[¶ 1.] Defendant was indicted on multiple rape and sexual contact offenses against his daughter. Fourteen years earlier, when he was seventeen, defendant committed a sexual offense with his thirteen-year-old stepsister. At trial on the current charges, the circuit court allowed the prosecution to present the prior conviction to the jury with all its details. Because defendant’s prior offense was too remote in time and not sufficiently similar to the present charges, admission of the prior offense was an abuse of discretion and unfairly prejudicial. We reverse and remand for a new trial.
Background
[¶ 2.] Ernest Albert Fisher, Jr. (defendant) and his wife lived in Aurora County, South Dakota, with their blended family of eight children and stepchildren. On September 13, 2007, I.F., defendant’s daughter, posted an entry on an Internet blog site:
my dad sexually abuses me and I don’t want to lose my step mom she is my only mother i have what should i do? he has been doing this since i was 8 i hate him he has hit me twice help me!!!!!!!!!
I.F. was thirteen years old at the time, and defendant was thirty-one. This was not the first time she had sought refuge from her father. Once, at her request, she was sent to her biological mother’s home, but it did not work out. On another occasion, she reported to authorities that her father
[¶ 3.] When I.F.’s sexual abuse allegation was eventually reported to the authorities, Aurora County Sheriff David Fink and a Department of Social Services case worker went to defendant’s home and spoke to I.F. I.F. told Sheriff Fink and the case worker of numerous instances of sexual attacks at the hands of her father. Defendant’s home was searched, resulting in the seizure of several pornographic videos. I.F. was later interviewed by Child’s Voice in Sioux Falls. She reported that defendant’s sexual abuse had been going on for several years. The other seven children in the home were also interviewed by Child’s Voice; each child denied any sexual abuse by defendant. Defendant was indicted on one count of first degree rape in violation of SDCL 22-22-1(1), five counts of third degree rape in violation of SDCL 22-22-1(5), and two counts of sexual contact with a child under the age of sixteen in violation of SDCL 22-22-7.
[¶ 4.] Before trial, the State filed a notice of intent to offer res gestae evidence, or in the alternative, other acts evidence. This consisted of all the uncharged sexual acts that I.F. said defendant committed against her in the previous five years. The State contended that this evidence was part of the res gestae because it arose out of the same series of transactions as the charged offenses. The court agreed and allowed the testimony.
[¶ 5.] The State further sought to offer defendant’s 1994 conviction for sexual contact with a child. In December 1993, when defendant was seventeen, he had sexual contact with his thirteen-year-old stepsister. The State argued that the evidence of the prior conviction was relevant to show intent, motive, common scheme or plan, and identity. The court agreed, rejecting the argument that the prior conviction was too remote in time, and finding that the current charges against defendant and the prior conviction involved similar victims and similar acts. As to the specter of unfair prejudice, the court ruled that use of a limiting instruction would sufficiently protect defendant. Moreover, the court found “that there is no other evidence of equal probative value that can be introduced to prove the charges contained in the indictment.”
[¶6.] Defendant sought to offer testimony on what defense counsel termed “third party perpetrator” evidence. If allowed, J.F., defendant’s fifteen-year-old son, would be called to testify that it was he who had sexual contact with I.F., and not his father. In an interview with the sheriff, J.F. opined that someone in the house would have heard or seen his father and I.F. engaging in sexual relations if it had actually happened. Thus, he refused to acknowledge even the possibility that defendant might have committed the charged sex offenses. J.F. told the sheriff of his own sexual abuse by his biological mother and others. Then he claimed to have had sexual contact in various forms with all the children in the house, except the youngest. With respect to I.F., he first told the sheriff that he had sexual intercourse with her two or three times, describing details and locations. But by the end of the interview, although he persisted in saying that he molested the other children, he recanted his claim about I.F., saying that .he never had sexual intercourse with her. When asked why he would falsely say he had sexual intercourse with his sister, J.F. said it was “because I don’t want my Dad in trouble.... ”
[¶ 7.] In denying admission of J.F.’s testimony, the circuit court ruled that “the probative value of J.F.’s [evidence] is
[¶ 8.] At trial, I.F. was shown several DVD covers found in the search of defendant’s home and identified a particular DVD as the one defendant made her watch. After she identified it and described a pornographic scene from the DVD that defendant had her view, Sheriff David Fink, who viewed the DVD, confirmed that such scene was on the DVD. The cover of the DVD was admitted to coiToborate her testimony, but the DVD was not played for the jury. The title on the cover was “Fresh Teen Ass.”
[¶ 9.] I.F. testified that over a period of five years, once or twice a week, defendant forced sexual relations on her, which included fellatio and sexual intercourse, with penetration of both her vagina and her anus; also foreign objects were used, such as a dildo, a bathroom plunger handle, a hairspray container, and a conditioner bottle. Medical testimony to substantiate this abuse came from two physicians. First to testify was Dr. Nancy Free, a pediatrician, who emphasized that greater than ninety percent of children who have been sexually abused have normal genital exams. With respect to I.F., Dr. Free noted that she had areas of scar tissue on her genitalia and that her hymen had “changes consistent with chronic penetration.” I.F.’s anal exam revealed no evidence of injury. Dr. Free concluded that I.F. “was a victim of probable child sexual abuse.” Dr. Keith A. Hansen, an obstetrician and gynecologist, found evidence of “previous hymenal trauma, not acute.”
[¶ 10.] Testifying for the defense was Dr. Rich Kaplan, a pediatrician. He is the Medical Director and an Associate Professor in a program at the University of Minnesota called the Center for Safe and Healthy Children, specializing in evaluating children who have been abused. As the founder of Child’s Voice in Sioux Falls, Dr. Kaplan spent seven years there examining and treating physically and sexually abused children. Dr. Kaplan took issue with Dr. Free’s conclusion that there was evidence of scarring on I.F.’s genitalia. From his viewing of the video taken in Dr. Free’s exam, Dr. Kaplan “found nothing that was abnormal.” I.F., in Dr. Kaplan’s opinion, showed “no signs of recent or remote trauma” evident in the material he reviewed. Moreover, he questioned Dr. Free’s statement that although scarring was not visible, she could feel it by the change in skin texture. He said there is “no medical data to support the feeling of that tissue relates to trauma.” He also contradicted her conclusion about I.F.’s hymen. It was his conclusion that I.F. showed a “completely normal exam.” Dr. Kaplan agreed, however, that sexually abused children may have no evidence of genital trauma.
[¶ 11.] Defendant testified at trial. He offered neither accident nor lack of intent as a defense. He denied entirely the sexual acts I.F. alleged. On September 19, 2008, after a four-day trial, the jury found him guilty on all charges. He was sentenced to sixty years in the penitentiary, with five suspended, for the first degree rape conviction; fifteen years, with five suspended, for three of the third degree rape convictions; and twenty-five years with five suspended for the two remaining third degree rape convictions and the two sexual contact with a child convic
Analysis and Decision A. Third Party Perpetrator Evidence
[¶ 12.] Defendant contends that J.F.’s claim of sexual relations with his siblings and step-siblings was improperly excluded. He argues that the evidence would have offered an alternative explanation to the jury for the medical experts’ findings. J.F. is defendant’s minor son, who lived with defendant and I.F. in defendant’s home. In his interview with the sheriff, J.F. claimed and then denied having had sexual intercourse with I.F. He also claimed to have had sexual contact with all the other children in the home, except the youngest. None of the other children corroborated J.F.’s purported confession. He professed his belief in his father’s innocence and insisted that I.F. was fabricating the abuse.
[¶ 13.] The court found the interview of J.F. to be relevant. It then engaged in a balancing test to examine whether the probative value of the evidence outweighed its possible prejudicial effect. The court considered that J.F. recanted part of his claims during the interview. The court also considered that J.F. is defendant’s son who insisted on his father’s innocence. J.F. claimed that I.F. was lying because she did not want to live in the house any longer. J.F. refused to recognize that his father could be guilty of the charges against him. In light of J.F.’s motivation to lie, his partial recantation, and the fact that J.F.’s testimony about other children in the home would mislead and confuse the issues, the court excluded the evidence.
[¶ 14.] We recently examined a court’s exclusion of third party perpetrator evidence in
State v. Packed,
[¶ 15.] In
Packed,
the balancing test was not conducted.
Id.
¶ 24. In this case, the court performed the requisite balancing test and found that the probative value of the evidence was substantially outweighed by the risk that that evidence would have an undue tendency to move the jury to decide the case on an improper basis. We review these types of rulings under the abuse of discretion standard.
Id.
¶ 17. Although “Rule 403 will not permit judges to exclude testimony in plain disbelief,” here there was more than credibility in question.
See State v. Wright,
B. Uncharged Sexual Acts with the Same Victim — Res Gestae
[¶ 16.] Defendant next asserts that the court abused its discretion when it allowed I.F. to testify about defendant’s uncharged sexual contact with her that occurred in the five years preceding the charged offenses. All the charged offenses were alleged to have occurred in 2006 and 2007, but the State wanted to place before the jury all defendant’s alleged sexual abuse from the time I.F. was eight years old. The court ruled that this testimony would be admissible as res ges-tae evidence. Defendant argues that the court erred in concluding that the testimony was res gestae evidence rather than “other act” evidence under SDCL 19-12-5 (Rule 404(b)). Defendant also contends that even if the evidence was other act evidence, it was an abuse of discretion to admit the testimony. “We review a trial court’s decision to admit other acts evidence under the abuse of discretion standard.”
Wright,
[¶ 17.] In
State v. Floody,
we examined a trial court’s admission of evidence related to uncharged instances of sexual penetration and sexual contact in a child sex abuse case.
[¶ 18.] The circuit court relied on Floody and concluded that the testimony about the uncharged sexual abuse perpetrated by defendant on I.F. in the previous five years in various counties other than Aurora did not constitute other act evidence. The court considered the testimony to be directly and intrinsically related to the crimes charged, and therefore, admissible as res gestae evidence.
[¶ 20.] Other act evidence is admissible to prove such matters as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” SDCL 19-12-5 (Rule 404(b)). Also in
Floody,
we examined the admission of testimony related to non-contemporaneous uncharged sexual contact.
[¶21.] Here, as in
Floody,
the testimony of the uncharged sexual contact with I.F. was not contemporaneous to the charged acts. The testimony related to conduct in three other counties and covered a five-year time span. This other act evidence, however, was probative in showing an uninterrupted chain or series of closely connected events between defendant and I.F., allowing the jury to realistically evaluate the charged events in light of the entire history of alleged sexual abuse committed against I.F.
See
Edward J. Imwinkelried, 1 Uncharged Misconduct Evidence § 6:29 (Rev. ed. 1998). To exclude this history would truncate the child’s narrative and deprive the testimony of its “full evidentiary context.”
Old Chief,
C. Prior Conviction — Relevance and Remoteness
[¶ 22.] We must next decide whether the circuit court abused its discretion when it admitted evidence of defendant’s fourteen-year-old conviction for sexual contact with a child. Defendant was a juvenile when he committed this offense and the victim was his thirteen-year-old stepsister. They did not live in the same home. He pleaded guilty to the charge, admitting to touching her bare breasts and digitally
[¶ 23.] Under our rules, evidence of a defendant’s other acts admitted only to show propensity is irrelevant and thus inadmissible.
Wright,
[¶ 24.] Prior bad act evidence is not admissible simply because it shows conduct similar to the charged offense. The question is whether the prior bad act relates to a point genuinely in issue.
3
In
Wright,
we cautioned courts to independently apply each theory of admission to the facts of the case.
[¶ 25.] In evaluating the admissibility of the evidence under SDCL 19-12-5 (Rule 404(b)), the court found that the
[¶ 26.] At the outset, we note that at least one of the court’s reasons for declaring this prior offense relevant was wrong. Identity was never an issue in this case. I.F. unequivocally identified her father as the continuing perpetrator. No suggestion arose at trial on some possible misidentifieation. In most instances, admitting evidence of other crimes for the purpose of proving identity should occur when the question of identity is genuinely in issue.
See State v. Goodrich,
[¶ 27.] Furthermore, a defendant’s purported disposition toward sexual misconduct is not enough to prove identity.
United States v. Fawbush,
[¶ 28.] Assuming without deciding that this prior conviction was relevant for some other purpose allowable under SDCL 19-12-5 (Rule 404(b)), admission must still be weighed with the question of remoteness. Our rule on this subject is not rigid: it will depend on the facts of the case.
Wright,
[¶ 29.] In this case, the prior offense was not strikingly similar. Defendant was only four years older than his victim at that time. As to the current charges, defendant was thirty-one, and I.F. testified that the sexual contact began when she was eight and ended when she was thirteen. Also, while it was asserted that both victims were family members, defendant was related to his prior victim only by marriage. She was his stepsister and did not live in the same home. I.F., on the other hand, is defendant’s daughter and lived in the home with him. The lack of similarities between the current charges and the prior conviction and the remote
[¶ 30.] On the remoteness question, furthermore, one aspect the circuit court appears to have overlooked in its § 404(b) analysis is the fact that defendant was himself a juvenile when he committed the prior offense. A vital point, because, as the United States Supreme Court recently observed, “As compared to adults, juveniles have a ‘lack of maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters are ‘not as well formed.’ ”
Graham v. Florida,
— U.S.-,
[¶ 31.] We conclude that it was an abuse of discretion for the circuit court to admit the prior conviction: it was too remote in time and too dissimilar to be deemed relevant. Moreover, we cannot classify this error as harmless.
See State v. Stanga,
[¶ 32.] Reversed and remanded.
Notes
. As the State points out in its appellate brief, the written judgment of conviction does not conform to the circuit court's oral sentence. The oral sentence controls over the written judgment.
. On our standards of review applicable to these issues, we recognize that in reviewing difficult evidentiary rulings we must evaluate a circuit court’s decisions "from its perspective when it had to rule and not indulge in review by hindsight.”
Old Chief v. United States,
.
See State v. Harris,
Before an issue can be said to be raised, which would permit the introduction of evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words.... The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defenses in order to rebut them at the outset with some damning piece of prejudice.