*1 uncharged dealing acts which that the defendant
simply tended show Therefore, these un- man. charged were too prior bad acts prevented defen- too remote and receiving a fair trial. dant from See (S.D.1986) 424, 434 Rufener, 392 N.W.2d (Sabers, dissenting). J. this case for a fair
If we fail send back trial, message prosecutors our is clear— forever, stays open keep wink-
open season ing at rules. and remand for a fair
We should reverse trial. Dakota, Plaintiff
STATE South Appellee, CHRISTOPHERSON, Mark O. Appellant. Defendant No. 17314. Supreme of South Dakota. Court Resubmitted on Briefs Dec. 1991. Decided March 1992. Rehearing April Denied *2 Barnett, Gen.,
Mark Atty. Geagh- Frank an, Gen., Atty. Pierre, Asst. plaintiff appellee. Falls, Binger, Steven R. Sioux Philip G. Villaume, Bloomington, Minn., for defen- appellant. dant and MILLER, Chief Justice.
ACTION
Mark Christopherson appeals from his conviction for three counts of sexual con- tact with a minor. We affirm.
FACTS
Christopherson, taught special had who education for approximately twenty years Madison, Dakota, and around South charged with five counts of sexual contact (SDCL22-22-7) with a minor and one count (SDCL 22-22-1(5)). rape The six counts against Christopherson solely arose out of year sexual contact with a fourteen old (hereinafter D.D.). boy Christopher- called allegedly son masturbated D.D. on five oc- guest casions while was a parents. at the home of D.D.’s D.D. also alleged per- once formed oral sex on him.
The factual underlying circumstances substantially each count are similar. D.D. sleep living would on the room couch when Christopherson stayed overnight. Christo- pherson family sleep up- and his would stairs D.D.’s bedroom.
would come downstairs and talk to D.D.
evening. Christopherson
late in the
would
eventually
pants
take D.D’s
and underwear
Then,
watching
down to his ankles.
while
get caught,
"the stairs to be sure not to
Christopherson would masturbate D.D.
Meanwhile, Christopherson’s family and
parents
sleeping upstairs.
D.D.’s
Christopherson pled
guilty
and as-
serted
alibi defense. He filed a motion
an
using
prevent
First, the
if
trial court determines
the bad
males who also claimed
other adult
five
act evidence is relevant
the issues on
contact with
relevancy
trial.
Id. Once
has been
estab
were minors.
them while
lished,
must decide if the
court
hearing
evidentiary
on the
held
an
*3
of the evidence is
value
substan
ruled that
act
and
proposed bad
evidence
tially outweighed by
effect.
the witnesses was
from three of
413,
Basker,
(S.D.
468 N.W.2d
415
admissible,
testimony from
excluded
but
1991).
analyze
court must
the nature
The
two other witnesses.
perform
facts
the
and
of
bad acts
trial,
Christopherson proposed jury
At
balancing
Chapin,
test.
460
at
instruction,
set forth the “reasonable
which
422;
Titus,
426
State v.
distinguished it from
and
standard
doubt’.’
1988). Similarly,
important
it is
that evi
convincing
stan-
“clear and
evidence”
of the nature and facts of the
dence
rejected Christopher-
The
dard.
goes
jury
acts
before the
so
know
gave
and
proposed
instruction
son’s
why
pur
the evidence is relevant and the
on
pattern jury instruction
“reasonable
pose
Chapin,
itsof
admission.
460 N.W.2d
doubt.”
at
Christopherson guilty
of
The
found
evidentiary
held an
The trial court
(He
of sexual contact.
was
three counts
hearing
on
motion to ex
guilty
of two counts
sexual
found
clude evidence
bad acts. Three
guilty
rape.)
contact and not
concerning
men
Christopher-
testified
Christopherson to five
judge sentenced
with them.
son’s sexual contact
State
count,
penitentiary on each
years in the
ments were introduced from two other wit
to be served consecu-
with the sentences
describing Christopherson’s
nesses
Christopherson appeals, asserting
tively.
with
The three witnesses
contact
them.
in admitting
court erred
that the trial
testified to
fol
appeal
relevant to this
refusing
and in
prior bad act evidence
lowing
evidentiary hearing
facts at the
give
proposed jury
instruction.
at trial.
Christopherson had
D.W. testified that
ANALYSIS
ap-
him when he
sexual contact with
was
THE ADMIS-
WHETHER ALLOWING
old,
years
12
in 1973.
proximately
D.W.
ACT
AN
OF BAD
EVIDENCE WAS
SION
friends,
family
in-
camping
went
OF THE TRIAL COURT’S DIS-
ABUSE
Christopherson.
cluding
D.W. shared a
CRETION.
Christopherson. During the
tent with
A trial court’s decision to admit bad
got
night, Christopherson
into D.W.’s
unless
act evidence will not be overturned
unzipped
jeans.
sleeping bag and
D.W.’s
judge abused his discretion.
the trial
State Christopherson
D.W.’s testicles and
fondled
420,
421
Chapin,
resistance,
penis.
Christo-
Despite D.W.’s
provides:
19-12-5
masturbating
pherson continued
D.W. for
crimes, wrongs,
10
minutes.
approximately
other
or acts
to 15
While
Evidence of
on,
going
family and
were
not admissible to
the character
this was
friends
is
campers.
in
person
sleeping nearby
he
tents and
of a
order
show that
conformity
may,
It
acted
therewith.
S.P. testified that
started
however,
pur-
other
be admissible for
with him at the local
conversation
swim-
motive,
proof
opportu-
poses, such as
15
ming pool
in 1979.
S.P.
about
intent, preparation, plan,
nity,
knowl-'
old at
the time.
invited
edge, identity, or absence of mistake or
home
see
S.P. and his mother to visit his
accident.
antiques.
Christopherson developed
At
friendship
and his mother.
courts must follow two
with S.P.
Trial
life,
considering
point
whether bad act
that
in his
S.P. was
step process to decide
becoming minister or a counselor. Later
admissible. State
Cham
(S.D. 1988).
Christopherson told S.P. he was
842
pagne,
education stu- provingly
People Williams,
taking
special
some of his
He invited S.P. to
camping trip.
on a
Cal.App.3d
Cal.Rptr.
(1981),
dents
along
help
students.
come
counsel
“[ejvidence
sex
other
offenses hav
student had a
Christopherson said a female
ing distinctive, similar characteristics to
on
which
be confront-
crush
S.P.
needed
charged
generally
those
admissible on
S.P. went on this
ed.
issue of
identity
defendant’s
if such
camping
permission from
trip
getting
after
are
in time[,]
offenses
not too remote
are
camp-
mother.
at the
S.P.’s
S.P. discovered
sufficiently
charged,
similar to the offense
site
upon persons
committed
similar to
camping
During
night,
trip.
prosecuting
Thomas,
witness.”
Christopherson placed his elbow on S.P.’s
Williams,
N.W.2d at 236 citing
115 Cal.
*4
neck and held him
while he mastur-
down
App.3d
Cal.Rptr.
at
171
at 404. See
performed
oral sex on him. S.P.
bated
Willis,
also State v.
302 Means, 363 analysis act similar the bad State
Alternatively, (S.D.1985), As we intent. noted admissible N.W.2d wherein we Basker, sexual con develop the offense that “Means had to ... a relation- noted families, 22-22-7 is a ship tact with a minor under and then of trust with the case af In that specific intent crime. opportunity an act.” at 569. wait for Id. evidence to of bad act firmed the admission standard of is whether Our review to arouse or defendant’s intent establish in admit trial court abused discretion Basker, 468 produce gratification. Dace, ting the evidence. State N.W.2d at Wedemann, (S.D.1983); N.W.2d argument Christopherson’s primary In review at 115. “[w]e acts too remote is that the bad by question is ‘not bound the rule that the justify prejudice their in time to judges of this court would whether the Wedemann, admission. State ruling, original made like but rath have an (S.D.1983), set we chose mind, in judicial er whether we believe rigid time limitation determine wheth circumstances, of the law and the view Instead, acts are too remote. er reasonably have conclu could reached that ” that, “[wjhether acts are too we noted Rose, sion.’ *5 realistically depend their remote must (S.D.1982) quoting Slagle F.M. & 895-96 at nature.” Id. 115. See also State Bushnell, 70 S.D. 16 N.W.2d Co. v. (S.D.1989). Perkins, 444 Each (1944). carefully reviewing After because, analyzed on own case must be its unique say we the facts of this case cannot Wedemann, a purse while as we noted judge trial that the abused discretion often repeat can his crime and snatcher admitting prior the bad act evidence.* immediately, who almost an arsonist burns ERRED WHETHER THE TRIAL COURT frequency property own must limit the A IN TO JURY IN REFUSING GIVE Wedemann, at of his fires. REQUESTED BY STRUCTION CHRISTO- Similarly, Christopher- nature of 115. the PHERSON. son’s bad acts and the manner which the court Christopherson asked trial required his sexual operated, misadven paragraph jury to a to the instruction add spread out over time. He had tures to be prove relating guilt to to State’s burden him, youth appealed for a that wait Christopher- beyond a reasonable doubt. boy relationship with the and his develop a paragraph read: son v/anted to add that relationship get parents, and use that considering the reason standard of position in a where he could force boy the the upon applied doubt consider that lesser stan- his sexual desires him. We able * Sabers, dissent, substantially outweighs of the conviction Justice in his asserts that value opinion Caylor, Caylor, conflicts State we stated in effect. As (S.D.1989), "a inadmissable, and double creates as a matter conviction is rendered prosecution for defense. standard” and law, by mere that the conviction fact old, disagree. respectfully years judge We The rules deter- over ten unless the separate admissibility for contain rules The standard is the same mines otherwise. impeachment purposes prior convictions for prosecution it or whether is the defense prior exceptions acts as under SDCL 19-12- impeach- trying to use a conviction for Caylor, simply have In this case and ment of witness. application of reviewed the trial court’s separate those 19-12-5, premised which case is on SDCL This ap- rules. We have distinct not (which need bad acts allows evidence plied differently prosecution for the rules or "motive, convictions) opportuni- be not the defense. intent, plan, knowledge, preparation, identi- ty, year Caylor attempt involved to use a 15 old an Unlike ty, of mistake or accident." or absence impeach credibility conviction ness. a wit- 19-14-12, state SDCL does not 19-12-5 SDCL impeach ofUse convictions to wit- age any specific presumed acts of that bad governed by nesses is SDCL 19-14-12 and 13. Admissibility is left to the discre- inadmissible. provides specifically SDCL 19-14-13 that "Evi- ap- performing judge after of the trial tion dence of a conviction under § 19-14-12 is not balancing notwith- test. The dissent propriate period if a than ten admissible more applies nothing opinion ...," standing, in this elapsed has since date of the conviction differently prosecution. or for defense unless the determines that 19-12-5 convincing clear and against dard of evidence is the witnesses him. follows: object questioning
defined as
did not
to this line of
at
preserve
trial and therefore did
meaning
Its technical
has been ex-
Luna,
appeal.
issue for
State
pressed as the witnesses must be
credible,
Similarly,
to be
that the facts to
found
object
prose-
did not
to the
distinctly
have testified are
which
closing argument in
cutor’s
which he
and the details thereof
dis-
remembered
order,
questioning.
cussed that line of
exactly and in due
narrated
clear,
testimony is so
direct
that their
prosecutor’s
claims the
convincing
weighty
as to en-
plain
actions constituted
error. We have
either a
or
to come to a
able
reviewed the record and are not convinced
hesitancy,
clear conviction without
or
any “plain
justify
error” occurred to
precise
the truth of the
facts in issue.
ignoring
preserve
the failure to
the issue
court refused to add that lan-
appeal.
guage
gave
and instead
the standard crimi- WHETHER THE TRIAL
ERRED
COURT
pattern jury
nal
instruction on reasonable
IN DENYING CHRISTOPHERSON’S MO-
judge concluded that the
doubt. The trial
A
TION FOR PSYCHIATRIC EXAMINA-
quoted language to
addition of the above
TION OF D.D.
potentially
confuse
instruction would
simultaneously
jurors.
separate pretrial
filed nine
motions. In one
.consistently
have
held that
We
pretrial
requested
motion he
an order di
where,
instructions are sufficient
as a
recting
undergo
psychiatric
D.D. to
ex
whole,
See,
they correctly state the law.
amination. At the same time he filed a
Martin,
e.g.,
Christopherson
juvenile
has not contended that
record was
on use of
jury
the
instruction
the record in cross-examination of D.D.
“reasonable doubt”
given by
judge
only felony
The trial court noted that
con
the
was erroneous as to the
simply argues
judge
purpose.
law. He
that
the
victions could be used for that
jury
agreed
the
the
Christopherson’s
should have told
about
clear
counsel
but also
convincing
argued
necessary
evidence standard. This
information was
for
the
was a criminal case and the reasonable showing
justi
to make a
to
applied. Christopherson
psychiatric
doubt standard
fy his motion for a
examination
important
why
has not shown
it was
for
Christopherson’s
of D.D. State resisted
jury
the clear and
the
to understand
con-
“fishing
efforts and described them as a
vincing
standard. The trial court
expedition.”
previously
The trial court had
explanation
correctly concluded that an
of
juvenile
reviewed D.D.’s
record and so de
convincing
the clear and
evidence standard
the motion to examine it. The trial
nied
might
unnecessary
confuse the
specifically
court
stated that after its re
jury
apply.
about which standard to
The
juvenile
the
record: “The court
view of
refusing
give
trial court did not err in
any
find that
there is
relevant
does not
by
requested
Christopher-
the instruction
gleaned.”
that could
information
be
son.
appeal, Christopherson asserts that
On
THE
WHETHER
PROSECUTOR PUR-
denying
in
him an
the trial court erred
QUES-
AN
LINE
SUED
IMPROPER
OF
juvenile
opportunity to review D.D.’s
TIONING AND ARGUMENT.
argues
tri-
that the
record.
in
have held an
camera
charges
al court should
juvenile record as set
prosecutor
improperly questioned him
of the
examination
Ritchie,
Pennsylvania
480 U.S.
about
truthfulness of
of
forth in
(1987).
Werner,
305 decades, nearly two it be- the course of all uncharged evidence of of the other acts created an his life. op- that he also comes obvious
portunity advantage young to take of these A man should not be convicted because males, them, using man’; or, isolating posi- he is a previously ‘bad teacher, given acted as a ‘bad man’ in implement his factual tion as a secre- for, situation if convictions were secured tive intentions. There is a remarkable con- fashion, in such principle that a man sistency activities and may punished only be for those acts with operation approximately mode two charged, which he was would be violated. thought decades. last One remote- Eagle, State v. 377 ness issue: 147- did not commit Chief (S.D.1985) (Henderson, J., 8 dissenting). eye public crimes to the obvious or to the Perkins, (Sa- See also 41 N.W.2d at plan or to law enforcement. His entire bers, dissenting); Wedemann, J. strategy detection, prevent was to to force (Henderson, N.W.2d at 116-117 J. dissent- upon young himself these males in clandes- ing). encounters, tine inall an effort to secrete Oh, offer, For the attorney his misdeeds. state’s is not the universal the trial court to admit and majority mother of to affirm law—the truth? And was it not defendant’s conviction based on most of the uncovered here? exceptions in SDCL 19-12-5 is error. To Judge Tucker did not abuse his discretion prior admit of these bad acts permitting placed evidence to be pretext based on showing “motive, before the so it could ferret out the opportunity, intent, preparation plan” [and] Sieler, truth. State v. simply denies fair In reality, trials. none 1986) Rose, exceptions of these were material to the issue in this case. Defendant’s defense simply that he did not commit the acts charged. Motive was not a material issue. SABERS, (dissenting). Justice fact, case, in this sex molestation motive danger prejudice The of unfair so sub- obvious, not material. No material issue stantially outweighs value of “opportunity, preparation existed as to prior these bad acts that the defendant was plan” either. The same is true of [and] guaranteed denied the fair trial by the Champagne intent. See N.W.2d at United States and South Dakota Constitu- (Sabers, J., dissenting). 845-846 The ex- Attempting impact tions. to assess the ceptions continue to swallow the rule. Id. these bad acts on the is like could, Legislature The South Dakota speculating damage on the might a bull do limits, within constitutional make all shop. in a china bad acts testi- bad acts admissible in sex molestation mony painted in this case defendant simply by enacting cases. It could do so *8 aas bad man but also as an evil law which states that all such evidence is conniving juror man. Once a has heard regard relevancy, without admissible testimony, such any defendant loses However, materiality prejudice. until receiving chance of a fair trial. “[TJhere so, legislature does we should enforce way no that a criminal defendant can have prosecutor require the law and a fair trial after this kind of evidence is relevancy, materiality preju- and that the Larson, admitted.” J. South Dakota Evi- dicial effect of such evidence does not sub- 404.2[1], (1991) p. (citing dence other § stantially outweigh value. Id. authorities). Additionally, majority’s ruling com A defendant should be tried on the pletely evi- to account for the ten fails relevant charged, dence of the crime not on year time limit SDCL 19-14-13.* As * (609(b)) part: SDCL 19-14-13 states in tion or of the release of the witness from the conviction, imposed for confinement Evidence of a conviction under § 19-14-12 date, is the later unless the whichever period is not admissible if a of more than ten determines, justice, years elapsed in the interests of that the has since the date of the convic- opinion, these un- majority in the
indicated 11 and Dakota, acts occurred Plaintiff charged prior bad STATE South trial. time of this prior to the Appellee, 7 to effect, creates double admission In their law. Dakota criminal in South standard state, rule for the another rule for the One HOLLOWAY, Defendant D. Michael Caylor, 434 N.W.2d defense. Appellant. held under (S.D.1989), this court 17169. No. year a “15 old convic- 19-14-13 a mat- inadmissible as stale and tion [was] Dakota. Supreme Court of South im- used to could not be of law” and ter Here, are not we a state’s witness. peach Argued Dec. 1991. We dealing with conviction. even 11, Decided March uncharged acts which dealing defendant show that the simply tended to Therefore, these un- man.
was a bad acts were too charged prior bad prevented the defen- remote and and too receiving a fair trial. See State from dant (S.D.1986) 424, 434 Rufener, (Sabers, dissenting). J. recently in arose Florida
This same issue rape trial. Kennedy Smith in William alleged prior Although instances of three other were tried in acts with victims bad excluded press, Here, our not in Dakota. trial. But South admission of and almost automatic liberal point focal acts makes them the prior bad is nowhere to be of the trial. Justice found. fair fail to send this case back for a
If we attempting trial, futility expense personnel “prior Judicial to educate through our “Judicial Conference” acts” improperly joke. The State was will be a good.” put the permitted to “bad before for a fair If fail to send this case back trial, prosecutors is clear— message our forever, open keep wink-
open stays season ing at the rules. a fair reverse and remand for
We should trial. *9 J.,
AMUNDSON, joins dissent. tially outweighs supported effect[.] probative value of the conviction by specific and circumstances substan- facts