State v. Toohey
816 N.W.2d 120
| S.D. | 2012Background
- Toohey was convicted by jury of first degree rape of a child involving KM, a ten-year-old girl.
- KM described being alone with Toohey in a farmhouse, where she was made to pull down her shorts and underwear and Toohey touched her in the pudendal area, causing pain.
- Forensic interviewer Strand recorded KM’s statements; KM also described a later kiss and ‘secret girlfriend’ remark at the family home.
- Toohey admitted being with KM but denied touching or kissing her during investigations and interview.
- The State sought to admit Toohey’s kiss at KM’s house as an other-acts item under Rule 404(b); court admitted it with a limiting instruction.
- On trial, KM testified with some details; the State argued that penetration could be inferred from evidence of touching and pain; the jury convicted Toohey and he appealed on three grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation and witness unavailability | Toohey: KM unavailable; statements inadmissible | Toohey: unavailable witness, Crawford requires exclusion | KM available; no Confrontation Clause error |
| Admission of other-act evidence | Toohey kissing KM showed lustful interest | State needed to prove intent/absence of mistake; probative and properly limited | Admissible 404(b) evidence; proper limiting instruction |
| Sufficiency of proof of penetration | Evidence insufficient to prove penetration | Evidence supports circumstantial penetration via touching causing pain | Sufficient evidence; rational juror could find penetration beyond reasonable doubt |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. Supreme Court (2004)) (Confrontation Clause; testimonial statements require opportunity to cross-examine)
- Carothers I, 2005 SD 16, 692 N.W.2d 544 (South Dakota Supreme Court (2005)) (Confrontation analysis post-Crawford in SD)
- Carothers II, 2006 S.D. 100, 724 N.W.2d 610 (South Dakota Supreme Court (2006)) (Admissibility of child statements under confrontation rules; abuse of discretion standard)
- United States v. Owens, 484 U.S. 554 (U.S. Supreme Court (1988)) (Cross-examination adequacy; not required to expose every weakness)
- State v. McCafferty, 356 N.W.2d 159 (SD Supreme Court (1984)) (Confrontation considerations for child witnesses)
- Fensterer, 474 U.S. 15 (U.S. Supreme Court (1985)) (Confrontation Clause limits; cross-examination required where feasible)
- State v. St. John, 851 F.2d 109 (8th Cir. 1988) (Eighth Circuit (1988)) (Penetration proof via circumstantial evidence; child testimony sufficient with pain)