In the Matter of the Care and Treatment of Shawn Torlif Daily

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In the Matter of the Care and Treatment of Shawn Torlif
Daily, Appellant.

Appellate Case No. 2022-000371

Appeal From Spartanburg County
R. Keith Kelly, Circuit Court Judge

Opinion No. 6061
Submitted May 1, 2024 – Filed June 12, 2024

REVERSED AND REMANDED

Appellate Defender Lara Mary Caudy, 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: Shawn Torlif Daily appeals his involuntary commitment under
the Sexually Violent Predator Act (the SVP Act),1 arguing the circuit court erred in
admitting evidence of the results of a penile plethysmograph (PPG) test he
underwent because the evidence was unreliable. We reverse and remand.

FACTS

Daily pled guilty to three counts of lewd act on a minor. Prior to his release, the
State petitioned the circuit court to order Daily's evaluation under the SVP Act.

1
S.C. Code Ann. §§ 44-48-10 to 44-48-180 (Supp. 2023).
After a probable cause hearing, the court ordered evaluation and appointed Dr.
Christopher Gillen, a psychologist with the Department of Mental Health, to
evaluate Daily. Dr. Gillen issued an evaluation, finding Daily did not meet the
criteria for commitment under the SVP Act. The State sought the independent
evaluation of Dr. Emily Gottfried of the Medical University of South Carolina
(MUSC). Dr. Gottfried's evaluation included PPG testing. After Dr. Gottfried's
evaluation, Daily filed a pretrial motion to suppress testimony related to the PPG
testing and results. The State filed a memorandum in opposition to the motion to
suppress.

At a pretrial hearing, Daily argued the PPG test was not scientifically reliable, it
was useful for treatment but not evaluation, Daily faced contempt if he did not
submit to the test, and it was not relevant. Daily further asserted the probative
value of the evidence was substantially outweighed by its prejudicial effect. The
State argued the test was reliable, the results were only one factor Dr. Gottfried
relied on, and the prejudicial effect did not outweigh the probative value. The
State proffered Dr. Gottfried's testimony.

Dr. Gottfried testified the PPG has been widely used since 1950, not only
regarding sexual offending but also to address erectile dysfunction and general
sexual wellbeing. She explained she and everyone involved in the PPG test at the
Sexual Behaviors Clinic and Lab (SBCL) at MUSC were clinically certified to
perform and interpret the test, and the SBCL had been certified by the
manufacturer of the PPG, Limestone Technologies. In addition, she testified all
equipment used was calibrated three times before each test and measures were
taken to make sure each administration of the test was valid.

Dr. Gottfried also testified the Association for the Treatment of Sexual Abusers
(ATSA) published guidelines for assessment and treatment purposes, including the
use of the PPG. She opined the ATSA concluded the PPG was standardized and
empirically supported, but it should not be used alone in concluding risk or
diagnosis and she noted she used it in conjunction with other evaluation methods.
She explained she was part of an international standardization research group for
the PPG. In addition, she had "about 36 peer-reviewed publications or book
chapters in peer-reviewed scholarly books" regarding the PPG. She had performed
more than fifty pre-commitment evaluations using PPGs and also contracted with
U.S. Federal Probation and Pretrial Services system for evaluations. Dr. Gottfried
next testified about a diagnostic manual, which recognized the use of the PPG, and
a clinical science handbook that found the PPG important in the evaluation and
treatment of those being considered for civil commitment as a sexual predator.
She explained a methodology of using children's voices during the stimuli tests that
could be tailored to an examinee's offending pattern, Real Child Voices, and
opined that SVP programs in Minnesota, California, Illinois, New York, and
possibly Missouri used the methodology for treatment programs.2 She testified
Real Child Voices had been peer reviewed. Dr. Gottfried also used the Marshall
stimulus test, which she described as "developed . . . a long time ago."3 Dr.
Gottfried opined the PPG was generally accepted in the mental health and medical
field. However, she admitted the PPG had standardization issues and it did not
always have expected results. After taking the matter under advisement, the court
denied the motion to suppress.

At trial, Dr. Gottfried was qualified by stipulation as an expert in forensic
psychiatry in sexual behaviors. Dr. Gottfried testified she was certified in 2018 to
administer the PPG by a psychologist at Limestone Technologies. She
acknowledged "the PPG has been criticized for some standardization issues." In
addition, "some offenders don't show expected arousal pattern." She explained a
sexual offender against children may not show sexual arousal under the PPG
because "not everybody who offends against children offends because they are
sexual[ly] attracted or aroused by them . . . ."

Dr. Gottfried testified Daily's results from the PPG testing "were right in line with
his offenses." According to Dr. Gottfried, Daily "had a clinically significant sexual
arousal to trials featuring sexual activity with a female infant, a preschool-aged
female child, and a grammar school or elementary school-aged child. And those
were really consistent with his offense behaviors." She stated Daily did not show
clinically significant arousal to consenting adults. Dr. Gottfried diagnosed Daily
with pedophilic disorder, exclusive type, sexually aroused to female prepubescent
children. She opined the disorder was treatable but difficult to treat, and she
testified Daily had not had any treatment.4 Dr. Gottfried rated Daily in the

2
Dr. Gottfried stated the jurisdictions she mentioned used the PPG "for
precommitment, but when I discuss the programs, they only do treatment there."
3
The Marshall test "features a monotone male voice . . . reading sexual scenarios."
The Real Child Voices is "slide plus audio," using photos of like victims, such as a
female child in a bathing suit used for an examinee whose victim was a similar age
and gender.
4
Dr. Gottfried noted Daily had not received treatment even though it was offered
to him while he was incarcerated. She also noted Daily was "a person who maybe
genuinely wants . . . not to reoffend, but has no idea how to manage that arousal
that he has. . . . He clearly needs treatment for it."
average-risk range for reoffending (approximately five percent) based on the
actuarial assessments given, but found he had a high risk to reoffend based on her
overall review. She opined Daily met the criteria to be found a sexually violent
predator under the SVP Act and that he had "a mental abnormality that ma[de] him
likely to reoffend if not committed and [given] treatment."

Dr. Gillen was qualified without objection as an expert in clinical forensic
psychology and testified he diagnosed Daily with pedophilic disorder. His
actuarial assessments also measured Daily in the average risk to reoffend of less
than five percent. He testified there is no cure for pedophilic disorder but
explained it could be treated by teaching strategies to manage deviant arousal to
prevent reoffending. Dr. Gillen testified that once Daily was released, he would
have approximately three years remaining on probation, which would include
intensive supervision, sex offender treatment, and GPS monitoring. Dr. Gillen
opined Daily was not likely to reoffend. The jury found Daily was a sexually
violent predator under the SVP Act, and the circuit court ordered his commitment.
This appeal followed.

STANDARD OF REVIEW

In Matter of Bilton, this court described the standard of review for evidentiary
rulings in an SVP case:

The standard of review for evidentiary rulings is very
deferential. "The admission or exclusion of evidence is a
matter within the trial court's sound discretion, and an
appellate court may only disturb a ruling admitting or
excluding evidence upon a showing of a 'manifest abuse
of discretion accompanied by probable prejudice.'" State
v. Commander, 396 S.C. 254, 262–63, 721 S.E.2d 413,
417 (2011) (quoting State v. Douglas, 369 S.C. 424, 429,
632 S.E.2d 845, 848 (2006)). "An abuse of discretion
occurs when the conclusions of the trial court either lack
evidentiary support or are controlled by an error of law."
State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265
(2006).

432 S.C. 157, 161–62, 851 S.E.2d 442, 444 (Ct. App. 2020). In addition, "[a] trial
[court's] decision regarding the comparative probative value and prejudicial effect
of evidence should be reversed only in exceptional circumstances." State v.
Collins, 409 S.C. 524, 534, 763 S.E.2d 22, 28 (2014) (quoting State v. Adams, 354
S.C. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003)).

LAW/ANALYSIS

Daily argues the circuit court erred in admitting evidence of the PPG test because it
was unreliable and the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice. We agree.

"If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise." Rule 702, SCRE. "To admit expert
testimony under Rule 702, the proponent . . . must demonstrate, and the trial court
must find, the existence of three elements: 'the evidence will assist the trier of fact,
the expert witness is qualified, and the underlying science is reliable.'" State v.
Wallace, 440 S.C. 537, 544, 892 S.E.2d 310, 313 (2023) (quoting State v. Council,
335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999)). A trial court considers these factors
in determining the admissibility of scientific evidence: "(1) the publications and
peer review of the technique; (2) prior application of the method to the type of
evidence involved in the case; (3) the quality control procedures used to ensure
reliability; and (4) the consistency of the method with recognized scientific laws
and procedures." Council, 335 S.C. at 19, 515 S.E.2d at 517.

We recognize there may be contrary authority finding the PPG is reliable and
probative. See In re Det. of Herrick, 393 P.3d 879, 885 (Wash. Ct. App. 2017)
(affirming the use of the PPG as a diagnostic test in a commitment proceeding,
stating the Washington Supreme Court had accepted the PPG as used for diagnosis
and the Washington legislature had "expressly authorized the use of PPG testing as
part of the evaluative process"); In re Commitment of Sandry, 857 N.E.2d 295, 309
(Ill. Ct. App. 2006) (stating "a significant subset of experts considers PPG testing a
useful tool for treating and evaluating sex offenders").

However, we agree with this court's opinion in Matter of Bilton, which noted "[t]he
test is controversial and has been criticized for a lack of standardization and for
being subject to manipulation." 432 S.C. 157, 162, 851 S.E.2d 442, 444 (Ct. App.
2020). Furthermore, our court in Bilton stated, "[c]ourts have noted that PPGs are
routinely used as a tool in treatment programs[, and] . . . with limited exceptions[, .
. .] courts have 'uniformly' declared that PPG test results are 'inadmissible as
evidence because there are no accepted standards for this test in the scientific
community.'" Id. at 162–63, 851 S.E.2d at 444 (quoting Doe ex rel. Rudy-Glanzer
v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000)); see also Berthiaume v. Caron,
142 F.3d 12, 17 (1st Cir. 1998) ("[The PPG] is widely used in the scientific
community for the treatment of pedophilia; its use for screening is debatable and
the scientific community is not of one mind . . . ."); United States v. Powers, 59
F.3d 1460, 1471 (4th Cir. 1995) (affirming the district court's ruling that the PPG
test fails the "scientific validity" prong of the test which provides the standard for
the admissibility of such scientific evidence); Leftwich v. State, 538 S.E.2d 779,
781 (Ga. Ct. App. 2000) (finding the court had already "noted that the reliability of
test results obtained on the penile plethysmograph had not been scientifically
established" and the proponent of the evidence also failed to demonstrate the
evidence was outside of the knowledge of the average juror); State v. Spencer, 459
S.E.2d 812, 815 (N.C. Ct. App. 1995) (affirming the exclusion of the results of a
PPG test because "the evidence before [the trial court] by no means established the
reliability of the plethysmograph; there is a substantial difference of opinion within
the scientific community regarding the plethysmograph's reliability to measure
sexual deviancy"); see generally Renee Sorrentino, M.D., Sex Offenders and the
Law, 39 Vt. B.J. 26, 26 (2013) ("Studies measuring sexual arousal by penile
plethysmography (circumferential measurement of penile tumescence as a measure
of sexual arousal) define improvement as a reduction in deviant sexual arousal. . . .
However, the use of penile plethysmography is not widely accepted by the
scientific community because of the lack of reliability between the different types
and models of plethysmography in addition to debate over the validity and
appropriate use of penile plethysmography.") (footnotes omitted); Major
Christopher Mathews, et al., Debunking Penile Plethysmograph Evidence, 28 NO.
2 The Reporter 11, 11–12 (2001) (stating "the use of the penile plethysmograph as
a predictive or forensic tool fails to meet the relevant legal standards for
admissibility and has been repeatedly rejected by the scientific community); id. at
13 (stating due to "the serious issues undermining [the] reliability" of the PPG, "it
is not surprising that state courts have repeatedly excluded penile plethysmograph
evidence. Federal courts have likewise rejected the test.") (footnote omitted);
Myers, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev.
1, 134–35 (1989) (stating that a problem with the reliability of PPG testing is that
penile response is subject to voluntary control, and the test should not be used to
determine whether or not an individual has engaged in deviant behavior). Because
we find the PPG is not reliable, as required by Rule 702, we find the trial court
abused its discretion in admitting the PPG test results.

Having found error in the admission of the PPG, we must next consider whether it
was prejudicial or constituted harmless error. "A fundamental principle of
appellate procedure is that a challenged decision must be both erroneous and
prejudicial to warrant reversal." In re Gonzalez, 409 S.C. 621, 636, 763 S.E.2d
210, 217 (2014). "A harmless error, by definition, is an error that is not
prejudicial." State v. Charping, 313 S.C. 147, 159, 437 S.E.2d 88, 95 (1993)
(Goolsby, A.J., concurring), overruled on other grounds by Franklin v. Catoe, 346
S.C. 563, 552 S.E.2d 718 (2001). "Whether an error is harmless depends on the
circumstances of the particular case. 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." In re Care & Treatment of Harvey, 355
S.C. 53, 62–63, 584 S.E.2d 893, 897 (2003) (quoting State v. Mitchell, 286 S.C.
572, 573, 336 S.E.2d 150, 151 (1985)).

Here, Dr. Gottfried testified she met with Daily twice and her technicians met with
him on two other occasions; she evaluated his criminal history, his incarceration,
and other records; and she reviewed Dr. Gillen's evaluation. She performed three
categories of assessments: self-reporting; the PPG; and her own clinician scores.
According to Dr. Gottfried, Daily's self-reporting was defensive, exhibiting "a
really high level of denial related to past sexual interest or urges and things that
might be considered deviant." He also "placed responsibility for his behavior on
having had too much alcohol or drugs [Ambien]." Dr. Gottfried testified Daily
attempted to minimize his behavior "by indicating that he didn't plan [his assaults],
that he slipped one time, made a mistake, and he didn't know how the sexual things
actually ended up happening."

However, Dr. Gottfried was also the State's sole witness and a significant portion
of her testimony centered on the PPG test. She emphasized to the jury that the
PPG was an "objective test of male sexual arousal" and claimed it is "really, really
important to objectively know what this person is aroused by . . . [a]nd so the PPG
is going to give you data about today on . . . what they were aroused by in the
laboratory." She also told the jury that "the PPG has the greatest validity and
reliability . . . ."

To determine if the erroneous admission of the PPG qualifies as harmless error
depends on "whether beyond a reasonable doubt the trial error did not contribute to
the guilty verdict." State v. Tapp, 398 S.C. 376, 389–90, 728 S.E.2d 468, 475
(2012). Although Dr. Gottfried testified she did not rely exclusively on the PPG in
making her evaluation, we cannot fairly say that beyond a reasonable doubt, the
PPG test results did not contribute to the jury's verdict. See Bilton, 432 S.C. at 168,
851 S.E.2d at 447 ("Many cases recount the special solicitude juries afford
testimony that has the appearance of scientific evidence."); id. (finding prejudicial
error in the admission of PPG test results).

CONCLUSION

For the foregoing reasons, the commitment order is reversed and remanded for a
new trial.

REVERSED AND REMANDED.

THOMAS, MCDONALD, and VERDIN, JJ., concur.