In re Thomas S

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April 10, 2013 South Carolina:

In re Thomas S

We granted certiorari to review an unpublished decision by the Court of Appeals which held that trial court did not err in permitting witness Shellenberg to give an opinion. In re S., Op. No. 2011-UP-121 (S.C.Ct.App. filed March 24, 2011).

We agree with petitioner and find that Shellenberg, a lay witness, was improperly allowed to offer expert opinion testimony and that this error was not harmless. We therefore reverse and remand for further proceedings.

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The sole issue before the jury was whether petitioner was likely to reoffend, and Dr. Neller, the sole expert in the case testified he was not. The only evidence in the record of petitioner's "propensity to commit [future] acts of sexual violence" was that of witness Shellenberg, who was improperly allowed to "give her opinion" despite the fact the State explicitly called her as a non-expert.

In fact, Shellenberg herself admitted on cross-examination that she was not qualified to diagnose petitioner as an SVP. The erroneous admission of her extensive opinion testimony mandates reversal here. Compare e.g. State v. Ellis, 345 S.C. 175, 547 S.E.2d 490 (2001) (improper non-expert opinion testimony which goes to the heart of the case is not harmless).

CONCLUSION

The Court of Appeals erred in affirming the jury verdict here. We therefore reverse and remand for further proceedings.

REVERSED AND REMANDED

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