*1 Dakota, Plaintiff STATE Appellee, KOEPSELL, Defendant Appellant. 17948.
No. of South Dakota. April Briefs 1993.
Considered on Nov. 1993.
Decided
Rehearing Dec. Denied *2 Miller, Falls,
Steve Sioux Dennis C. Nicholson, McFarland of McFarland Falls, appellant. Sioux for defendant and WUEST, Justice. Koepsell (Koepsell) ap-
Defendant LaJean peals her conviction on one count of sexual rape contact and two counts of of her six- year-old granddaughter and one count оf sex- four-year-old grandson. ual contact with her affirm. We
FACTS Koepsell forty-nine-year-old is the natural grandmother mother of V.N. and to V.N.’s children, daughter L.N. son Z.N. bath, January, giving while Z.N. a penis noticed his was discolored and bruised. mother, questioned by When his the little boy responded “grandpa” had done it. “Grandpa” Gary Koepsell, Koepsell’s hus- twenty years, stepfather band of to V.N. and steр-grandfather to L.N. and Z.N. Investigation grand jury led to indictments Gary Koepsell of both LaJean and for sexual rape contact with L.N. and Z.N. and the Gary Koepsell pleaded guilty to sexual appeal. contact and is not involved in this compe- The trial court found the children tent and both testified at trial. L.N. testified Koepsell fingers had inserted her tongue vagina her inside L.N.’s more thаn Koepsell once. She stated that “stood over privates my me with her mouth.” L.N. Koepsell how on related one occasion had genitals against rubbed her L.N.’s. L.N. you testified that “If threatened tell, you I’ll again.” touch Z.N. testified that mouth, put tongue in had his penis tongue touched his with her and fin- gers, put penis his her mouth and had genitals instructed him to touch her with his fingers. Koep- Both children testified thе sells had directed L.N. and Z.N. to touch one another while watched. The children Grandpa related how either or Grandma photographs would take or videos while the touching other was L.N. or Z.N. Barnett, Gen., Atty. Mark Joan Boos Schueller, Gen., Pierre, Atty. plain- Asst. Koepsell guilty found LaJean appellee. tiff and rape two counts of and one count of sexual rape by pro- 1. In SDCL Rape penetration 22-22-1 defined is an act of sexual accom- viding, part: plished any person under of the fol- (S.D.1992); Bachman, of sexual L.N. and one count contact2 with Koepsell appeals, stating N.W.2d at contact with issues, will both
two issues. We address test fundamental for the admission of necessary. adding where facts expert testimony is it will whether assist *3 resolving in the fаctual issues ANALYSIS before it.... AL- I. THE EXPERT TESTIMONY cultures, prohibited ‘Incest is in all almost BY THE LOWED TRIAL COURT experience and the common DID GO TO THE CREDIBILI- NOT adequate represent a less than foun- TY THE CHILDREN. OF assessing dation for young complains of child who sexual introduce hear The State moved to abuse.’ by and Z.N. say statements made L.N. (McGuire),
Becky
the South Dakota
McGuire
Svihl,
273.
Department
investigator,
of Social Services
Koеpsell claims both
and Pilk-
McGuire’s
Cynthia Pilkington
Dr.
psychologist
to child
ington’s testimony indirectly
bolstered
(Pilkington) and to V.N.3 The trial court
of
of
and Z.N.
of
determined that sufficient indicia
reliabili
expressed
Pilkington
Neither
nor
a
McGuire
hearsay
ty existed and allowed the
testimo
opinion
direct
as to whether the children
in child
ny. Expert
is allowed
sex
telling
were
the truth.
abuse
to assist
understand
cases
McGuire stated that
the children
dis-
normally
lie
ing
would not with
matters that
interview,
closed all the details
the first
it
layman’s knowledge.
in a
might
children
have indicated the
(S.D.1992);
Bach-
opinion
coached.
that neither L.N.
man,
Her
was
appeared
nor Z.N.
have been coached.
concerning
trial court has broad discretion
paused
long-
McGuire testified that L.N.
a
qualifications
expеrt'and
of an
admission
answering
concerning
question
time
a
expert testimony;
before
will not be reversed
of
was
showing
sexual
and that such a trait
com-
appeal
a
that
abuse
without
clear
of child sexual abuse.
its
481 mon for victims
abused
discretion. State
age
under
of
lowing
statement
a child
circumstances:
any
describing
ten
act of sexual contact or
(4)
years
rаpe performed with
the child
anoth-
victim is
than ten
of
or on
Where the
less
er,
age[J
by statute or court
not otherwise admissible
22-22-2,
part:
provided in
rule,
SDCL
pro-
in criminal
admissible
act,
penetration
an
however
Sexual
means
any pro-
ceedings against
or in
the defendant
intercourse, cunnilingus,
slight, of sexual
fella-
chapter
of
ceeding
26-8 in
courts
under
tio,
intercourse,
intrusiоn,
any
however
anal
this state if:
slight,
any part
body
object
or of
of
finds,
(1)
hearing
conducted out-
The court
genital
openings
into the
and anal
of another
time,
jury,
presence of
side the
person’s body.
foregoing
All of the
acts of
the statement
circumstances of
content and
intercourse,
penetration, except
sexual
sexual
reliability;
provide
sufficiеnt indicia of
sodomy.
are also defined
(2) The child either:
only
Dr.
Olson testified
scarred rem-
Jennifer
(a)
proceedings; or
at the
Testifies
indicating
hymen
nants of
remained thus
L.N.’s
(b)
as a witness.
-Is unavailable
vaginal penetration
place.
had taken
unavailable as
if
child is
provides:
2. SDCL 22-22-7
witness,
may be admitted
statement
such
older,
Any
years
age
person,
sixteen
of
of the act.
corroborative evidence
if there is
engages
knowingly
who
in sexual contact
under this
be admitted
No statement
spouse if
person, other than his
such
another
proponent of the statement
section unless
years
person
age
under
of sixteen
other
to offer the state-
his intention
makes known
guilty
felony.
actor is less
of a Class 3
If the
it, including
particulars
ment
of
person,
years
than
older than the other
three
ad-
declarant
name
address
guilty
a Class 1 misdemeanor.
he is
sufficiently
trial
party
in advance
verse
party with a
hearing
provide
adverse
Hearsay
under
are allowed
statements
prepare meet the state-
opportunity to
fair
years" exception
"tender
of SDCL 19-16-38
provides:
ment.
1989)
Pierre,
gradual
(citing
McGuire went on
dis-
United States
St.
(8th Cir.1987))).
closure of
consistent with
F.2d
details was
traits
419-20
exhibited
victims
child sexual abuse and
Koepsell objected to
McGuire’s
gradually
that L.N. and Z.N. had
disclosed as to whether it
“uncommon”
for chil
the details of their abuse.
dren who had been
abused to take a
“long pause”
answering
question.
before
Pilkington
it would be diffi-
comparison
claims McGuire’s
six-year-old
program
cult to
a four or
child
general
L.N.’s traits with the
characteristics
signs
program-
she had seen no
displayed by
impermissibly
children
ming
coaching
in either child.
In re-
credibility of
bolstered the
the child’s testi
sponse
questioning concerning
what else
mony. Similarly, Koepsell’s objections to the
Z.N.,
was discussed at
session with
*4
pertained
Pilkington
of
to founda
Pilkington
typical
also
“It’s
stated:
after
questions concerning
general
tion
memo
there’s beén disclosure for me to have a
ry
patterns
and
of
disclosure
abused children
lies,
discussion about truth and
which I did.”
questions
displayed
and
as to whether L.N.
Pilkington
give
did
her opinion
not
as to
a sexually
of
characteristics
abused child.
pursue
Z.N.’s
Pilking-
nor did State
expert
testimony comparing specific and
response.4 Pilkington
ton’s
testified that it
general
of
characteristics
abused
would
description
concern her if a child’s
of
goes
children
than
no further
we
story, given
abuse was the same
over and
properly
have determined was
admitted
over without deviation. She then stated L.N.
Svihl,
previous
272;
cases.
490 N.W.2d at
Z.N.
yielded
and
their information in bits
Btdler,
883,
(S.D.
State v.
N.W.2d
484
889
pieces.
—
1992),
denied,
U.S.-,
cert.
113 S.Ct.
repeatedly expressed
This court has
248,
(1992);
121
Floody,
L.Ed.2d 181
481
concern
as to the trial
“cases of this nature
249;
Spaans,
N.W.2d at
455 N.W.2d
by experts” and found the admission of “ex 596,
(S.D.1990).
fact,
599
In
exactly
this is
pert testimony
be
has to
resolved on a case-
comparison testimony
kind of
Svihl,
by-case
273-74;
basis.”
490 N.W.2d at
helpful
jury
knowledge
to a
with no
of child
see also
595
The trial court’s limitation of
States Constitu
to the United
Amendment
VI, §
7
the South
cross-examination of V.N. con
article
tion
“[EJxposure of a wit
cerning
of a civil
Dakota Constitution.
suit
testifying
proper
is a
Koepsells
motivation in
ness’
L.N. and
was error.
constitutionally
important
function
Confrontation Clause errors are
right
Dela
of cross-examination.”
protected
analysis.
subject to harmless error
Van Ars
678-79,
Arsdall,
673,
475 U.S.
ware v. Van
dall,
at
at
106 S.Ct.
89
89 L.Ed.2d
683
686;
106 S.Ct.
951;
Crump,
L.Ed.2d at
934
at
F.2d
(1986);
Bogenreif,
N.W.2d
Bogenreif, 465
at 782-83.
N.W.2d
The Unit
(S.D.1991). Nonetheless, the trial court
has articulated the
ed States
concerning the limi
retains broad discretion
analysis used to
whether the error
determine
it will be
of cross-examination and
tation
was harmless:
is a
when there
clear abuse
reversed
whether,
inquiry
assuming
The correct
showing
prejudice
discretion and
damaging potential
of the cross-
Crump,
States
the defendant. United
rеalized,
fully
examination were
a review-
(8th Cir.1991);
Bogenreif,
F.2d
might
say
ing court
nonetheless
Honomichl,
783;
beyond a
error was harmless
reasonable
The burden
*5
an error is
doubt. Whether such
harmless
a
defendant to show reasonable
on the
depends upon
case
a host of
significantly
a
different
probably would have
factors,
readily
reviewing
all
to
accessible
appropriate
if
cross-
impression
otherwise
impor-
courts. These factors include the
Ars
permitted. Van
examination had been
pros-
tance of the witness’
the
dall,
1436,
the lie
in
...
happened, happened.”
detector
the courtroom
what
said
the kids
now suggested
psychiatrists
psy- Thereby,
prosecutor
that
and
violated the deci-
chologists
more
[expertise weigh-
by аdvocating
have
sions of
Court
this
*
(S.D. 1992);
Solem,
McCafferty
State V.
tion on preme change Rule on ultimate issue counsel appellate (1993), and testimony, SDCL 19-15-4 see court when the trial abso- rights were denied therefore, majority opinion violates the chil- lutely refused cross-examination Burtzlaff, 493 applicable See law. mother, My authori- supporting dren’s (S.D.1992) (Wuest, J., concur Volk, 67, 71-72 ty is: State v. (“The dissenting part) ring part (S.D.1983) Brandenburg, prevents a from rule’ witness ‘ultimate issue These two expressing opinion an on ultimate one ruling to fore- condemn a trial court’s cases by the trier of fact. issues to be decided impeaching a witness from close defendant rule ultimate Dakota retains the issue prejudice. As an exam- bias and to establish Doctrine’) (as and does the ‘Ultimate Fact harassing phone (allegedly) ple, V.N. made an permit expert express an witness Koepsell. Questions bearing to LaJean calls issue, holding it opinion upon the ultimate sue V.N.’s intentions (Citations jury.” usurps province of thе would not the trial court propounded omitted.)) early apply simply It is too Later, developed motion permit them. to this case. new rule indeed, had, trial, sued new that V.N. children, for dam- Koepsell, on behalf *7 County
ages. The file was McCook judicial it. notice of This trial court took inquiry to the truth legitimate get
was all allegations of V.N. presented to the
Koepsell,
but was
motivations
it to
the reasons and
consider
prоper impeachment.
It’s
OF
ESTATE
Claude
In the Matter
harmless error as
was not
exclusion
PERKINS, Deceased.
S.
for,
Volk,
indeed, in
331 N.W.2d at
argues;
No. 18188.
we honored United States
Alaska,
in Davis
U.S.
Court decision
of South Dakota.
Supreme Court
(1974),
1105,
I dissent have II should been
Issue because .V.N., a hostile
permitted to cross-examine regard- Koepsell, toas
and adverse witness