In the Matter of the Care and Treatment of Robert Powell

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In the Matter of the Care and Treatment of Robert
Powell, Appellant.

Appellate Case No. 2018-000426

Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge

Unpublished Opinion No. 2020-UP-203
Submitted June 1, 2020 – Filed July 1, 2020

AFFIRMED

Appellate Defender Joanna Katherine Delany, of
Columbia, for Appellant.

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

PER CURIAM: Robert Powell appeals his civil commitment to the South
Carolina Department of Mental Health pursuant to the Sexually Violent Predator
Act.1 On appeal, Powell argues the trial court erred in admitting evidence of other
bad acts that were nonsexual in nature and in holding the prejudicial effect of his
prior convictions for nonsexual offenses did not substantially outweigh its

1
S.C. Code § 44-48-10 to -170 (2018).
probative value. We find the trial court did not err in admitting testimony about
Powell's prior nonsexual charges and convictions because the prejudicial effect did
not substantially outweigh the testimony's probative value. We also find the
testimony did not confuse the issues or appeal for a verdict on an improper basis.
Accordingly, we affirm pursuant to Rule 220(b), SCACR, and the following
authorities: In re Manigo, 389 S.C. 96, 106, 697 S.E.2d 629, 633 (Ct. App. 2010)
("The admission of evidence is within the sound discretion of the trial court."); id.
("To constitute an abuse of discretion, the conclusions of the trial [court] must lack
evidentiary support or be controlled by an error of law."); Way v. State, 410 S.C.
377, 382, 764 S.E.2d 701, 704 (2014) (stating the appealing party must show error
as well as resulting prejudice in order to warrant reversal); Rule 401, SCRE
(defining relevant evidence as "evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence"); 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 . . . ."); In re Campbell, 427 S.C. 183, 193, 830 S.E.2d 14,
19 (2019) ("Evidence is unfairly prejudicial if it has an undue tendency to suggest
a decision on an improper basis, such as an emotional one." (quoting State v.
Wilson, 345 S.C. 1, 7, 545 S.E.2d 827, 830 (2001))); S.C. Code Ann. § 44-48-30(1)
(2018) (defining a sexually violent predator as an individual 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"); In re Ettel, 377 S.C. 558, 562, 660 S.E.2d 285, 287 (Ct. App. 2008)
("Experts are allowed to have 'reasonable access to the person for the purpose of
the examination, as well as access to all relevant medical, psychological, criminal
offense, and disciplinary records and reports.'" (quoting S.C. Code Ann.
§ 44-48-90 (2018))); id. ("These offenses can include both convictions and
offenses not resulting in convictions as long as they are relevant to the
determination of whether a person is a sexually violent predator."); id. ("Because a
'person's dangerous propensities are the focus of the [Sexually Violent Predator]
Act,' consideration of '[p]ast criminal history is therefore directly relevant to
establishing [section] 44-48-30(1)(a),' which in turns bears directly on whether one
suffers from a mental abnormality under section 44-48-30(1)(b)." (second
alteration in original) (quoting In re Corley, 353 S.C. 202, 206-07, 577 S.E.2d 451,
453-54 (2003))); id. at 562-63, 660 S.E.2d at 288 (finding the expert's testimony
regarding the appellant's prior sexual offenses and murder conviction were relevant
because the expert "relied on them in evaluating [the appellant's] need for and
likelihood of success in treatment as well as his ability to control his behavior in
the future" and the danger of unfair prejudice did not substantially outweigh its
probative value). Additionally, we find Powell's arguments that the State failed to
prove the prior nonsexual offenses by clear and convincing evidence and the
evidence was improper character evidence are not preserved. See State v. Dunbar,
356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) (stating an issue must be raised
to and ruled upon by the trial court in order to be preserved for appellate review).

AFFIRMED.2

WILLIAMS, KONDUROS, and HILL, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.