*1 prepared by laymen The minutes
smаll cities and school districts often lack legal compared pre- niceties those Nonetheless,
pared by legal experts. compliance
minutes were in substantial statutes,
with the 9-14-1 and 9-14- provide
3.Those minutes did not for the
position policeman. of a second That was
accomplished appropriation when the ordi- adopted.
nance was Dakota,
STATE of South Plaintiff Appellee, LOGUE,
Steven Defendant Appellant.
No. 14729.
Supreme Court of South Dakota.
Argued April 1985. July
Decided 1985. *2 Pierre, Gen., Geaghan, Atty. Peggy Frank Asst. she told Anderson she did not plaintiff appellee; for Mark V. Meier- anyone want else in the house while she Gen., henry, Pierre, Atty. on brief. away. Further, she testified that she left for work at 5:45 a.m. and returned Neiles, Zimmer, Richter, Joseph Dun- p.m. about 3:15 When she came home that Neiles, Parker, can & defendant day, she sat down to talk with Ms. Ander- appellant. *3 son and asked her how the children were WUEST, Acting Justice. doing. She asked where her son was and Ms. Anderson stated he lying that was on This is an appeal judgment from a and playing. the bed The mother testified that rape conviction of two counts of one and thought might she something count be wrong of sexual contact with a child. her “hyper” reverse and remand for a new because son was play trial. too on diagnosed the bed. He had been as being 2,May County On a Minnehaha hyperactive and took medication for that Jury (appel- Grand Logue indicted Steven malady. lant) rape, on in first-degree two counts 22-22-1(4), violation of SDCL and one mother The further testified that both count of sexual contact with a child under she and Ms. Anderson moved toward the fifteen, in Ap- violation of SDCL 22-22-7. home, rear her mobile where the bed- pellant arrаigned plea was and entered a did, they rooms located. appellant As are guilty, whereupon hearings motion Logue emerged Steven from the mother’s were preparation held in for a trial in At point, bedroom. that Ms. Anderson County. grant- Minnehaha The trial court that commented the child must hiding, appellant’s ed for an motion examination appellant and stated that child was in hearing and to determine the competency the bathroom. Ms. Anderson went to the alleged witness, victim as a was who stating and bathroom returned that he was years court, then four old. The there. The mother to check went on him did not appellant allow havе the child and him in the standing by found corner by appellant’s examined with on. pants Apparently, the closet choice. this bathroom was the same located bed- competency At the hearing the child was appellant emerged room that from. She questioned prosecutor by appel- and normally that her stated son did not take Trudy lant’s The attorney. State called go pants entirely off to to the bath- Schroeder, a worker South social with the room, appear that they did not wet Services, Department Dakota of Social con- put them when he back on. child, cerning she had contacts with the appellant Ms. Andersоn that testified did trip which included interviews two and a at the until not arrive trailer about 3:30 that, restaurant. a The trial court ruled that had afternoon the mother told her inasmuch young boy as the knew dif- only that mother’s sister-in-law and bill truth, lying telling ference between collectors were not allowed house. competent testify he was and his credi- She the fact the mother denied that said bility was a to be matter determined appellant’s presence anything about in the jury. appellant home. She also claimed that The trial court denied a motion to make young boy in the were never bedroom certain, the indictment more definite and at the same time. Ms. Anderson stated trial, dismiss. At the State’s witness first talking telephone was when she on the alleged was the testi- victim’s mother. She appellant came home and was mother that, neighbor lady fied while her bathroom, the front child while babysitter, April usual on she had in the rear bedroom. Peggy a woman watch named Anderson babysat gave appellant and Ms. An- her children. Ms. Anderson The mother had Hospital. her Upon once before. The mother stated derson a ride to McKennan Dr. home, jewelry her testified she checked Wheeler returning boxes, apparently suspected Ms. have there have which been could for she intervening days, in the appellant in the thеft of a four disappeared Anderson or therefore, and, missing after the last he could not rule out moles- that was necklace watched her children. Ms. Anderson tation. time ring missing.
She discovered
by the
was then called
Ms. Schroeder
on the follow-
testified that
supra,
mother
she is
social
State. As stated
complained
day
victim
ing
Department
the South Dakota
worker for
kept
constipation
crying
his bot-
has a
Services and
Bachelor
Social
she had him
stated that
Services,
tom hurt. She
Community
Degree in
Science
bathtub, yet
complained
still
soak
empha-
degree
which is a social work
him and could find
pain.
She examined
public
psychоlogy
sis
administra-
on
said
later
The mother
nothing wrong.
had
in the
tion.
testified that she
been
She
*4
playing with his
on,
child was
when the
years,
approximately
field
ten
seven
for
brother,
him ask:
she overheard
younger
in
work and three
which were
direct social
my
that in
butt?”
you going
“Are
to stick
stated
in
Ms. Schroeder
administration.
hearsay
as
objected to
This
was
statement
continuing
in
that
has had
education
she
argued
it
be
that
should
the State
but
with
interviewing techniques
the
areas
exception
utterance
as an excited
allowed
abuse,
children,
working with
sexual
and
and the court
against hearsay
the
to
rule
At the
of the
offenders and victims.
time
overruling
objection.
the
agreed,
trial,
working in the area of child
she was
investigating
protection, which involves
The
further
testified that she
mother
neglect.
and
She testified
child abuse
anyone
any-
had stuck
asked him whether
to
she
prior
the seven months
the trial
posterior
where he had
thing in his
and
Fur-
forty-seven
had
children.
interviewed
said
he
heard
a statement. She
such
ther,
appellant’s objection, she testi-
asking
over
by
“naughty,”
if it was
answered
in about
of the cases of
fied that
one-third
younger
“put
his
brother
and claimed that
abuse,
were,
opin-
the
in her
sexual
claims
He then said
paper
toilet
butt.”
[his]
ion,
She then testified
somebody
At
unsubstantiated.
it
have been
else.
could
techniques
their
interviewing
her
objected
about
point, appellant’s counsel
this
purposes.
continuing
requested
objection
again, and
hearsay. The
testimony
mother
to
con-
about her
Ms. Schroeder testified
Peg-
then claimed that the child said that
alleged
victim. She stated
tacts with
it.
gy’s boyfriend did
that her first interview with
victim
in-
and the second
following day,
general
child had a
information
On the
more
get
was used to
details
and the mother testified
terview
bowel movement
concerning
his
little
of stool and “a
elicit information
that he had a
bit
matters,
attempt
deter-
in an
to
stuff come out
the toi-
sexual
bunch white
doctor,
knowledge.
of that
She
ad- mine the source
let.”
then called her
who
She
with
boy
was then asked what she concluded
young
take
to the
vised her to
regard
knowl-
the source of the victim’s
hospital
He was taken to
to
to be examined.
edge
Appellant object-
in the
of sexual matters.
Hospital and examined
McKeniian
ex-
hearsay.
jury
Dr.
ed
this as
emergency room Dr. Jeff Wheeler.
to
Ms.
cused,
argued
that in his examination of
Wheeler testified
her
give
allowed to
he
of Schroeder should be
victim found no evidence
boy gained the
He
find
for-
as whether
trauma.
did not
external
observation,
parents,
from
any bloody
in information
eign body or retrieve
stool
Appellant ar-
experience.
actual
He
he
from
finger
exam.
testified
stool
essentially asking for
gued that this was
and found none. Fur-
retrieved for blood
testimony
credibility of a
ther,
on the
X-ray
rectum area
he did an
objection,
foreign
The court overruled
looking
body and found none. witness.
for a
continuing
27, 1984,
objection
but allowed a
testi-
On June
returned a
guilty
verdict
mony by
concerning
Schroeder
on all
On Septem-
Ms.
conclu-
counts.
ber
court
appellant
sentenced
credibility
hearsay
sions about
state-
twenty years
in the South Dakota State
ments.
I,
Penitentiary
twenty
Count
years
on
on
Thereafter, however, Ms. Schroeder was
II,
years
Count
five
III;
on Count
all
testify concerning
allowed to
what thе al-
sentences
run consecutively. Appellant
leged
told
victim
her about the incident in
appeals.
question. She was then asked:
Appellant contends that since the
Q.
ques-
Based on his
to those
answers
language
identical,
I
of Counts and II is
tions,
your
what were
conclusions as to
court
denying
erred
his motion to make
acquired
where he had
his sexual
more
and certain
definite
or to dismiss.
knowledge?
disagree.
In resolving
argument,
this
knowledge,
A.
I
particular
That
believe
the test
sufficiency
for the
of an indictment
gained, through
experience
designated
whether it is
in such a man
Steve.
ner
person
as to
enable
of common under
Despite
cоntinuing objection granted by
standing
to know what was intended.
23A-6-7(5).
court,
It
appellant again objected to such
must contain the ele
ments of
charged
the offense
so as
and moved that
it
stricken.
inform
charge against
the defendant of the
request
This
was denied
trial court.
him
plead
acquittal
him to
enable
*5
and,
testified,
although
The child also
of
prosecutions
conviction in bar
future
for
oath,
placed
objection
was not
under
no
the
An
gener
same offense.
indictment is
by appellant’s
was raised
counsel.
trial
At
ally
employs
if it
language
sufficient
the
prosecutor,
the direction of the
the child
equivalent.
the statute or its
v.
State Bin
things
indicated certain
with two dolls. Af-
(S.D.1982);
gen, 326
99
N.W.2d
State v.
going through
ter
a
discussion
demon-
Lange,
(1967).
156
Jenkins,
our
imagination
and would affect
decision
State v.
260
distort
(S.D.1977),
probable credibility
complaining
of the
we held
N.W.2d 509
wherein
it
indications,
nor
There were
permit
psychologist
witness.
error to
reversible
any allegations,
appellant
make
qualified
expert
give
did
as an
witness
young
child suffered from
opinion
validity
appellant’s
as to the
we believe that the trial
such delusions and
charge
defense to a
of murder.
duress
not
discretion in
court did
abuse its
overrul- There,
“[ijnasmuch
as
we stated
motion.
v.
356
ing this
State
only
question
issue before the
was the
(S.D.1984).
159
N.W.2d
duress,
the doctor
in essence al-
opinion
appellant
express
lowed
Appellant
contends that the trial
further
guilty....
simply
That
is not
fit
reversible error in allow-
court committed
subject
expert testimony.”
for
260 N.W.2d
ing
expert
the State
elicit
at
513.1 This statement
accord with
the social worker as to where the
from
gained
rule sometimes called the Ultimate Fact
four-year-old victim
his sexual
Doctrine, which
knowledge.
agree.
contained
strictures
against allowing
opin-
express
witnesses to
outset,
acknowledge
At the
we
issues,
particular
upon
ions
ultimate
as a
court
discretion concern
the trial
has broad
aspect
against opinions.
of the rule
Wein-
ing
qualification
experts
¶
stein’s Evidence 704-1. The basis
testimony.
The trial
admission
rule, however,
prevent
from
witness
judge’s decision
to such
will not
as
matters
jury,”
“usurping
province
has
appeal
reversed on
absent
clear show
been
“empty
Wig-
criticized
rhetoric.”
ing
Flagtwet
of abuse of that discretion.
(1940).
more
Rule 704 of the Feder-
Smith,
(S.D.1985);
Mat
doctrine,
al
opposes
Rules of Evidence
this
J.L.H.,
(S.D.1982);
ter of
stating
“Testimony in the form of
that:
Lachowitzer,
(S.D.
If
special-
or other
to Federal Rule 704. SDCL 19-
knowledge
ized
will assist
trier of
15-4 states:
fact to
the evidence or to
understand
expert
may
An
witness
be asked to
issue,
quali-
in
determine
fact
witness
inferences,
opinions or
state his
whether
skill,
by knowledge,
as an expert
fied
opinions or
are based
these
inferences
on
education,
experience, training,
may
or
observation,
personal
or
witness’
on
testify
opinion
thereto in the form of an
introduced
evidence
at the trial
seen
or otherwise.
witness,
by
or
his
heard
or on
techni-
in J.L.H.,
knowledge
subject,
cal
of the
without
this
supra,
As
ruled
court
specifying hypothetically in
first
may qualify
expert
worker
as
a social
an
question
opin-
data
these
on which
Ap
on certain
under this statute.
issues
expert
inferences
An
pellant argues,
cer
ions or
are based.
there are
required,
subject
may be
on direct or
tain issues which can never be the
witness
cross-examination,
expert
Appellant
specify
the data
testimony.
relies on
on
Ed.,
(cit-
Evidence,
expressions
such
1. We cited McCormick on
2d
would exclude
extreme
26,
p.
cases).
necessity
which states:
ing
§
is no
for this
There
kind
evidence;
sug-
‘Undoubtedly
tend to
to receive it would
there is a kind of stаtement
gest
judge
may
respon-
jury
the witness
to no
which amounts
more than
that the
shift
expression
witnesses;
general
an
belief as to how
sibility
for decision to the
the case
decided or
should be
as to
wholly
it is
without value
event
unliquidated
damages
amount
which
reaching
of fact in
a decision.'
trier
given.
should be
It is believed all courts
opinions
12-3, however,
which his
or inferences are
relevant,
states: “Although
may
based.
be excluded if
probative
its
value is substantially outweighed by the
Nonetheless, an earlier
decision
this
danger
prejudice,
of unfair
confusion of the
court adheres to Rule
and is in direct
issues, or misleading
jury,
or
consid-
Jenkins,
contravention with
deсision
erations of
delay,
time,
undue
waste of
or
supra.
Spry,
In
presentation
needless
of cumulative evi-
(1973),appellant
N.W.2d 504
was convicted
Thus,
dence.”
helpful,
even
relevant evi-
manslaughter
as the result of an auto-
dence may be
if
probative
excluded
its
val-
mobile collision which claimed two victims.
ue is substantially outweighed by the dan-
trial,
At
heavily
the State relied
on the
ger
prejudice
of unfair
or of misleading the
McCue,
Clyde
highway pa-
jury.
investigated
trolman who had
the scene of
being duly qualified
accident. After
as
We note that the sexual abuse of
expert,
permitted
an
express
an
children places lay jurors at a disadvan
opinion
place
as to where
impact
had
tage, inasmuch as the
experience
common
been
the collision between the two auto-
juror may represent
of a
a less than ade
patrolman’s
mobiles. We stated that
quate
assessing
foundation for
the credibil
opinion
objectionable
‘usurp-
was not
as
ity
young
of a
complains
child who
of sexu
ing
province
jury’ merely
of the
be-
See,
al
e.g.,
abuse.
Myers,
State v.
cause it embraced an ultimate issue of
(Minn.1984).
N.W.2d 604
We share the
fact.
logical
This is the modern and
concerns of the Court in United
States
view. See 31
Expert
Am.Jur.2d
and Amaral,
(9th Cir.1973),
disagree.
issue;
believe,
tion,
the
of
We
type
the evidence as to
fact
case.
occurred,
rape
charges
the
was
the
namely, whether
these
and weak evidence
this,
we have
unduly
rely
As
means cumulative.
of
inclined to
triers
fact were
alleged
the
victim’s moth-
testimony of
the
upon
expert’s opinion
as to
ultimate
who, admittedly, suspected appellant of
er
Therefore,
ex-
we conclude
issue.
Further, expert
stealing jewelry from her.
not
pert’s
was
“harmless error”
given by
physician
a
who
testimony was
pivоtal
jury’s
in the
decision.
probably
but
alleged victim and concluded
examined
every
guilty,
every ac-
Not
accused is
but
phys-
no medical evidence
that there was
cused,
guilty,
to a
innocent or
is entitled
rape
was
days
four
after
ical trauma
fair trial.
Moreover, the
place.
taken
said to have
argues
Appellant
that the statements
only
years
age
four
while
child was
his
alleged victim made to mother concern-
competent
held
the trial court
ing
hearsay,
subject
were
assault
immaturity
testify,2
age and
the child’s
exception
utterances
under
excited
also
upon
credibility.3 We
note
reflect
19-16-6, because “the statemеnts
testified
one-
that the State’s
to mother
made at least two
made
were
she had
of the sexual abuse cases
third
days
inci-
probably
three
after the
investigated were unsubstantiated.4
dent_”
disagree.
physical
or
evi-
no medical
There was
provides
state-
SDCL 19-16-6
that “[a]
outcry when
dence of abuse. There was no
startling
relating
ment
to a
event or condi-
alleged
The child’s first
acts occurred.
tion made while the declarant
under
brother,
two-year-old
complaint named his
by the
the stress of excitement caused
Peculiarly,
is
which
incredible.
condition,
is not excluded
event
proximity
in the
acts were committed
19-16-4,
though the declarant
is
even
III,
friend, and Count
appellant’s girl
Sexu-
available as witness.”
Fifteen,
al
With
Child Under
Contact
appellant having
Bult,
the victim
consisted
In our recent decision in
State
there,”5
penis
physical
“in
im-
(S.D. 1984),
insert
ad
we
possibility.
contemporaneousness
issue
dressed the
stating:
of this nature are abhorrent to our
Crimes
capacity for
rath
... Lack of
fabrication
very charge
stigma
carries a
society. The
than
of time to fabricate is the
er
lack
society
activity.
not tolerate such
will
rule,
is no
for this
and there
justification
Yet,
prosecute,
are difficult to
these cases
length of time that
pat answer as to the
they
upon
in private
are committеd
elapsed
and the utter
children;
between
event
very young
innocent and often
“
character of
transac
ance.
which make evidence difficult to
factors
‘[T]he
largely
will
determine the
or event
preserve
present,
adhering
tion
while still
” The
significance of
time factor.’
process
the strictures
due
rights
point
that the court must be
We can understand
crucial
accused.
falsehoods,
competency
and there
Any
sexual abuse
determination as to the
to fabricate
2.
generally
witness within
trial
com
the discretion
are
truthful as to their
fore
only
showing
upon a
court and
be reversed
plaints.
Phipps,
Nor,
abuse of discretion. Stаte v.
(S.D. 1984).
they generally
are
motivated
*8
Moser,
(S.D.1982);
128
Moser v.
82 S.D.
Nevertheless,
may
they
charges.
make false
149,
(1966).
Although temporal interval be- ‘startling tween the event’ and the child’s Appellant further claims the state significance, statement is not without it ments made to the social services worker is not question conclusive on the of ad- Although are inadmissible. we have con missibility. ... cluded that the statements made to the general
Nor does the fact that some mother the child are admissible under questioning preceded hearsay decla- rule, 19-16-6, the excited utterance destroy rations their character as excited we decline to hold that the statements inquiry, especially utterances. An one made to the social worker are admissible years, to a addressed child of tender under that statements made to rule.6 not sufficient in itself to undo the under- the social worker were in time—fif later lying reliability basis for the excited days teen after the incident—and after the exception. investiga- utterancе case had been to her referred applicable statutory "tender-years" 6. While it not be in this case enacted a rule. date, legislature because of its effective our has *9 160 the that she believed Further, showing was that worker's statement there
tion.
gained
sexual
four-year-old victim
influence of
under the
child was still
the
knowledge
contact with de-
from sexual
supra.
McCafferty,
experience. See
the
fendant, I
dissent.
retrial,
statements
those
On a
of
provisions
under
may
the
be admissible
dis
Expert testimony is admitted at the
Of
19-16-27 or SDCL 19-16-28.8
ruling
judge
will
of the trial
and his
cretion
course,
upon
facts devel-
depends
showing of
a
not
reversed absent
clear
bе
In
we
during
McCafferty,
oped
retrial.
Bittner,
of that discretion. State v.
abuse
with
statements and demonstrations
held
(S.D.1984)
121,
(citing
N.W.2d
125-26
359
to
admissible
this case
be
dolls similar to
(S.D.
Lachowitzer,
307
v.
314 N.W.2d
State
bar,
In
at
the case
under SDCL 19-16-28.
1982)
Shell, 301 N.W.2d
and State v. [Iron]
question
to whether
is a serious
as
there
(S.D.1981).
Buckley
also
v. Fred
See
given. Perhaps the
proper notice
770,
(S.D.1980);
ericks, 291 N.W.2d
may remedy that situation before
State
Transit,
Inc.,
v.
85 S.D.
Kramer
Sioux
Also,
question
will be
there
retrial.
(1970);
ex rel.
161 Co., age) may York helpful jury, same be Insurance 30, 35, 69 S.D. 6 Life especially is extremely child 162, (1942). where N.W.2d 164 Finally, any factu- Myers, See State v. young. 359 N.W.2d al weight deficiencies relate to the of the 604, (Minn.1984). 609-11 Advanced sexual testimony admissibility. and not its Buck- knowledge is a trait commonly exhibited ley, supra 772. at sexually abused children and has been rec- ognized in Sоuth Dakota.1 Id. More im-
portant, discussion this characteristic is topic appropriate expert
an for an witness jurors
since expected cannot be to rely on knowledge
common experience con-
cerning physical mental condition four-year-old
of a sexual abuse victim. See Kim, 64 598, State v. Hawaii 645 P.2d BARGER, Helen As Guardian Ad Litem 1330, (1982). 1337-38 must take care for and General Guardian of the Per- not to or diminish foreclose evidence of this Jay WARES, son and Estate of Samuel ipajority opinion nature. The labels this Incapacitated Person, an Plaintiff and only evidence as corroborating credibili- Appellant, ty of the as a appro- child witness. Under circumstances, priate it be should admitted v. relevant, independent material evidence COX, Raymond Special Administrator of of sexual abuse.2 Guy Cоx, Estate Steven De- Clearly, judicial there was no abuse of ceased, Inn, Latchstring Inc., A discretion in qualifying the social worker as Corporation, South Dakota Defendants J.L.H., In re expert opinion. 316 Appellees. 650, (S.D.1982). Further, N.W.2d 651 No. 14422. four-year-old sexual vic- proper subject tim was a testi- Supreme Court of Dakota. South mony pro- because the social worker could Argued 24, Oct. 1984. jurors peculiar knowledge vide the “with experience, 31, July not common Decided 1985. world.” Huebner, 481, 28, 1985. Wentzel v. 493-94, 78 Rehearing Aug. S.D. Denied 695, (1960) (quoting Taylor 104 N.W.2d 702 Monroe,
v. Town 36, 44). See 43 Conn. Fredericks, also v. Buckley 291 N.W.2d Hall, (S.D.1980); v.
770 Walthoff 483, (1950). 44 221 N.W.2d The social
worker’s opinion necessarily was not con-
clusive. DuPratt v. Black Land Hills Co.,
Abstract S.D. 140 81
386,
(1966).
389
bound
expert’s opinion.
Robinson v. New
Petrich,
566,
young
unlikely
graph
ty);
1. "A
child
to fabricate a
State v.
101 Wash.2d
683 P.2d
activity
(1984)
ic account of sexual
such
(credibility
young alleged
because
activi
very
173
of a
ty
beyond
experience."
realm
of his or her
sexual
abuse victim-witness
an inev-
159,
(S.D.
State v.
164
issue);
Middleton,
itable
see
central
also State
1984).
(1983) (much expert
294 Or.
P.2d
to reflect
tends
on a certain witness’s
2. Other states have faced
similar issues
recent
that, itself,
credibility
not render
will
emerged.
child
No
abuse cases.
clear trend has
inadmissible).
People
Compare,
(Minn.1984)
Myers,
See State v.