In The Court of Appeals

In the Matter of the Care and Treatment of Thomas Simmons, Appellant.

Appeal From Horry County
Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2011-UP-121
Submitted March 1, 2011 Filed March 24, 2011


Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R.J. Shupe, Senior Assistant Attorney General James G. Bogle, Jr., and Assistant Attorney General William M. Blitch, Jr., all of Columbia, for Respondent.

PER CURIAM: Thomas Simmons appeals his commitment to the South Carolina Department of Mental Health as a sexually violent predator. On appeal, Simmons contends the trial court erred in denying his motion for a directed verdict because the State failed to prove an element of the Sexually Violent Predator Act (the Act) and in allowing the opinion testimony of a non-expert into evidence. We affirm.[1]

1. The trial court did not err in denying Simmons's motion for a directed verdict.

A sexually violent predator is defined in the Act 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) (Supp. 2010). "Mental abnormality" is defined as "a mental condition affecting a person's emotional or volitional capacity that predisposes the person to commit sexually violent offenses." S.C. Code Ann. 44-48-30(3) (Supp. 2010). The phrase "likely to engage in acts of sexual violence" is defined as a "propensity to commit acts of sexual violence . . . of such a degree as to pose a menace to the health and safety of others." S.C. Code Ann. 44-48-30(9) (Supp. 2010). "When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight." State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). When reviewing a denial of a directed verdict, an appellate court views the evidence and all reasonable inferences in the light most favorable to the State. Id.

The State produced evidence that Simmons met both elements of "sexually violent predator" as defined in the Act. Simmons met the first element of the Act because he was adjudicated delinquent as a result of the commission of first-degree criminal sexual conduct with a minor after he committed sexual battery on his step-nephew. Simmons met the second element of "sexually violent predator" under the Act because the chief psychologist at the South Carolina Violent Predator Program testified Simmons suffers from a mental abnormality called sexual sadism, which he opined was a chronic condition. The State presented evidence sufficient for a jury to find Simmons was likely to "engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment," including: Simmons continued to have vivid sexual fantasies involving rape, force and sadistic behavior while committed; Simmons lapsed in his sex‑offender treatment; while committed, Simmons downloaded pornographic cartoons depicting rape and violence; Simmons accumulated thirty disciplinary infractions while committed, including fashioning a weapon and displaying signs of aggression toward other juveniles and staff members; Simmons refused to pay restitution to his victim, blamed the victim for his commitment, and believed the victim should have to "pay for me"; and Simmons stated he "was always listening to the wrong voice." Thus, viewing the evidence in the light most favorable to the State, the evidence supports submitting the case to the jury.

2. The trial court did not err in allowing the social worker to testify about her personal observations of Simmons.

Lay witnesses are permitted to offer "testimony in the form of opinions or inferences" if the opinions or inferences "(a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness'[s] testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience, or training." Rule 701, SCRE. "Conclusions or opinions of laymen should be rejected only when they are superfluous in the sense that they will be of no value to the jury." State v. Williams, 321 S.C. 455, 463, S.E.2d 49, 54 (1996).

The State presented evidence the social worker's testimony was based on her perception. The question that was objected to, which she answered, asked whether she had personally observed Simmons display certain features. Her answer was helpful to the determination of the fact in issue of whether Simmons was likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. Lastly, her personal observations did not require special knowledge, skill, experience, or training.

Accordingly, the trial court did not err in allowing the social worker to testify.


FEW, C.J., THOMAS and KONDUROS, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.