OPINIONS

Continued From Page 23 funds or other improper use of trust funds.

We accept the agreement for discipline by consent and disbar respondent. Respondent shall enter into an agreement with the Commission on Lawyer Conduct to pay (1) $12,000 in restitution to Clients in Matter A; (2) $10,000 in restitution to Client C; (3) $133,906.55 to the Lawyers’ Fund for Client Protection; and (4) the costs incurred in the investigation and prosecution of this matter by the Office of Disciplinary Counsel and the Commission. Respondent shall also surrender his Certificate of Admission to the Practice of Law to the clerk of this court. Prior to seeking readmission, respondent must attend the Legal Ethics and Practice Program Ethics School and Trust Account School.

In re Lynn (Lawyers Weekly No. 010016-23, 8 pp.) (Per Curiam) John Nichols and Ericka Williams for the Office of Disciplinary Counsel; Cooper Lynn, pro se. S.C. S. Ct.

Attorneys

Discipline – Public Reprimand –Fraudulent Notary Attestations

The respondent-attorney has admitted that, on more than one occasion, she signed legal documents on behalf of her client(s) and notarized the signature purportedly attesting that her client(s) signed the document. Respondent also allowed her employee, a non-lawyer under her direct supervision, to notarize respondent’s signature on behalf of her client(s). Respondent’s conduct violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 3.3(a)(1) (prohibiting false statements of fact to a tribunal); Rule 4.1(a) (prohibiting false statements of fact to a third person); Rule 8.4(a) (prohibiting violations of the Rules of Professional Conduct); Rule 8.4(d) (prohibiting conduct involving dishonesty); Rule 8.4(e) (prohibiting conduct prejudicial to the administration of justice). Respondent admits her misconduct is grounds for discipline.

We accept the agreement for discipline by consent and publicly reprimand respondent.

In re Brown (Lawyers Weekly No. 010015-23, 3 pp.) (Per Curiam) Ericka Williams and Phylicia Coleman for the Office of Disciplinary Counsel; Tiffany Jane’ Brown, pro se. S.C. S. Ct.

Criminal Practice

CSC with a Minor – Solicitor’s Closing Argument – First Person

In his closing argument, the deputy solicitor should not have used the phrase “what was compelling to me” when referring to the victim’s testimony; however, defendant’s due process rights were not violated.

We affirm defendant’s conviction for second-degree criminal sexual conduct with a minor.

Defendant is the minor victim’s stepfather. The victim testified that defendant tried to have intercourse with her but was unable to do so because he was unable to achieve an erection. She testified that defendant told her about this health issue.

The deputy solicitor properly stressed to the jury that the victim had no other way to know about defendant’s erectile dysfunction. While he should not have used the phrase “what was compelling to me,” neither his use of the first person nor his use of the past tense constituted improper vouching in this case.

The deputy solicitor used the phrase in the context of explaining to the jury that he had joined the case only recently and learned about it along with the jury. Viewed in the proper context, therefore, the deputy solicitor’s use of the past tense was actually to lead the jury to focus on the evidence presented to them, not to improperly harken back to his unique knowledge of some event or proceeding outside their presence.

Even with the unnecessary use of “to me,” we see minimal risk the jury would perceive the deputy solicitor stepping out of his role as an advocate. The point of his statement was to highlight the importance of evidence that the victim knew defendant suffered from erectile dysfunction. The deputy solicitor was correct to stress that if being sexually assaulted was the only way she knew that the state’s case was essentially proven.

The deputy solicitor’s statement, therefore, was directly tied to evidence admitted at trial. By using the phrase “was compelling to me,” the deputy solicitor did no more than tell the jury he believed that this evidence—heard by the jury—was important to the jury’s decision. That is not vouching.

Affirmed.

State v. Busse (Lawyers Weekly No. 010-014-23, 9 pp.) (John Few, J.) Appealed from Newberry County Circuit Court (Donald Hocker, J.) Vicki Doutsogiannis and James Ross Snell for petitioner; Alan McCrory Wilson, Donald Zelenka, William Blitch, John Benjamin Aplin and David Matthew Stumbo for respondent.

S.C. S. Ct.

Criminal Practice

Murder – Prosecution Expert – Cell Phone Data

Where sheriff’s Sergeant Brandon Letterman (1) shadowed another investigator before becoming a computer and cell phone forensics analyst, (2) had been in that position for seven months by the time of defendant’s trial, (3) had prior field experience in numerous investigations, and (4) had been trained by the manufacturers of GeoTime and Cellebrite to use their programs to extract cell phone data for analysis in prior investigations, the circuit court did not abuse its discretion in finding Sergeant Letterman had the necessary training and expertise to be qualified as an expert in cell phone forensic examination and mapping.

We find no error in defendant’s murder conviction.

The state did not seek to have Letterman testify regarding matters beyond his level of skill, training, education, or experience.

Notably, Letterman’s testimony was narrowly focused on his examination of phone records obtained from cellular providers— an area in which he had the necessary knowledge and experience. His testimony never ventured into more complex areas of forensic mapping which may indeed have required greater training and expertise than Letterman possessed. Moreover, the exhibits Letterman discussed during his rebuttal testimony were “call detail records that were sent from the . . . cell phone company” that had already been admitted into evidence without objection earlier in the trial.

Defendant believed her estranged husband, the victim, had sold their children’s Christmas gifts and used the proceeds to buy drugs; in addition, the victim apparently posted sexually explicit photos of defendant on Facebook. Defendant made threats against the victim, and he was found dead the next morning with injuries consistent with having been struck by a vehicle.

Even though defense expert Tom Slovenski testified exclusively about defendant’s phone, the trial court did not err in allowing rebuttal testimony from Sergeant Letterman that included references to information gleaned from the phone of defendant’s companion, Brandon Blackwood.

Slovenski used cell phone data to opine that defendant was not in Cowpens at the time of the murder. Letterman was properly allowed to testify in rebuttal that certain cell phone data could have been the result of defendant turning off her phone or her battery going dead between the hours of 11:00 p.m. and 5:00 a.m. Letterman referred to Blackwood’s phone only to explain that texts Blackwood sent to defendant – the last of which was sent at 11:26 p.m. – loaded onto defendant’s phone at 2:09 a.m., along with eight other texts.

Letterman’s testimony addressing the phone records supported the state’s theory that defendant’s phone was powered down at key times throughout the night. This properly rebutted Slovenski’s testimony suggesting defendant’s phone was in Pacolet all night and could not have been in Cowpen when the victim was killed.

Affirmed.

State v. Wright (Lawyers Weekly No. 012012-23, 14 pp.) (Stephanie McDonald, J.) Appealed from Spartanburg County Circuit Court (Keith Kelly, J.) Jordan Christopher Calloway and Robert Michael Dudek for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Edgar Salter and Barry Joe Barnette for respondent. S.C. App. Unpub.

Criminal Practice

Supervised Release – Violation of Conditions – ‘Participate’ in Program – New Condition

Where a condition of defendant’s supervised release required him to “participate” in a sex offender treatment program, he did not fail to participate simply because he broke a program rule.

Nevertheless, we affirm the revocation of defendant’s supervised release and the imposition of lifetime supervision. We vacate one clause of a new special condition and remand for entry of a modified judgment striking that clause.

There is a difference between participating in something and perfect compliance with the rules of that thing. Here, the treatment provider itself did not consider defendant’s rules violation to be disqualifying. To the contrary, by stating it would discuss defendant’s behavior during an upcoming group therapy session, the provider assumed defendant’s continuing participation.

Because the district court identified no other basis for concluding defendant violated the participation condition, its determination on that point was legally erroneous.

However, in addition to requiring defendant to participate in a sex offender program, the conditions of his supervised release also forbade him from possessing audio or visual depictions containing sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A).

During defendant’s supervised release, his probation officer learned that he had been discussing sexual fetishes and exchanging pictures of his erect penis for photos of women’s breasts on social media. This not only broke the rules of the sex offender treatment program, but it also violated the condition of release that forbade him from possessing sexually explicit materials.

Both violations found were based on the same conduct, and we see no reason to believe the court would not have revoked defendant’s supervision had it properly classified his undisputed behavior as one violation rather than two. We thus hold the district court did not exceed its discretion in revoking defendant’s supervised release.

The district court imposed a new condition on defendant. Clause 1 of the new condition says defendant “must not possess, access, subscribe to, or view any videos, magazines, literature, photographs, images, drawings, video games, or Internet web sites depicting children or adults in the nude and/or engaged in sexual activity. . . .”

Special conditions of supervision may restrict only as much of a person’s liberty as reasonably necessary to further the purposes of sentencing, yet clause 1 has breathtaking reach. By its terms, clause 1 covers seemingly any visual or written medium in which any person is “depict[ed]” either “in the nude” (a term that goes undefined) or “engaged in sexual activity” (ditto). On its face, this condition would prevent defendant from watching a great many things on network television and counsels strongly against ever turning on HBO. It also prohibits defendant from viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo’s David, or Botticelli’s Birth of Venus.

Moreover, clause 1 covers types of materials (literature, video games, and magazines) that defendant does not appear to have ever used to further illegal conduct and prohibits any depictions of nudity even though all of defendant’s prior violations involved nudity of a sexually prurient nature. Because clause 1 imposes a greater deprivation of liberty than reasonably necessary, the

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