warrant was more prejudicial than probative.

A. Relevance

Relevant evidence is that evidence having any tendency to make the existence of any fact of consequence to the ultimate determination of the action more or less probable than it would otherwise be without the evidence. Rule 401, SCRE.

Considerable latitude and discretion must be allowed the trial court in determining the relevance and admissibility of impeachment evidence. State v. Williams , 263

S.C. 290, 302, 210 S.E.2d 298, 304 (1974). As a result, "'anything having a legitimate tendency to throw light on the accuracy, truthfulnes s, and sincerity of a witness may be shown and consider ed in determining the credit t o be accorded his testimony.'" State v. Jones , 343 S.C. 562, 570, 541 S.E.2d 813, 817 (2001) (citation omitted); see also Rule 611(b), SCRE ("A witness may be cross-examined on any matter relevant to any issue in the case, including credibility .").

Here, Thomas's arrest warrant was a collateral matter because i t could not have been presented during the St ate's case-in-chief to prove C ampbell was an SVP. See State v. Bailey , 279 S.C. 437, 439–40, 308 S.E. 2d 795, 797 (1983) (citations omitted) (holding evidence that the defendant's father and brot her attempted to procure perjured testimony was improperly admitted because it c ould not have been presented as part of the State's case-in-chief and, as a result , was collateral to the defendant's guilt or innocence). However, given the "considera ble latitude" with

which we must review the trial c ourt's relevance determination, we find Thomas's

arrest warrant was in fact relevant to assist the jury in deter mining the weight to

afford Dr. Gehle's testimony, and specifically her opinion as to whether Campbell was likely to reoffend. See, e.g. , Rule 611(b), SCRE (stating a witness may be crossexamined as to any matter related to any relevant issue, includ ing credibility); Jones

, 343 S.C. at 570, 541 S.E.2d at 817 (holding any evidence that s hows the accuracy, truthfulness, or sincerity of a witness may be admissible to he lp the factfinder

determine the witness's credib ility). As a result, the State w as permitted to ask Dr.Gehle whether she was aware if she had ever erred in her SVP ev aluations, and whether she was aware of a specific error. 2

B. Unfair Prejudice

Even when relevant, evidence may be inadmissible if its probati ve value is substantially outweighed by the danger of unfair prejudice. Ru le 403, SCRE; State

v. Wiles , 383 S.C. 151, 158, 679 S.E.2d 172, 176 (2009). "Evidence is unfairly prejudicial if it has an undue tendency to suggest a decision o n an improper basis,

such as an emotional one." State v. Wilson , 345 S.C. 1, 7, 545 S.E.2d 827, 830 (2001) (citing State v. Alexander , 303 S.C. 377, 382, 401 S. E.2d 146, 149 (1991)). The determination of prejudice must be based on the entire reco rd and will generally

turn on the facts of each case. State v. Stokes , 381 S.C. 390, 404, 673 S.E.2d 434, 441 (2009).

Prior to conviction, a defendant is presumed innocent in the ey es of the law.

See State v. Posey , 269 S.C. 500, 503, 238 S.E.2d 176, 177 (1977) (declaring such a statement "elementary"). Thus, a mere arrest warrant in no way proved Thomas in

fact committed the offense for which he was arrested and, stand ing alone, could only

have a minimal impact on Dr. Ge hle's credibility. Accordingly, while it was relevant that Dr. Gehle may have opined in error that Thomas was unlikel y to reoffend,

Thomas's arrest warrant had very low probative value as to whet her Campbell was

an SVP.

In contrast, the manner in which the State used the arrest warr ant was highly prejudicial to Campbell. The State grossly mischaracterized th e results of Dr. Gehle's evaluations of Thomas and Campbell. As Drs. Gomez and Gehle both

2 We note that had Dr. Gehle denied ever being wrong in her SVP evaluations, the State would have been bound by her answer and could not have introduced physical copies of Thomas's arrest warrant or called a witness to testif y Thomas had subsequently been arrested f or another sex offense. See State v. DuBose , 288 S.C. 226, 231, 341 S.E.2d 785, 788 (1986) (per curiam) (holding wher e a witness denies an act involving a matter collateral to a party's case-in-chief, the inquiring party is not permitted to introduce evidence in contradiction or impeach ment). Similarly,

had Dr. Gehle denied ever bei ng wrong, the State could not have skirted the rules and indirectly introduced infor mation from the arrest warrant b y having Dr. Gehle read the warrant aloud because, of course, introducing testimony is the functional equivalent of introducing evidence. Cf. State v. Starnes , 388 S.C. 590, 599, 698 S.E.2d 604, 609 (2010) (statin g testimony is evidence).testified, the results of the common psychological test they pe rformed on Campbell

indicated he was in the low- to moderate-risk group. Individua ls in that group have a rate of reoffending of 15.8% in the next five years and 24.3% in the next ten years,

a rate which is consistent for t hat of all sex offenders. Ther efore, by concluding neither Thomas nor Campbell met the statutory criteria to be cl assified as an SVP, Dr. Gehle did not guarantee either man would never reoffend. Rather, Dr. Gehle

concluded the men were unlikely to reoffend. However, the State asserted otherwise in its cross-examination and closing argument, stating that, ba sed on an arrest
warrant alone , Dr. Gehle had been "wrong" in her evaluation of Thomas; that as a result, "another woman ha[d] been raped;" and that Campbell was likewise bound to

"hurt another kid."

Moreover, the State exacerbated t he prejudicial effect of the a rrest warrant during its closing argument. Specifically, the State emphasize d that on multiple occasions, Campbell had assaulted children sleeping in the same house as him, refused to accept responsibility for his actions, declined to r eceive sex offender treatment while imprisoned, and was planning to live in a house in which minor children would regularly sleep. The State's attorney then asse rted, "You heard the testimony. What do you think is going to happen?" 3 This rhetorical question—the last statement the jury heard pr ior to its deliberations—was a naked attempt by the State to appeal to the jurors' emotions and cloud their ability to impartially weigh

the evidence. See Tappeiner v. State , 416 S.C. 239, 254 n.8, 785 S.E.2d 471, 478

n.8 (2016) (finding an emotional plea to jurors that an accused rapist was a bad actor and could not be trusted to watch the jurors' own family member s had a strong prejudicial impact on jurors' impartiality in part because "the emotional plea was the very last thing the jury heard before beginning its deliberatio ns .

. . [and therefore] was likely at the forefront of the jurors' minds when beginning their discussions");

Von Dohlen v. State , 360 S.C. 598, 609, 602 S.E.2d 738, 744 (2004) (holding the State must tailor its closing arguments so as not to appeal to the personal biases of the jury or arouse the jurors' passions or prejudices).

Weighing the minimal probative va lue of Thomas's arrest warrant against the prejudice resulting from the State's mischaracterization of the import of the warrant, we hold the admission of the warrant unfairly prejudiced Campbe ll because it had

3 Generally, this statement is not problematic. However, in the context of this case, this innocuous statement magnified the unfair prejudice caused by the State's improper use of Thompson's arrest warrant to attack the credibi lity of Campbell's expert witness.an undue tendency to suggest a d ecision on an improper basis, n amely fear he would

reoffend and harm another child. See Wilson , 345 S.C. at 7, 545 S.E.2d at 830 (citing

Alexander , 303 S.C. at 382, 401 S.E.2d at 149) (stating evidence is undu ly prejudicial if it suggests a decision on an emotional basis, ra ther than a factual one). Additionally, we find the error was not harmless because the ca se against Campbell

amounted to a "battle of the experts," in which Dr. Gomez opine d Campbell presented an imminent danger to the community, and Dr. Gehle op ined Campbell was unlikely to reoffend. As such, we find the improper denigr ation of Dr. Gehle's credibility was reasonably likely to have affected the outcome of the trial. Cf. Tappeiner

, 416 S.C. at 253–54, 785 S.E.2d at 478–79 (finding the State's improper vouching for the victim's credibility and its emotional appeal that the defendant was a bad actor who could not be trusted to watch the jurors' own f amily members was not harmless error because the case was "entirely dependent on a credibility determination between the prosecution's witnesses and the defen se's witness," and therefore, it was "likely the emotional plea, particularly in c onjunction with the solicitor's improper vouching for Victim's credibility, swayed the jurors' view of the

facts and resolution of the contra dictions in the witnesses' te stimonies").

IV. Conclusion

The decision of the court of appeals upholding Campbell's SVP s tatus and his involuntary commitment is reversed and remanded for a new commi tment proceeding.

REVERSED AND REMANDED.

KITTREDGE, HEARN, FEW a nd JAMES, JJ., concur.