*1 Learning accept not Center would they any- did not believe Wendel because Dakota, Plaintiff STATE of South thing could done for him and no one be Appellee, and hire him. This evidence was suffi- prima case cient to facie establish permanent disability. total and BACHMAN, Defendant David Appellant. attempted and
Domestic this rebut through facie prima case No. 16381. rejected apparently Knudson. DL Knud- not son’s that Wendel was total Supreme Court South Dakota. permanently ly and disabled. fact may properly weigh finder the evidence April 25, Argued 1989. credibility and determine wit Sept. Decided 1989. Isaak, nesses. Isaak (S.D.1979); Barkdull, supra. see Rehearing Denied Oct. say clearly cannot DL was erroneous in determining permanently Wendel was
totally disabled.
5. Whether rehabilitation services provided
should been have de- before termining totally Wendel was
permanently disabled. claims
Domestic Wendel should
have received vocational rehabilitation be totally he
fore was determined to be
permanently disabled. Domestic claims jobs
there for which Wendel could
qualify he entered vocational rehabilita program.
tion
Irwin and testified that Carroll both totally permanently
Wendel disabled.
They further testified that Wendel was not no
a candidate for rehabilitation and reha- gain- assist him
bilitation would to become fact, eighteen-
fully employed. In over the during period
month Irwin met
Wendel, con- Irwin believed Wendel’s actually ultimately
dition worsened and
closed file. Domestic has offered
any to DVR that could assist alternative inability provide
Wendel. The failure program and the conclusion alternative DL’s representatives support find-
of DVR
ing that is not candidate for Wendel
vocational rehabilitation.
Affirmed.
theAll Justices concur. *2 Hubbard, Gen., Atty. A. Asst.
Wade Pierre, plaintiff appellee; Roger A. Gen., Tellinghuisen, Pierre, Atty. on the brief. Fritz, Maloney, Kolker,
Drew Johnson of Johnson, Aberdeen,-for Hogan & defendant appellant. MILLER, Justice. appeals Bachman his
David conviction for two counts of sexual contact awith years age under sixteen child and two affirm, rape. (1) holding counts of there was sufficient evidence to counts; (2) four verdicts on all in admitting did not err into expert testimony evidence concerning rape (3) syndrome; charges rape and are mutually sexual contact exclu- sive.
FACTS (mother Bachman met M.E. of the vic- tims) thereafter, Shortly 1985. they be- living gan together Sturgis, South Dako- A.E., D.E., Bachman ta. later met J.E. and who were M.E.’s previous children marriage. M.E.’s ex-husband al- her to custody lowed have summer Throughout summer, children. Bach- employed man at a tourist attraction nights nursing and M.E. worked at a home Spearfish. would Bachman return home job p.m., at 10:30 or 11:00 just Thus, prior departure to M.E.’s for work. Bachman was alone with children dur- ing nights. most During summer, Bachman would A.E., girl, 10-year-old take to the bed- he room shared with her mother. Once inside, he clothing would either take A.E.’s undressed, off or have her disrobe. Once Bachman would tie her to the bed with attempt ropes and would to have inter- occasions, with her. course On some he tape tape. her mouth shut with duct those he tape On occasions when did not shut, her mouth he would have oral inter- According course with her. to A.E.’s testi- mony, Bachman anal also had intercourse her. She further stated that this went every night” after on “almost the first two felony happened County, and of theft LaSalle of the children’s visit weeks Illinois, forty” thirty “over times. November J.E., also forced himself on A.E.’s sister convicted Bachman on all *3 nine, age in much the same manner. then stipulation He then counts. filed a He would sometimes force A.E. watch of trial on Part II of waiver the Informa- threat- his activities with J.E. Bachman tion. The trial court sentenced Bachman to brother, girls’ ened to harm the mother and (sexual years fifteen on Counts 1 and 3 D.E., they reported ever the molesta- contact with A.E. and 22-22- J.E.—SDCL tions. 7), twenty-five years on 2 (rape Count of girls The and their little brother returned 22-22-1(5)), A.E.—SDCL and life on Count August. year father in to their About a (rape 22-22-1(4)). of J.E.—SDCL The later, A.E. recounted the molestations to twenty-five-year fifteen and sentences for girl her father’s friend. A.E. was still too 1, 2, Bachman’s convictions on Counts frightened hap- to tell her father what had consecutively. 3 were to run His life sen- pened. very similar J.E. also recounted concurrently tence Count was to run story to her father’s friend. The mat- with his other sentences. ultimately reported ter was to and investi-
gated by Department the South Dakota of DECISION (DSS). A social work- Social Services DSS I girls’ very er that the found stories were story later consistent. J.E. related her WHETHER SUFFICIENT EVIDENCE agent of the Division of Criminal Inves- EXISTED TO SUPPORT THE JURY’S (DCI). tigation were examined VERDICT ON ALL FOUR COUNTS. Falls, by pediatrician in Sioux who found Bachman first claims that there in- injury hymen, evidence of to J.E.’s sufficient jury’s evidence to injury by attempt- could have been caused acquittal verdict and that his motion for penetration. ed The examination of A.E. granted. should have been He bases his septate hymen revealed that she had a so upon claim the fact that the victims’ stories possible only attempt that it would be were “incredible.” He focuses on A.E.’s intercourse her. pediatrician with raped inconsistent that she was attempted pen- found no evidence of anal forty forty-five times the course of girl, etration of either but concluded that (she forty-five days forty to had earlier such evidence would difficult find stated that the number of encounters was elapsed since fourteen months had since less), up eight in- far men were the claimed molestations. (no volved in her molestations other men charged Bachman was with two counts apprehended), were identified or and the rape1 of and two counts of sexual contact girls’ physical fact that the examinations stemming with a child under sixteen2 signs showed no clear of sexual abuse. girls’ molestations. A Part II Informa- filed, alleging requires tion Our review ac that Bachman had we second-degree robbery cept of been convicted the evidence and the inferences that Dakota, County, jury may sup Brown South March the have drawn therefrom in provides, (4) part: 1. SDCL 22-22-1 in salient A violation of subdivision ... ... this degree, section is in the first which is a Rape penetration is an act of sexual accom- (5) felony. Class 2 A violation of subdivision plished any person other than the actor’s degree, this section is second spouse any following one or more of the under felony. is a Class 3 circumstances: provides, part: 2. SDCL 22-22-7 in salient (4) years is than ten Where victim less older, Any years person, age fourteen age; or (5) knowingly engages years age, who is ten sexual contact with Where the victim person, spouse years age, perpe- and the another other than his when less than sixteen age years person older than the such other is under the of sixteen trator is at least three years guilty felony. of a Class 4 victim[.] port jury’s of the verdict. The verdict will case that Bachman committed the acts and not be if the set aside evidence and the denying trial court did not err in Dirk, reasonable drawn therefrom acquittal. his motion for supra. inferences theory guilt. sustain a rational (S.D. McCafferty,
State v.
ent
the number of
their
syndrome.
attacks,
inability
State’s
to locate the other
perpetrators
molestations,
claimed
requested
Bachman
pretrial
examina-
and the
report
victims’ failure to
the al
tion of A.E. and J.E. to determine their
leged
year
molestations for over a
competency
consti
testify truthfully
and to de-
tute a sufficient basis to conclude that the
they
termine whether
any
suffered from
evidence and the reasonable inferences mental or moral delusions or tendencies
drawn therefrom are insufficient to sustain which
imagination
would distort their
theory
guilt.
a rational
disagree.
affect
credibility.
girls
their
were
Williams,
evaluated
Dr.
who concluded
Both A.E. and
great
J.E.
testified at
they
competent
were
testify.
La-
length concerning Bachman’s activities
ter, Bachman
suppress
moved to
the testi-
with them. We first
young
note that
chil-
mony of Dr. Williams and Dr. Curran
generally
dren
unlikely
are
to fabricate a
(whom
planned
the State
to call to testify
graphic account of
activity
sexual
because
regarding post-traumatic
disorders).
stress
activity
beyond
such an
the realm of
Bachman contended that
dep-
Dr. Williams’
experience.
their
McCafferty, supra.
osition testimony
accomplished
had
pur-
Moreover,
pediatrician
who examined
pose
showing
that A.E. and J.E. knew
girls
both of the
testified to the existence
proceedings
nature of the
and were
of evidence
of their
been molested.
competent
otherwise
testify.
At the
Further,
psychologists
two
who testified
pretrial
conclusion of.
hearing,
the trial
concerning the mental condition of A.E.
suppress
denied his
motion
and J.E. noted
girls
that while the
recount-
testimony of Dr. Curran and took under
ed their
independently, they
stories
were
advisement
suppress
Bachman’s motion to
remarkably similar.
psychologist
One
trial,
of Dr. Williams. At
imme-
noted that it was not
unusual for
child
diately before Dr.
deposition
Williams’
who is a victim of molestation to wait for
read
to the
hearing
in-chambers
one
years
or two
reporting
before
such
was held at which time the trial court de-
abuse. Finally,
psychologist
one
noted
nied Bachman’s
suppress.
motion to
that it is not
give
uncommon for a child to
varying
(i.e.,
Williams,
details
the number of attacks
Dr.
by deposition,
told the
attackers)
re-relating
when
incidents of
that he interviewed both A.E. and J.E. and
that,
sexual abuse.
opinion,
Our review of the evidence
neither
any
showed
leads us to
symptoms
delusions,
the conclusion that
psychosis,
sufficient
or hallu-
presented
evidence
uphold
cinations,
jury's
they
symp-
but that
showed some
McCafferty, supra.
verdict.
We further
toms found in sexual abuse victims. Dr.
Curran,
presented prima
conclude that State
who had
facie
not interviewed the chil-
discretion in
concerning
concerning the
court’s
dren, gave live
Further,
testimony.4
admitting expert
sexually abused
patterns that a
behavior
holding
Logue,
to our
while we adhere
demonstrate,
including their
child would
inapposite
it is
to the facts
we believe that
abuse, night-
the claimed
to disclose
failure
Drs.
Logue,
in this
Unlike
Williams
case.
mares, insomnia, et cetera.
undoubtedly qualified as
and Curran were
trial court
note that
We first
Moreover,
experts.
testified that
neither
qualifi
concerning the
has broad discretion
either A.E. or J.E. had been molested
of ex
admission
cation
Bachman and neither testified that
decision
pert testimony. The trial court’s
absolutely
telling the truth.
In-
were
absent
will not be reversed
on such matters
stead,
simply
both
Drs. William and Curran
showing
abuse of discretion.
a clear
of an
expert knowledge
shared their
(S.D.1985).
Logue,
determining
jury in
to assist it
order
standard
submits that
different
and J.E. had been molested
whether A.E.
reviewing this issue. Re
used in
must be
give
and the amount
credence
State, 312 Md.
lying on Bohnert v.
girls’ testimony. The use of such testimo-
*5
(1988),
the admis
he claims that
A.2d 657
Swallow,
ny
v.
was also discussed
State
law,
testimony is matter of
expert
a
sion of
(S.D.1984),
we
wherein
law,
question
a
of
a
ruling
on
“[i]n
determining
the
factor in admit-
stated that
right wrong,
or
and discre
judge is either
ting expert testimony
is whether it
A.2d at 663.
plays
part.”
no
Id. 539
tion
understanding
matters
jury
assist the
standard, Bachman submits
Using that
normally
lay-
would not lie within a
that
admitting the
trial
erred in
court
Moreover,
knowledge.
man’s
of
breadth
to
of rele
expert testimony due
its lack
that
to
jury
the
here was instructed
it was
vance,
tendency to
the
its
invade
judge
credibility
of
of the
be the sole
the
to
the
Frye
failure meet
its
child witnesses and that it was not bound
to a
right
of his
fair
test3 and
violation
opinions
accept the
of either doctor.5
to
trial.
also asserts that the ex
heavily
relies
on this
Bachman also
testimony concerning
pert
holding
Logue, supra.
Lo-
court’s
admitted,
syndrome should not have been
prejudicial
held
it was
error
gue, we
that
Saldana,
on
primarily relying
State
give
opinion
worker to
her
that
for a social
(Minn.1982). The court in Sal-
N.W.2d 227
alleged
gained
an
victim
his sexual knowl-
syndrome is
that
dana stated
edge
having sex with the defendant.
from
tool,
fact-finding
a
rather a thera
not
but
permitting the social
We noted therein that
counseling.
It also
peutic tool useful in
expert
testify
to
as an
in that case
worker
majority of courts that have
noted that a
stamp
to
legitimacy
a
of undue
her
“lent
it
the issue hold that
is errone
considered
Our
testimony.”
person lar presented there is trade which the one of those question ‘unusual cases’ in relates are testimo- admissible in evi- ny concerning a credibility of witness dence. ever, single oc- only in sexual act Frye test that F. at 1014. The
Frye, 293 Here, A.E. and J.E. testified that in curred. recently by this court State reaffirmed (S.D.1988) Bachman molested them on several Miller, had (S.D. peri- Adams, occasions in different manners over N.W.2d State Thus, giving deference 1988). those od of weeks. due Bachman that courts submits determination, McCafferty, applied jury’s test to Frye have supra, possible we that it was that such testi believe syndrome have held See, People raped Bachman each on some occa- e.g., had mony is inadmissible. constituting acts Bledsoe, Cal.Rptr. separate sions and that 36 Cal.3d (1984). However, place we sexual contact took on other occa- P.2d 291 believe testimony of and J.E. by cases cited sions. The A.E. Bledsoe and the other attempted oral, anal again distinguishable. The showed that Bachman Bachman are vaginal Dr. intercourse with each of them. testimony Curran attempted not If those acts or acts occurred syndrome does violate mandate of times, then the of each setting criminal trial for different elements of a met by offense have been abuse of a child. the sexual allowing have inform the the court would not erred merely offered charges both displayed consider the characteristics which sexually and sexual who has been abused. contact. one an ultimate fact testimony did reach have Bachman’s other is- examined invade and did not (whether sues the trial court erred in allow- designed rather was to assist concerning ing Bachman question State to making thus hold its decision. We conviction; prior felony whether the Dr. testimony of Curran allowing State to examine court erred requirements met the set forth concerning allegedly pro- matters Frye. attorney/client privilege; and tected trial court violated Bachman’s whether the
Ill rights length constitutional due *7 imposed) and find them to be THE TRIAL COURT ERRED the sentences WHETHER TO IN THE JURY CON- without merit. ALLOWING OF SIDER BOTH CHARGES RAPE Affirmed. AND SEXUAL CONTACTWITHOUT THE INSTRUCTING IT AS TO MU- WUEST, MORGAN, J., C.J., and THE TUAL OF EXCLUSIVITY concur. CHARGES. JJ., SABERS, and HENDERSON Bachman next contends that the tri dissent. objec his erred when it overruled
al court
HENDERSON,
(dissenting).
Justice
(which
and 33
set
tions to instructions 32
offenses)
testimony
The
respectfully
I
dissent.
and
the elements of the
forth
Williams,
syn-
regarding
Dr.
proffered
it refused his
instructions
when
drome,
deprived Bachman
a fair trial
exclusivity
mutual
pertained
testimony
unde-
imbuing
girls’
with an
rape.
offenses of sexual contact
of the
Therefore,
aura of truth.
proposed in
served scientific
purpose of Bachman’s
The
it
I would reverse.
explain
to the
structions was
guilty
on both
not return
verdict
could
neither
majority opinion
The
relates that
stemming from
contact and
sexual
Dr. Curran “testified
Dr. Williams nor
one incident.
had been molested
either A.E. or J.E.
neither testified that
Bachman and
initially note that Bachman
correct
absolutely telling the truth.”
girls were
separate
and dis-
that sexual contact is
Dr.
may have been true of
This statement
State v.
rape.
offense from
tinct
Curran,
girls,
not examined the
(S.D.1981).
who had
Brammer,
111
N.W.2d
that the
did
Dr. Williams testified
distinguishable, how- but
factually
Brammer is
Bachman,
i.e.,
“any
symptoms indicat-
were
not exhibit
mental-
with
“reflective
ing any psychosis, delusions, hallucinating,
frequently
in a
syndrome that’s
found
impairment
Thus,
other mental
or emotional
or
physical or sexual abuse cases.”
impairment
testimony
at this time.” This
connected Bachman to
Williams
abuse
girls’
commentary
direct
on the
credi-
1)
girls;
A.E. had bad dreams about
witnesses,
bility as
which is
exclusive
incident; 2)
dreams,
charged
these
Dr.
See,
Huber,
v.
State
jury.
believed,
Williams
indicated sexual abuse.
(S.D.1984);
356 N.W.2d
predicate, necessarily,
Bach-
was that
Bonrud,
(S.D.1976).
246 N.W.2d
Swallow,
guilty.
State
man was
Unlike
prejudice
of Dr. Williams’
(S.D.1984),
coun
where a
outweighed
probative
value
had too
generalized
about
selor testified
terms
potential
jury.
much
to mislead the
This
pedophilia,
specifically
Dr. Williams
con
is not
the “ultimate
conclusion
based on
girls,
sexu
particularly,
nected the
A.E.
*
doctrine”,
rejected in
fact
which this Court
alleged
al abuse
“the
incident.”
Logue,
(S.D.1985).
State
Taylor,
(Mo.
opinion alleged gained victim ty- knowledge sexual sex appellant, stamp legiti- lent a undue Taylor, Similarly, Dr. Williams macy to testimony. Admittedly, her significance testified about A.E.’s trial court quali- has broad discretion in memory, flashback which “is not some here, we are not fying but, thing an individual has control over.” The dealing with data will scientific only purpose imper- of such is to the jury wholly beyond aid in an area missibly the credibility enhance of the wit *8 understanding. Clearly, their the so- ness, See, Commonwealth v. Galla A.E. empiricism cial sciences do not claim 291, 295-297, gher, 519 Pa. 355, 547 A.2d physics exactitude that scientific (1988). testimony 358 The risk of aspire medicine to. We believe complaining that a witness suffers from possibility prejudice substan- rape syndrome trauma is obvious: “[T]he tially outweighed probative value of terminology use of likely such to mislead testimony, this and that the trial court jury inferring into that such a classifi clearly in admitting abused its discretion judgment cation reflects a scientific that it. was, fact, raped.” People in witness added).
Logue,
(emphisis
at 157.
Coleman,
112, 143-44,
48 Cal.3d
255 Cal.
813, 830,
32,
Rptr.
(1989) (quot
Dr. Williams
that
768 P.2d
49
also testified
she be
Bledsoe,
236,
ing People
dreams,
according
A.E.’s
203
lieved
bad
Cal.3d
A.E.,
account,
450,
Cal.Rptr.
(1984)).
“to
In
Williams’
most
P.2d 291
alleged incident[,]” Coleman,
Supreme
extent referred to the
the California
re
Court
*
making
septate hymen,
penetration
A.E. had a
the trial
men. Even
story
court commented that her
impossible;
signs
physical
rape
there were no
was "somewhat incredible” and also re-
A.E.; yet, supposedly,
raped
girls’
she was
40 to 45
ferred to
statements as an "incredible
approximately
days by eight
story”.
in
times
40 to 45
ban,
Bledsoe,
251-52,
460,
pra,
Cal.Rptr.,
in
at
at
enunciated
Cal.3d
iterated
type given
here:
“harmless error.” Defendant
removal of experts’ testimony from this case
would have left pondering
whether it was eight believable that men engage in sexual intercourse ev-