Today’s (12/17/2014) Opinions from the South Carolina Court of Appeals

scctappealsThe South Carolina Court of Appeals released two opinions today:  State v. Smith and Furr v. Horry County Zoning Board.

In State v. Smith, the court affirmed the lower court’s conviction of Smith for “…criminal sexual conduct with a minor….”  Smith appealed his conviction, arguing that the trial court erred when:

“1) admitting testimony of the forensic interviewer regarding Smith’s identify;

2)  allowing the State’s expert to testify regarding the relationship between the length of delay in [the]disclosure of sexual abuse and the credibility of the disclosure; and

3)  permitting the victim to refresh his recollection by reading his testimony from Smith’s previous trial.”

Smith was accused and convicted of sexually molesting his children when the children were between the ages of six and eight.  Thus the abuse took place between 1999 through 2000.  The assaults were not reported to law enforcement until 2003 after the children left their mother’s home to go live with their aunt.

Noting that the appellate court “…sits to review errors of law only and is bound by the trial court’s findings unless they are clearly erroneous….” the majority of the Appeals Court affirmed Smith’s conviction.  The Court examined South Carolina Rule of Evidence 801(d)(1), concluding that it governed “…the testimony of a witness regarding a victim’s out-of-court statement….”  The court then explained that a statement is not hearsay if “…[t]he declarant testifies at trial…and is subject to cross-examination concerning the statement and the statement is…(D) consistent with the declarant’s testimony in a criminal sexual conduct case or attempted criminal sexual conduct case where the declarant is the alleged victim and the statement is limited to the time and place of the incident.”

The court acknowledged that the State committed an error when asking the expert witness whether the delay in disclosure eroded the credibility of the victim.  The Court concluded that this did not constitute reversible error.

Lastly the court found that no “abuse of discretion by the trial court occurred in permitting the victim to refresh his recollection by reviewing the transcript from the previous file.”

A dissent was filed.

Furr v. Horry County Zoning Board of Appeals involved the Zoning Board’s appeal from the circuit court’s decision.

Furred lived in a subdivision known as Wild Horse.  Mercy Care Hospice proposed to build a fourteen bed hospice in an area adjacent to the Wild Horse suburb.  The facility would require the use of the subdivision’s road.  Horry County’s zoning ordinances were silent regarding the location of  hospices.  After reviewing the matter, the Horry County Zoning Authority determined that the zoning ordinances would permit the erection of a hospice facility in this location.

Furr objected, insisting that the S.C. Code Ann. Section 44-7-130(12) meant that the hospice was actually a hospital that could not be located adjacent to a subdivision. Furr’s appeal to the Zoning Board resulted in the Board’s upholding the Zoning Administrator’s decision.

Furr then appealed to the circuit court.  The court then reversed the Zoning Board’s decision, concluding that the Board’s “…interpretation of the zoning ordinances was incorrect as a matter of law.” The court agreed that a hospice was like a hospital.  The Zoning Board then appealed the circuit court’s decision to the appellate court.

According to the South Carolina Supreme Court, the standard of review view in zoning appeals is “…that a court will not substitute its judgment for the judgment of the board. The court may not feel that the decision of the board was the best that could have been rendered under the circumstances.  It may thoroughly disagree with the reasoning by which the board reached its decision.  It may feel that the decision of the board was a substandard piece of logic and thinking.  None the less, the court will not set aside the board’s view of the matter  just to inject its own ideas into the picture of things.” The court further elaborated that “…[a] zoning board’s decision will be overturned if it is ‘arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board  has abused its discretion.”  Instead it is the zoning boards rather than the courts who are responsible for the planning and development of local communities.

The Court of Appeals then reversed the circuit court, holding that “…[the] Horry County ordinances do not specifically permit or prohibit a hospice in a CFA zone.  Therefore, the parties asked the Board to determined whether the MCH facility was more comparable to a nursing home or group housing, permitted uses, or a hospital, a prohibited use.  That required a faculty inquiry into the type of care, staffing, and activity that would be involved at the MCH facility along with consideration of the relevant ordinances.  Based on that information and analysis, the Board determined that the MCH facility fell within the permitted uses and approved construction in the CFA Zone.”

About Lisa Smith-Butler

Associate Professor of Law Charleston School of Law 385 Meeting St., Suite 322B Charleston, S.C. 29403 843.377.2144
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