STATE оf South Dakota, Plaintiff and Appellee, v. Kenneth CATES, Defendant and Appellant.
No. 21450
Supreme Court of South Dakota
Decided July 25, 2001
2001 SD 99
Argued Jan. 9, 2001.
[¶ 32.] In summary, City waived its sovereign immunity by participation in the SDPAA to the extent of coverage afforded. Under the facts before us, City can not reassert sovereign immunity once it is waived. Kelly Cromwell, Christopher‘s guardian, brought this case timely and properly and is entitled to have his day in court. There remain genuine issues of material fact including the question of whether Officer Lang‘s actions were negligent. “It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.” Piner v. Jensen, 519 N.W.2d 337, 340 (S.D. 1994) (quoting Wilson v. Great Northern Ry. Co., 83 S.D. 207, 211, 157 N.W.2d 19, 21 (1968)). The denial of summary judgment is affirmed.
[¶ 33.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.
[¶ 34.] LOVRIEN, Circuit Judge, for KONENKAMP, Justice, disqualified.
Kevin Lewis, Pennington County Public Defender‘s Office, Rapid City, SD, Attorney for defendant and appellant.
KONENKAMP, Justice
[¶ 1.] Can a sex abuse perpetrator be convicted of both rape and criminal pedophilia for multiple acts of sexual penetration committed in the same period? The defendаnt contends that because the acts occurred in the course of one evening, multiple punishments for these acts constitute double jeopardy. We conclude that because there were at least two acts of sexual penetration, the two convictions were proper. In addition, the defendant appeals on several other grounds, including (1) the admission оf hearsay evidence under
A.
[¶ 2.] On February 28, 1999, Debbie Dillon and her six-year-old daughter, P.B., went to Ken Cates‘s Rapid City home to check on P.B.‘s bicycle, which Cates had promised to fix. Cates was cooking bratwurst and burgers for dinner and invited P.B. to stay and eat. Debbie felt comfortable leaving P.B. with Cates, as he was a long-time family friend. P.B. and her family spent a great amount of time with him. She even referred to him as “Uncle Ken,” though he was not really her uncle. Before Debbie lеft, she and Cates arranged that he would drive P.B. home after din
[¶ 3.] Cates asked her if she wanted to play strip poker. She said “No,” but then he became angry, so she changed her mind. He locked the doors, closed the shades, and dealt the cards. At the time, P.B. did not know what strip poker was, but on the first hаnd, “he like took off first.” In each successive hand, Cates lost and then P.B. lost, until neither had any clothes on. Cates then “got on top” of her and “touched” with his fingers and “licked” inside her “private.” When she got home that night, P.B. said nothing of the event to her mother. She was afraid to tell anyone. Cates had told her that if she did, her mother would “shoot a bullet through [Cates‘s] head.” At the time, Cates was thirty-seven.
[¶ 4.] On March 4, 1999, Debbiе took P.B. to the doctor after she complained that her “private” hurt when she urinated. During the examination, the doctor asked P.B. if anyone had touched her. She responded, “No.” After leaving the doctor‘s office, however, P.B. asked her mother what strip poker was. When Debbie asked P.B. why she wanted to know, P.B. responded that Uncle Ken had showed her how to play. On arriving home, Debbie сalled the police and reported what she knew of the incident. While an officer was interviewing P.B. at her home, Cates showed up.
[¶ 5.] Cates was charged with one count of first degree rape and one count of criminal pedophilia.1 At trial, P.B. testified about the incident. It is undisputed that on several occasions she reported differing details on the specifics of this encounter.2 These discrepancies were explored on cross-examination. While being cross-examined, she added that Cates‘s penis had gone inside her vagina. The State offered and the court allowed testimony by Officer Jerry Moore, Debra Dillon, and Steve Oberman. Each of these persons related statements P.B. had made about the incident. The court allowed these statemеnts under the hearsay exception in
B.
Multiple Acts Constituting Rape and Pedophilia
[¶ 6.] Cates believes that rape under
[¶ 7.] The Double Jeopardy Clause of the
[¶ 8.] Cates believes that his convictions for first degree rape and criminal pedophilia were improper “[b]ecause identical facts were used to prove both offenses, and the victim was identical.” This argument ignores that the jury was presented with evidence that Cates accomplished more than one act of penetration on P.B.3 She testified that his fingers and tongue went inside her vagina. On cross-examination she answered “Yeah,” when asked, “Did his—did [Cates‘s] penis go inside your private parts?”
[¶ 9.] The language in
C.
Hearsay From Child Victim
[¶ 10.] Cates challenges the trial court‘s decision to allow P.B.‘s out-of-court statements. When reviewing an evidentiary ruling, we apply the abuse of discretion standard. State v. Peterson, 1996 SD 140, ¶ 8, 557 N.W.2d 389, 391 (citations omitted).
[¶ 11.] As witnesses, children are neither inherently reliable nor inherently unreliable. Each child‘s statement must be evaluated on its own merits. Several factors should be considered when assessing reliability. These include: (1) the child‘s age and maturity; (2) the nature and duration of the abuse; (3) the relationship of the child to the offender; (4) the coherence of the statement, bearing in mind that young children may sometimes describе incidents in age appropriate language and in a disorganized manner; (5) the child‘s capacity to observe, retain, and communicate information; (6) the nature and character of the statement itself, considering the child‘s developmental limitations in understanding and describing sexual behavior; (7) any motivation of the child to make a false allegation or a false denial; (8) the child‘s susceptibility to suggestion and the integrity of the situation under which the statement was obtained; and (9) all the circumstances under which the statement was made. See generally State v. Thompson, 379 N.W.2d 295, 297-98 (S.D. 1985). See also John W. Larson, South Dakota Evidence § 807.1 (2001). No single consideration is dispositive. Trial courts must examine the totality of the circumstances surrounding the statement. Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148-49, 111 L.Ed.2d 638 (1990). A decision on reliability must be made before the аdmission of hearsay evidence. State v. Buller, 484 N.W.2d 883, 886 (S.D. 1992) (citations omitted).
[¶ 12.] Before trial, the court took testimony to establish reliability under
[¶ 13.] Cates alleges that because P.B.‘s statements were made in response to questions and were not excited utterances, the statements were unreliable. He also asserts that each statement gave a somewhat different factual picture, so the statements were inherently unreliable. The first assertion is untenable. If the statements were excited utterances, then
D.
Psychiatric Exam of Victim
[¶ 14.] Cates moved for an order requiring P.B. to undergo a psychiatric exam. In denying the motion, the court found no “evidence that comes close to supporting the belief that there is any delusional behavior” to justify an examination. The decision to grant or deny such a mental health evaluation lies in the discretion of the court. State v. Christopherson, 482 N.W.2d 298, 304 (S.D. 1992) (citing State v. Blalack, 434 N.W.2d 55, 60 (S.D. 1988)).
[¶ 15.] For an alleged sex abuse victim, the purpose of a psychological or psychiatric exam is to detect any mental delusions that would distort the victim‘s perceptions, thus casting doubt on credibility. State v. Logue, 372 N.W.2d 151, 155-56 (S.D. 1985). Cates bore the burden of showing a substantial justification before his request could be granted. See Blalack, 434 N.W.2d at 60. He asserts that P.B. told her story four times with different details each time. According to Cates, these inconsistencies when coupled with the absenсe of physical evidence constitute “grounds to question [P.B.‘s] mental state.” Inconsistency in testimony alone will not establish a suggestion of mental delusion. Furthermore, the jury was presented with expert testimony explaining that it is common for young children to give different details when recounting incidents of sexual molestation. The circuit court did not abuse its discretion in denying the motion.
E.
Discovery of Child‘s Mental Health Reports
[¶ 16.] Cates requested an order for “production of any counselor, psychologist, or psychiatric reports conducted on the alleged victim....” He sought this material based on the inconsistencies in P.B.‘s statements. He argued that an inconsistent statement to a counselor would constitute impeachment evidence. At the time of this request, Cates was “unaware” if P.B. had obtained any counseling or if any reports existed. Anticipating an invocation of privilege, Cates argued that any privilege that existed between P.B. and a counselor or a psychiatrist was waived when P.B. spoke to her mother and law enforcement officers and testified at a preliminary hearing.8 In the alternative, Cates requested that the court conduct an in camera review of any reports.
[¶ 17.] The trial cоurt denied the request, acting on the belief that such records were confidential. The judge acknowledged that this interpretation may be at odds with State v. Karlen. Nonetheless, the court went on to state that the
[¶ 18.] We are unable to conduct an adequate appellate review of this matter because it is unclear from the settled record whether the requested reports exist. At the motion hearing, the following exchange occurred:
The Court: And has any report been issued from that counselor to your knowledge?
Prosecutor: To my knowledge, I have not inquired. So I do not know if any report has issued or not.
The Court: And for the record so we have a record for сounsel‘s benefit, the name of the counselor if you know?
Prosecutor: I do not know, Your Honor.
The Court: But you could provide that?
Prosecutor: I could provide that.
The State provided the name of P.B.‘s counselor to the court and defense counsel. There is nothing to suggest whether this counselor had any reports to disclose. Nor is there any indication that defense counsel served the counselor with a subpoena to bring the reports to court for an in camera inspection. Thus, it is impossible for us, not knowing if the reports exist, to determine whether the trial court abused its discretion in denying defense counsel access to them. And if the reports do exist, we cannot know if they contain useful, discoverable material, and if denial of access was prejudicial. Cates, as the party claiming error, carried the responsibility of ensuring an adequate record. State v. Jones, 416 N.W.2d 875, 878 (S.D. 1987) (citing State v. Olson, 408 N.W.2d 748, 752 (S.D. 1987)) (further citations omitted). When confronted with an incomplete record, we presume that the trial court acted properly.9 Id. Thus we affirm the circuit court‘s order.
F.
Characteristics of Child Sex Abuse Victims
[¶ 19.] Expert testimony explaining the general characteristics of sexually abused children is admissible when relevant. See State v. Edelman, 1999 SD 52, ¶ 15, 593 N.W.2d 419, 422. See also State v. Spaans, 455 N.W.2d 596, 598-99 (S.D. 1990). In fact, we have upheld expert testimony that went further than this case, allowing an expert to tie general characteristics to a particular victim. Floody, 481 N.W.2d at 249 (citations omitted). The testimony here was clearly within the bounds set in prior case law. Consequently, we cannot say that the court abused its discretion. See Spaans, 455 N.W.2d at 599.
Sufficiency of the Evidence
[¶ 20.] Cates argues that the evidence was insufficient as a matter of law to convict him of first degree rape and criminal pedophilia. To prove first degree rape, there must be evidence showing that the transgressor accomplished an act of sexual penetration, however slight, against a victim less than ten years of age. See
[¶ 21.] Affirmed.
[¶ 22.] MILLER, Chief Justice, and GILBERTSON, Justice, concur.
[¶ 23.] SABERS, Justice, concurs specially.
[¶ 24.] AMUNDSON, Justice, concurs in part and concurs in result in part.
SABERS, Justice (concurring specially).
[¶ 25.] I concur specially as there is evidence to support separate acts of penetration for both crimes.
AMUNDSON, Justice (concurring in part and concurring in result in part).
[¶ 26.] I concur as to issues C, D, E, F, G, and concur in result as to issue B since it is obviоus that Cates can only serve one life sentence without parole and there is sufficient evidence in the record to convict on either criminal pedophilia or first degree rape.