State v. Pretty Weasel, 994 N.W.2d 435

Background

Victim A.D., born to Jennean and Barrios, disclosed in March 2020 that stepfather Vandon Pretty Weasel had engaged in repeated sexual contact and at least one rape; a prior 2015 report involving the stepbrother K.P. led to family counseling.
After A.D.’s disclosure, Jennean recorded a phone call with Pretty Weasel in which he expressed guilt and made equivocal statements; a CAC forensic interview and tablet messages corroborated A.D.’s disclosures describing digital penetration and cunnilingus.
The defense subpoenaed A.D.’s counseling records from therapist Debra Hughes; the records were produced the first day of trial after jury selection and the State called Hughes without providing pretrial expert notice as ordered by the court.
Hughes, a licensed child trauma therapist, testified about A.D.’s hygiene/appearance, diagnosed A.D. with PTSD, and opined there was no connection between A.D.’s dislike of Pretty Weasel for spanking and her sexual-abuse allegations; defense objected to portions as unnoticed expert testimony.
Jury convicted Pretty Weasel on ten counts of sexual contact and one count of first-degree rape; he appealed arguing (1) the State failed to timely disclose Hughes as an expert and (2) Hughes’ testimony improperly bolstered the victim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of expert-notice objections	State: defendant failed to preserve objections by not objecting at call of witness and not fully explaining objections	Pretty Weasel: timely objected to specific questions as unnoticed 702/expert testimony and preserved the issue	Court: objections to Hughes’ expert testimony were sufficient to preserve appellate review
Whether Hughes’ testimony was expert testimony	State: Hughes’ comments were lay observations, not expert opinion requiring notice	Pretty Weasel: Hughes gave opinions based on professional expertise (diagnosis, meaning of hygiene/appearance, child-thought processes) so SDCL 19-19-702 applied	Court: Hughes’ hygiene/diagnosis and child-thought-process opinions were expert testimony subject to the notice order; her comment about lack of connection was also expert because it relied on specialized knowledge
Whether allowing unnoticed expert testimony was abuse of discretion and prejudicial	State: late calling occurred after records production; any error was harmless because similar facts were already elicited and other evidence was overwhelming	Pretty Weasel: the court’s pretrial order required disclosure and admitting unnoticed expert testimony was an abuse and prejudicial	Court: admitting unnoticed expert testimony violated the pretrial order (abuse of discretion) but was harmless given duplicative testimony, other admitted evidence, and lack of impact on trial outcome
Whether Hughes’ testimony improperly bolstered A.D.’s credibility	State: Hughes did not diagnose "child sexual abuse" or directly vouch for truthfulness; her testimony explained trauma-consistent behavior	Pretty Weasel: diagnosis of PTSD and expert explanations effectively vouched for the victim and told the jury what to find (impermissible bolstering)	Court: testimony did not impermissibly bolster — Hughes did not link PTSD causally to Pretty Weasel, was not asked to opine that A.D. was telling the truth, and the jury was not told to adopt her view

Key Cases Cited

State v. Blem, 610 N.W.2d 803 (S.D. 2000) (State must disclose expert opinions even if learned shortly before testimony)
State v. Buchholtz, 841 N.W.2d 449 (S.D. 2013) (expert may not give an opinion that effectively vouches for a witness’s truthfulness)
State v. Janis, 880 N.W.2d 76 (S.D. 2016) (standard of review for expert testimony is abuse of discretion)
State v. Hankins, 982 N.W.2d 21 (S.D. 2022) (two-step review for evidentiary rulings: abuse of discretion and prejudice analysis)
State v. Andrews, 623 N.W.2d 78 (S.D. 2001) (distinguishing lay opinion limits from expert testimony when specialized knowledge is required)