                      THE STATE OF SOUTH CAROLINA
                          In The Court of Appeals

            Frederick Robert Chappell, Petitioner,

            v.

            State of South Carolina, Respondent.

            Appellate Case No. 2016-000283



                          ON WRIT OF CERTIORARI



                        Appeal from Greenville County
              Perry H. Gravely, Post-Conviction Relief Court Judge


                               Opinion No. 5704
                 Heard November 5, 2019 – Filed December 31, 2019


                                  REVERSED


            Deputy Chief Appellate Defender Wanda H. Carter, of
            Columbia, for Petitioner.

            Attorney General Alan McCrory Wilson and Assistant
            Attorney General Taylor Zane Smith, of Columbia, for
            Respondent.


THOMAS, J.: Petitioner Frederick Robert Chappell appeals the dismissal of his
post-conviction relief (PCR) application, arguing the PCR court erred in denying
his claim for ineffective assistance of counsel because his trial counsel did not
object when the State's expert witness gave improper bolstering testimony. We
reverse.

FACTS AND PROCEDURAL HISTORY
On December 14, 2010, a Greenville County Grand Jury indicted Chappell for
first-degree criminal sexual conduct with a minor and lewd act upon a child, and
the State called the case to trial in August 2012. On August 7, 2012, after a
two-day trial, the jury convicted Chappell of both counts, and the trial court
sentenced him to life in prison.1 Chappell appealed, arguing this court should
reverse his convictions because the State's expert witness gave improper vouching
testimony. However, in June 2014, this court affirmed Chappell's convictions and
held that Chappell's improper vouching claim was not preserved for review. State
v. Chappell, Op. No. 2014-UP-272 (S.C. Ct. App. filed June 30, 2014).

On November 5, 2014, Chappell filed a PCR application, claiming he received
ineffective assistance of counsel because his trial counsel failed to object when the
State's expert gave improper bolstering testimony. The PCR court held an
evidentiary hearing on December 17, 2015. In an order dated January 21, 2016,
the PCR court dismissed Chappell's application, finding the State's expert did not
make any improper vouching statements. In May 2018, this court granted a writ of
certiorari to review the PCR court's ruling.

At trial, the nine-year-old victim testified her grandmother's former boyfriend,
Chappell, had sexually abused her several times when she and her siblings visited
her grandmother's home.2 She alleged that Chappell touched her "private" and
"bottom" with his hands and mouth and sometimes forced her to touch his
"private." After the victim testified, the jury watched video of a forensic interview
in which the victim described the abuse and identified Chappell as the perpetrator.

The court then held a hearing to determine the admissibility of testimony from the
State's expert witness, Ms. Shauna Galloway-Williams. During voir dire,
Galloway-Williams testified that she had never interviewed the victim and had not
seen the video of the victim's forensic interview. Over trial counsel's objection, the



1
  The trial court sentenced Chappell to life imprisonment for the first-degree
criminal sexual conduct with a minor and a concurrent term of fifteen years'
imprisonment for the lewd act upon a child.
2
  The victim disclosed the sexual abuse in March 2010. She was seven years old.
court qualified Galloway-Williams as an expert in child sexual abuse and
treatment.

On direct examination, Galloway-Williams testified to why children who are
victims of sexual abuse might not report the abuse right away. Then, without
objection from trial counsel, the following exchange occurred between the
prosecutor and Galloway-Williams:

             Q: . . . Do children lie?

             A: Yes.

             Q: Okay. Do children lie about things like – of a sexual
             nature or abuse? And can you tell us the dynamics of
             lying and sexual abuse?

             A: Children lie. Adults lie. But children are not
             sophisticated liars. And what I mean by that is they
             really – you know, children, generally, lie to keep
             themselves out of trouble, you know. If you ask them if
             they ate the cookie and they have crumbs on their face,
             and they say, no, I didn't eat the cookie, that kind of lie.

             Children don't often lie about sexual abuse incidents.
             They don't often lie about things that are beyond their
             real scope of knowledge.

Chappell argues his trial counsel was ineffective for failing to object when
Galloway-Williams improperly bolstered the victim's credibility by testifying,
"Children don't often lie about sexual abuse incidents."

STANDARD OF REVIEW

PCR applicants have the burden of proving their allegations by a preponderance of
the evidence. Tappeiner v. State, 416 S.C. 239, 248, 785 S.E.2d 471, 476 (2016).
"[T]his [c]ourt will uphold the PCR court's factual findings if there is any evidence
of probative value in the record to support them." Thompson v. State, 423 S.C.
235, 239, 814 S.E.2d 487, 489 (2018), reh'g denied, (June 12, 2018). This court
reviews questions of law de novo and will reverse if the PCR court's decision is
controlled by an error of law. Smalls v. State, 422 S.C. 174, 180–81, 810 S.E.2d
836, 839 (2018), reh'g denied, (March 29, 2018).
INEFFECTIVE ASSISTANCE OF COUNSEL

When reviewing a claim for ineffective assistance of counsel, the "court proceeds
from the rebuttable presumption that counsel 'rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.'" Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632 (2010)
(quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). To rebut this
presumption and succeed on an ineffective assistance claim, a PCR applicant must
show (1) trial counsel's performance was deficient, and (2) trial counsel's deficient
performance prejudiced the outcome of the trial. Strickland, 466 U.S. at 687.

A. Deficient Performance

Chappell argues his trial counsel's performance was deficient because she did not
object to improper bolstering testimony. "To prove trial counsel's performance
was deficient, a[] [PCR] applicant must show '[trial] counsel's representation fell
below an objective standard of reasonableness.'" Smalls, 422 S.C. at 181, 810
S.E.2d at 840 (quoting Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233
(2005)). Thus, this court will find trial counsel's failure to object was deficient
performance only if it was unreasonable under the prevailing professional norms at
the time of trial. Strickland, 466 U.S. at 688.

1.   Improper Bolstering Testimony

The PCR court found Galloway-Williams' testimony did not contain any vouching
statements. Chappell argues Galloway-Williams improperly vouched for and
bolstered the victim's credibility by testifying, "Children don't often lie about
sexual abuse incidents." We agree with Chappell.

"The assessment of witness credibility is within the exclusive province of the jury."
State v. McKerley, 397 S.C. 461, 464, 725 S.E.2d 139, 141 (Ct. App. 2012).
Therefore, "even though experts are permitted to give an opinion, they may not
offer an opinion regarding the credibility of others." State v. Kromah, 401 S.C.
340, 358, 737 S.E.2d 490, 499 (2013). Moreover, a witness "may not . . . give
testimony that improperly bolsters the credibility of the victim." Briggs v. State,
421 S.C. 316, 323, 806 S.E.2d 713, 717 (2017).

Improper bolstering is "testimony that indicates the witness believes the victim, but
does not serve some other valid purpose." Id. at 325, 806 S.E.2d at 718. Improper
bolstering also occurs when a witness testifies for the purpose of informing the jury
that the witness believes the victim, or when there is no other way to interpret the
testimony other than to mean the witness believes the victim is telling the truth. Id.
at 324, 806 S.E.2d at 717; State v. Jennings, 394 S.C. 473, 480, 716 S.E.2d 91, 94
(2011); McKerley, 397 S.C. at 465, 725 S.E.2d at 142. However, an expert's
testimony is not improper bolstering "when the expert witness gives no indication
about the victim's veracity . . . ." State v. Perry, 420 S.C. 643, 663, 803 S.E.2d
899, 910 (Ct. App. 2017), cert. granted, (April 19, 2018).

In support of his ineffective assistance claim, Chappell cites several improper
bolstering cases involving a witness who interviewed or treated the victim before
trial. See State v. Chavis, 412 S.C. 101, 108, 771 S.E.2d 336, 340 (2015) (finding
a forensic interviewer improperly bolstered the victim's credibility when she
testified that she recommended the defendant not be allowed around the victim);
Kromah, 401 S.C. at 359, 737 S.E.2d at 500 (stating a forensic interviewer's
testimony her interview with the victim led to a "compelling finding" of abuse was
improper bolstering because it was equivalent to stating the victim was telling the
truth); Jennings, 394 S.C. at 480, 716 S.E.2d at 94 (finding a forensic interviewer
improperly bolstered the victim's credibility by noting in her report that the victims
"provide[d] a compelling disclosure of abuse . . ."); Smith, 386 S.C. at 564, 568,
689 S.E.2d at 631, 633 (stating a forensic interviewer improperly bolstered the
victim's credibility by testifying that the victim was believable and had no reason
to lie); State v. Dawkins, 297 S.C. 386, 393–94, 377 S.E.2d 298, 302 (1989)
(stating the victim's treating psychiatrist improperly bolstered the victim's
credibility by testifying that the victim's symptoms were genuine); State v.
Dempsey, 340 S.C. 565, 569–71, 532 S.E.2d 306, 308–09 (Ct. App. 2000) (finding
the victim's counselor improperly vouched for the victim's credibility by testifying
that ninety-five to ninety-nine percent of allegations of child sexual abuse are true).
Although we find these cases informative, we note that Galloway-Williams was an
independent expert who had no contact with the victim before trial.

This court first considered whether an independent expert's testimony was
improper bolstering in State v. Brown, 411 S.C. 332, 768 S.E.2d 246 (Ct. App.
2015), abrogated on other grounds by State v. Jones, 423 S.C. 631, 817 S.E.2d 268
(2018). There, the independent expert testified regarding the general behavioral
characteristics of child sexual abuse victims. Id. at 345, 768 S.E.2d at 253. The
court held there was no improper bolstering testimony because the independent
expert "(1) [did] not testify[] as a forensic interviewer, (2) never interviewed the
victims, (3) did not prepare a report for her testimony, (4) did not express an
opinion or belief regarding the credibility of child sex[ual] abuse victims'
allegations, and (5) did not express an opinion regarding the credibility of the
minor victims in th[e] case." Id. at 345, 768 S.E.2d at 252–53.
Later, in State v. Anderson, the supreme court warned that the State "runs the risk
that the expert will vouch for the alleged victim's credibility" when it calls an
expert who interviewed or treated the victim before trial. 413 S.C. 212, 218–19,
776 S.E.2d 76, 79 (2015). The court advised, "[t]he better practice[] . . . is . . . to
call an independent expert." Id. at 218, 776 S.E.2d at 79.

Since Brown and Anderson, our supreme court has considered whether the
testimony of an independent expert was improper bolstering and held that an
independent expert does not improperly bolster the victim's credibility by testifying
to only general behavioral characteristics of child sexual abuse victims. See State
v. Cartwright, 425 S.C. 81, 96–97, 819 S.E.2d 756, 764 (2018) (finding the
independent expert's testimony was not improper bolstering because she testified in
general terms and "never interviewed the victims and never stated she believed the
victims were telling the truth"); Jones, 423 S.C. at 637 n.2, 817 S.E.2d at 271 n.2
(finding the independent expert's testimony was not improper bolstering because
she gave only "generalized testimony" and did not "evaluate or interview the
victims").

As an initial matter, we disagree with the State's claim that Galloway-Williams'
testimony was not improper bolstering simply because she was an independent
expert. Instead, the testimony of an independent expert, like the testimony of any
witness, is improper bolstering if (1) the witness directly states an opinion about
the victim's credibility, (2) the sole purpose of the testimony is to convey the
witness's opinion about the victim's credibility, or (3) there is no way to interpret
the testimony other than to mean the witness believes the victim is telling the truth.
Briggs, 421 S.C. at 325, 806 S.E.2d at 718; Jennings, 394 S.C. at 480, 716 S.E.2d
at 94; McKerley, 397 S.C. at 465, 725 S.E.2d at 142.

The State also argues Galloway-Williams' testimony was not improper bolstering
because she did not indicate that the victim was telling the truth and gave only
general testimony about the behavior of child sexual abuse victims. We disagree.

We note that much of Galloway-Williams' testimony was proper general
behavioral testimony necessary to explain the often unexpected behavior of child
sexual abuse victims. See, e.g., Jones, 423 S.C. at 636, 817 S.E.2d at 271 ("[T]he
law in South Carolina is settled: behavioral characteristics of sex[ual] abuse
victims is an area of specialized knowledge where expert testimony may be
utilized."). We find, however, that Galloway-Williams improperly commented on
the victim's credibility when she testified, "Children don't often lie about sexual
abuse incidents," because a comment on the credibility of a class of persons to
which the victim belongs is a comment on the credibility of the victim. See
Wiseman v. State, 394 S.W.3d 582, 586–87 (Tex. App. 2012) ("An expert who
testifies that a class of persons to which the victim belongs is truthful is essentially
telling the jury that they can believe the victim in the instant case as well." (quoting
Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993) (en banc))); id. at 586
("[It] is settled that an expert cannot give an opinion as to whether a person—or a
class of persons to which the [victim] belongs—is truthful." ).

Galloway-Williams' statement not only had the effect of improperly bolstering the
victim's credibility; it also improperly invaded the province of the jury to
determine the only issue in this case: whether Chappell sexually abused the victim.
See McKerley, 397 S.C. at 464, 725 S.E.2d at 141 ("The assessment of witness
credibility is within the exclusive province of the jury."). Further, the State offered
no permissible purpose for this testimony, and we see none. Thus, we find
Galloway-Williams' statement cannot reasonably be interpreted to have served any
purpose other than to improperly bolster the victim's credibility. Briggs, 421 S.C.
at 325, 806 S.E.2d at 718 (stating improper bolstering testimony "indicates the
witness believes the victim, but does not serve some other valid purpose").
Accordingly, we find the PCR court erred in finding Galloway-Williams' testimony
contained no vouching statements.

The dissent would affirm Chappell's conviction because it would find that
Galloway-Williams' statement was proper testimony regarding a general
behavioral characteristic of child sexual abuse victims. But the practical result of
Galloway-Williams' statement that "Children don't often lie about sexual abuse
incidents" was to convey to the jury that the victim's allegations must be true and
to encourage the jury to supplant their own credibility determination with that of
Galloway-Williams. Both results are impermissible; thus, the statement was
improper.

2.   Law at the Time of Trial

The State alternatively argues that under the law existing at the time of trial,
Chappell's trial counsel could not have known to object to Galloway-Williams'
statement as improper bolstering. We disagree.

For an ineffective assistance claim, the PCR court must "determine whether
counsel was ineffective at the time of the alleged error." Pantovich v. State, 427
S.C. 555, 562–63, 832 S.E.2d 596, 600 (2019), reh'g denied, (September 27,
2019). Thus, the court must consider the law as it existed at the time of trial and
"not as it has evolved today . . . ." Id. at 564, 832 S.E.2d at 601. Accordingly, trial
counsel will not be found deficient for failing "to be clairvoyant or anticipate
changes in the law . . . ." Gilmore v. State, 314 S.C. 453, 457, 445 S.E.2d 454, 456
(1994), overruled on other grounds by Brightman v. State, 336 S.C. 348, 520
S.E.2d 614 (1999).

Chappell's trial was held in August 2012. At that time, our courts had not yet
considered an improper bolstering case involving an independent expert. But as
the State conceded at oral argument, in 2015, when this court decided the first
improper bolstering case involving an independent expert, the court did not
establish a new legal principle or change the existing law.3 See Brown, 411 S.C. at
332, 768 S.E.2d at 246. Instead, the Brown court applied the existing law to a new
set of facts. Accordingly, we find the law at the time of Chappell's trial indicated
an independent expert, like any other witness, may not testify whether another
witness is telling the truth. See McKerley, 397 S.C. at 464, 725 S.E.2d at 141
("[W]itnesses are generally not allowed to testify whether another witness is telling
the truth."); see also Briggs, 421 S.C. at 324, 806 S.E.2d at 717 ("[A] witness may
not give an opinion for the purpose of conveying to the jury . . . that [the witness]
believes the victim."); Jennings, 394 S.C. at 480, 716 S.E.2d at 94 ("For an expert
to comment on the veracity of a child's accusations of sexual abuse is improper.");
McKerley, 397 S.C. at 464, 725 S.E.2d at 141 ("The assessment of witness
credibility is within the exclusive province of the jury."); State v. Hill, 394 S.C.
280, 294, 715 S.E.2d 368, 376 (Ct. App. 2011), overruled on other grounds by
State v. Stukes, 416 S.C. 493, 787 S.E.2d 480 (2016) ("The law is clear that it is
improper for a witness to give testimony as to his or her opinion about the
credibility of a child victim in a sexual abuse matter."). Thus, Chappell's trial
counsel should have known to object when Galloway-Williams testified, "Children
don't often lie about sexual abuse incidents." Accordingly, we find the PCR court
erred in finding Chappell's trial counsel was not deficient for failing to object.

B.   Prejudice

Chappell argues he was prejudiced by trial counsel's failure to object to improper
bolstering testimony because the outcome of his trial hinged on the jury's
assessment of the victim's credibility. We agree.


3
 At oral argument, the State asserted, "The Brown case [wa]s not necessarily a
change in law as much as it [wa]s an application of the vouching line of cases to a
new factual situation."
In an ineffective assistance case, "trial counsel's deficient failure to object to
[improper bolstering] testimony does not remove a[] [PCR] applicant's burden to
prove prejudice." Thompson, 423 S.C. at 246, 814 S.E.2d at 492. To establish
prejudice, a PCR applicant must show "there is a reasonable probability that, but
for [trial] counsel's [deficient performance], the result of the trial would have been
different." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.

"The determination whether a bolstering error [prejudiced the outcome of a trial]
depends on whether the case turn[ed] on the credibility of the victim." Chavis, 412
S.C. at 110, 771 S.E.2d at 341. The outcome of a trial turns on the credibility of
the victim when the State presents no physical evidence or "relie[s] solely upon the
victim's testimony to establish the details of the crime . . . ." Thompson, 423 S.C.
at 248, 814 S.E.2d at 494; see also Gilchrist v. State, 350 S.C. 221, 228, 565
S.E.2d 281, 285 (2002) (finding a PCR applicant was prejudiced by improper
bolstering testimony because "believing [the bolstered witness] was the only way
the jury could convict . . . .").

Here, we find the outcome of Chappell's trial hinged on the jury's assessment of the
victim's credibility because the State presented no physical evidence, and the only
evidence against Chappell was the victim's uncorroborated testimony. See
Gilchrist, 350 S.C. at 228, 565 S.E.2d at 285 (stating the witness's credibility was
essential to the decision to convict because the witness's testimony was the only
evidence of guilt). Because the outcome hinged on the victim's credibility, we find
there is a reasonable probability that the outcome of Chappell's trial would have
been different had trial counsel objected when Galloway-Williams improperly
bolstered the victim's credibility.

The dissent states that even if Galloway-Williams' statement that "Children don't
often lie about sexual abuse incidents" was improper bolstering, it would find
Chappell failed to show the outcome of his trial would have been different had trial
counsel objected. However, our courts have found improper bolstering testimony
was prejudicial in every South Carolina case in which the State presented no
physical evidence of the defendant's guilt or relied solely on the victim's testimony
to establish the details of the crime. See Thompson, 423 S.C. at 249, 814 S.E.2d at
494 (stating the PCR applicant was prejudiced by improper bolstering because the
outcome of the trial "hinged on [the] [v]ictim's credibility, and there was otherwise
an absence of overwhelming evidence of [the applicant]'s guilt"); Briggs, 421 S.C.
at 333–34, 806 S.E.2d at 722–23 (finding improper bolstering testimony prejudiced
the PCR applicant's trial because there was no physical evidence any sexual abuse
occurred); Anderson, 413 S.C. at 219–21, 776 S.E.2d at 79–81 (finding improper
bolstering testimony constituted reversible error because the trial turned solely on
the credibility of the victim and there was no physical evidence of abuse);
Jennings, 394 S.C. at 480, 716 S.E.2d at 95 ("Because the children's credibility
was the most critical determination of this case, we find the admission of the
[forensic interviewer's] written reports was not harmless."); Smith, 386 S.C. at 569,
689 S.E.2d at 633 (finding the PCR applicant was prejudiced by improper
bolstering testimony because "the outcome of the case hinged on the [v]ictim's
credibility regarding identification of the perpetrator, and there was otherwise an
absence of overwhelming evidence of [] guilt."); Gilchrist, 350 S.C. at 228, 565
S.E.2d at 285 (finding a PCR applicant was prejudiced by improper bolstering
testimony because "believing [the bolstered witness] was the only way the jury
could convict . . ."); State v. Barrett, 299 S.C. 485, 487, 386 S.E.2d 242, 243
(1989) (finding the admission of improper bolstering testimony mandated reversal
because "the State relied solely upon [the] [v]ictim's testimony to establish the
details of the crime and the identity of the perpetrator"). We see no reason to
depart from those rulings.

CONCLUSION

For the foregoing reasons, we find evidence does not support the PCR court's
dismissal of Chappell's PCR application. We reverse and remand for a new trial.

REVERSED.

GEATHERS, J., concurs.

SHORT, J., dissenting: Respectfully, I dissent and would affirm the PCR
court. First, I find the State's independent expert's statements were not
comments on the victim's credibility but were statements regarding a general
behavioral characteristic of child sexual abuse victims; thus, there was no
bolstering. Even if the comments were bolstering, I find Chappell has failed
to establish the prejudice necessary for relief in a PCR action, which requires
a showing that the result of the trial would have been different. In this case,
although there was no physical evidence of abuse, the State produced a
forensic video interview of the victim, the victim's own testimony before the
jury, and the mother's testimony. In my view, the jury would have reached
the same conclusion with or without the expert's statements. Thus, Chappell
is unable to establish prejudice. I would affirm.
