                     THE STATE OF SOUTH CAROLINA 

                          In The Supreme Court 


            The State, Respondent,


            v.

            Christopher Chad Wessinger, Appellant.

            Appellate Case No. 2012-213064



                          Appeal from Cherokee County
                      J. Mark Hayes, II, Circuit Court Judge


                              Opinion No. 27404 

                     Heard May 21, 2014 – Filed July 2, 2014 



                                   AFFIRMED


            William G. Rhoden, of Gaffney, for Appellant.

            Attorney General Alan McCrory Wilson and Assistant
            Attorney General John Benjamin Aplin, both of
            Columbia, for Respondent.


JUSTICE PLEICONES: Appellant contends the trial court erred in denying his
request for a full evidentiary hearing before the circuit court determined whether
appellant's indecent exposure pleas should be classified as sexually violent
offenses for purposes of the Sexually Violent Predator Act (the SVP Act). S.C.
Code Ann. §§ 44-48-10 et seq. (Supp. 2013). Under the facts of this case, we find
no error in the circuit court's denial of appellant's request and therefore affirm.
                                      FACTS


Appellant pled guilty to two counts of indecent exposure in violation of S.C. Code
Ann. § 16-15-130 (Supp. 2013) and was sentenced to two consecutive three-year
terms, with credit for 253 days already served. At the plea hearing, the solicitor
stated that appellant had repeatedly exposed himself to the two female victims,
ages 13 and 15, made numerous phone calls to the victims asking them to "do
things of a sexual nature," and committed other acts of a sexual nature in their
presence. When asked if he agreed with the solicitor's recitation of the facts,
appellant, who had been sworn, acknowledged that he had exposed himself "to
both victims one time" and denied the rest of the solicitor's recitation. Appellant
then confirmed he was pleading guilty to one count of indecent exposure to each
victim and that his answers were truthful and honest. Appellant also
acknowledged that he had a 1994 conviction for lewd act on a minor and that he
was on the sex offender registry as a result of that conviction.

Following appellant's affirmations, one of the victims and the girls' parents gave
unsworn statements1 which described numerous criminal sexual offenses
committed by appellant against the girls. The solicitor then asked the judge to
exercise his discretion and deem appellant's indecent exposure pleas "sexually
violent" offenses pursuant to § 44-48-30(2)(o). This statute permits a judge to
designate any offense as sexually violent for purposes of the SVP Act if he "makes
a specific finding on the record that based on the circumstances of the case . . . ."

Appellant's counsel contended that the only circumstance of this case which could
be considered in making the sexually violent offense decision was that appellant
had, on one occasion, exposed himself to each victim. He argued that before
making a finding under 2(o), the court must hold a "full evidentiary hearing"
including testimony and an opportunity to cross-examine witnesses. He pointed
out that the State was relying on the unsworn statements of the victims. In
addition, the attorney noted that appellant's status as a registered sex offender was
the result of an old conviction.2 Appellant, still under oath, admitted his wrongful

1
  One victim spoke directly to the court while the father of the other read his
daughter's statement. This father also spoke on behalf of himself and his wife and
the other victim's mother made a statement to the court.
2
  The predicate conviction was in 1994: appellant was pleading guilty in 2012 to
offenses occurring in 2009-2010.
conduct and apologized, and pointed out he had been "clean" for almost twenty
years, and stated, "I'd just like to take [sic] and have some help, be able to get some
counseling from somewhere . . . ." He subsequently repeated his request for "some
help."

Appellant's attorney reiterated his position that an evidentiary hearing was a
necessary prerequisite for the determination whether appellant's offenses should be
considered sexually violent under (2)(o). The judge then made this ruling:

             I agree with both the State and the defense. I think that if I
             were going to make factual determinations based upon what the
             victims have -- or what's said in court, I think the defendant
             would have a Constitutional Right to cross-examination.
             However, for purposes of sexual violent predator evaluation, I
             believe that the defendant's statements alone and also his
             history puts him into that category where somebody needs to
             take a look at it. He, himself, is asking me to give him help for
             his problem, and that's part of what the civil commitment
             process would do. It would allow professionals to evaluate him
             to do what type of civil treatment he would need. He may not
             qualify for that program, but, you know, when they go through
             that, they have multi-step processes they go through. They
             have the solicitors committee. They have a prosecutors
             committee. They have different people take a look at it. It may
             be that they believe that he does not fall within that definition,
             he does not need to be evaluated. They may feel that he does,
             but I have indicated on the sentencing sheet my desire that he
             be evaluated for the sexually violent predator program and let
             those people make that determination based on these charges.

Appellant's counsel asked as a matter of clarification: "Is the court making a
specific finding under [§ 44-48-30(2)(o)] concerning this particular act as being a
sexually violent offense?" The trial judge responded:

             Yes, based upon the information that's been presented to the
             court. This country [sic] probably [sic] does not even consider
             the actual statements that have been made by the victim. I
             believe that it's based on the allegations that he has admitted to;
             his own statements to me that he needs that help; his criminal
             history; the fact that he's already on the sex offender registry,
             these charges would place him on the sex offender registry. I
             think the State has met that burden;3 that that's enough for me to
             make that finding for purposes for the evaluation process for
             the SVP statute.

This appeal followed.

                                       ISSUE

             Did the circuit court judge err in denying appellant's request for
             a full evidentiary hearing before determining whether
             appellant's offense should be classified as sexually violent for
             purposes of the SVP Act?

                                    ANALYSIS

Section 44-48-30(2) of the SVP Act lists numerous offenses which are designated
"sexually violent offenses." In subsection (2)(o), the statute contains a catch-all
provision which allows the judge to designate a crime not otherwise named in the
statute as sexually violent "based on the circumstances of the case." Designation
of an offense as sexually violent triggers the operation of the SVP Act. This Act
requires that inmates convicted of sexually violent offenses be evaluated before
expiration of their sentences, and if they are found to meet the SVP Act's criteria,
permits the State to seek the inmate's civil commitment to the Department of
Mental Health for an indefinite period of time after service of their criminal
sentences.

Appellant argues that we should require a full evidentiary hearing whenever an
offense is sought to be classified as "sexually violent" under 2(o). We hold that the
scope and necessity of a separate evidentiary hearing is to be determined on a case-
by-case basis. Here, the judge stated his decision to classify appellant's offenses as
sexually violent was based on the circumstances of the case, that is, appellant's

3
  It is unclear why the trial judge made this reference to the State's burden. As we
read the statute, there is no burden of proof or persuasion placed upon either party
and in fact the circuit judge placed no burden on the State. Indeed, the statute vests
the trial/plea judge with the discretion to make a finding that an offense should be
classified as sexually violent, even in the absence of a request by the State.
status as a registered sex offender, his sworn admission that he exposed himself to
the minor victims, and his requests for help, as well as his prior conviction for a
lewd act on a minor. We find no error in the procedure utilized here where the
circuit court's decision was based on the uncontested facts in the record, all of
which were specificially acknowledged by appellant under oath. Under these
circumstances, we find no error in the circuit judge's ruling declining appellant's
request for a separate evidentiary hearing.

                                  CONCLUSION

Appellant's convictions, sentences, and the circuit court judge's decision to classify
appellant's indecent exposure offenses as sexually violent are

AFFIRMED.

TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
