*1 establishing a causal connection. How- ever, say fervently I write
disagree with this Court’s decision in Lawl- Restaurant,
er v. Windmill
708, (S.D.1989) (Henderson, J. dissent-
ing), for the reason that there errors were deposition
of law the review testimo-
ny truly and believe that the assessment wrong “clearly
of the evidence was Fundamentally,
erroneous”. must re- we cases, concerning heart attacks
view happen during employment, on each presented
set of facts to us the record.
STATE of South Plaintiff Appellee, Gen., Roger Tellinghuisen, Atty. A. Pierre, Meyer, Gen., Ann Atty. C. Asst. OLESEN, Jerry Lee Defendant Pierre, plaintiff appellee. Appellant. Offiсe, John A. Shaeffer of Shaeffer Law No. 16426. Flandreau, appellant. for defendant and Supreme Court of South Dakota. WUEST, Chief Justice. 24, Considered on Briefs March Jerry appeals judg- Lee Olesen from 19, July Decided degree rape, ments of conviction for second age sexual contact with a child under the 16, degree rape. and third We affirm. FACTS October December of Oles- en had sexual 14 year intercourse with his daughter May Lisa. Then in molesting Lisa younger saw Olesen sisters, Alta, by rubbing Liza and their vaginas fingers. with his Liza years yеars old and Alta was three old at the time. County
Olesen was indicted
a Haakon
grand jury
degree
on two counts of second
rape,
counts
two
of sexual contact with a
age
child under the
one count of
degree rape,
tamper-
third
and onе count of
ing
During
awith witness.
the trial a
given
doctor testified as to the statements
*2
during
showing
by
Liza
a medi-
of an
year
old
abuse of discretion.
him
examination
Bawdon,
examination. This
oc-
(S.D.1986).
cal
A
after
eight
Olesen
about
months
curred
testimony concerning
doctor’s
а child’s
Defense
allegedly molested Liza.
counsel
during
statements
a medical examination is
testimony
since it
objected
the doctor’s
under
admissible
SDCL 19-16-8 when the
were
hearsay,
objections
but the
over-
was
primarily
statements were
concerned with
The
by the
court.
doctor also
ruled
trial
happened
child,
what
to the
rather than
during
the examination he
testified
Id.;
who committed the assault.
State v.
hymenal
injury
ring
to Liza’s
found an
and Garza,
H present expresses, this includes ated the referral for sensation, abuse; pain possible or the incep- pediatrician, child symptoms, like- “reasonably pertinent encharged wise a statutоry obligation, that are to di- tion" conducted an for agnosis or treatment (including and treatment a recommendation Renville, held, Eighth Circuit in- treatment, if necessary). mental Pre- alia, that “sexual abuse children at ter vention of repetition of child abuse рresents different totally situation home removing the from accused the home is normally encountered in Rule from type often a of recommended treatment. situation 803(4) requires cases and this extremely Prosecutions are excluding difficult highly pertinent greаt caution cases, as, types very their Renville, at The evidence.” Renville nature, a child is the victim and expressed Court further “we believe children, witness. These who are victims a statement a child victim [sexual] abuse, extremely testify fearful to *4 of the abuser is a member the immedi- and particularly family if a member is the presents sufficiently ate household a differ- perpetrator. say, Needless to the South case from envisioned the draft- ent Legislature attempted Dakota has to re- 803(4) of Rule such that it should nоt ers spond by enacting to child general a general According under the fall rule.” policy overall protecting towards child court, identity Renville the of a vic- the and, furthermore, abuse victims provide assailant tim’s and other statements attrib- for physicаl immediate or mental treatment are, rule, uting per general fault the ordi- shortly after the When the is abuse. narily inadmissible under Fed.Rule Evid. within family, examining the an physician 803(4) identity because and fault are not psychological must observe the of effects usually diagnosis relevant treatment. the abuse. importantly, More that physi- apply analysis If we the Renville to the cian public and all officials in connection case, of testimony facts the doctor’s therewith, responsibly must act towards year girl that he reveals asked a prevention in family the the future. pertinent questions to assist him in his setting, the fact of the abuse of and treatment the child. relevant, very identity perpe- but the of the Here, attempt this doctor did not to incul- See, directly germane. trator becomes father; rather, pate girl’s the little the Vosika, 298, Or.App. v. State 83 731 reveals, specified in majority record the (1987),aff'd, P.2d 85 rehearing, 453 on writing, that girl inceptually the little iden- Or.App. 1273 735 P.2d her tified father as the abuser. The doctor special in Finally, spirit with concur- inquired pain questioning about in his of rence, two-part adopt would test for girl symptoms, little exactly admissibility of statements coinciding in language SDCL 19-16-8. purposes medical treat- that, same upon This based testified hearsay exception ment under the examination, enlarged his cause 19-6-8, which is the same as Fed.R.Evid. vaginal vaginal area ring and scarred was 803(4): (1) “The declarant’s motive mak- sexual abuse. Note that SDCL 19-16-8 ing the must be consistent with refers to “describing history”. also treatment”; promoting experienced doctor/pediatrician This and, (2) “the content the statement must qualified expert as an in child abuse and reasonably such be as is relied law, duty, owed under state to obtain the physician diagnosis.” Ren- medical facts and reasons behind his con- ville, at 436. neglect clusion child he was re- quirеd prosecution. to do or face criminal result). MILLER, (concurring in Justice Appellant vigorously assails entire examination portions ad- In my opinion, those of the doc- physical vocating pujóse that its basic relating was to se- testimony identity tor’s against appellant. cure evidence A county hearsay were inadmissible defendant social worker of the of South suggest State should excluded. I have been encharged statutory obligation, (“I with a testimony initi- the doctor’s then if asked ... if he had had ... ... father ”) “diagno- relationship to has no direct ... 803(4)), (required Rule
sis treatment” after
especially some months act.
criminal
However, considering the abundance of evidence, I would hold that the
other direct testimony such was harmless
admission of Stavig, State v.
error. Davis, v.
(S.D.1987); State N.W.2d 721 Traversie, v. (S.D.1987); State 387 N.W.2d Remacle, (S.D.1986);
N.W.2d 38
SABERS, (dissenting). Justice admissibility dissent as to
physicians’ hearsay statements. Under circumstances, testimony the doсtor’s physical
should limited his have been child. This
examination of the eight months the claimed
occurred after *5 abuse. The examination too remote to
be the ambit of SDCL 19- included within hear- purpose admitting
16-8. For the
say, this statute requires treatment for a condition,
current per- not an examination legal, purposes,
formed for the fact. 19-16- months after
8. II, LARKIN, A.
Charles A. Charles Larkin, III, Trustees of the Larkin Po Johnson, Eklund & Rick Johnson Inc., Larkin, Company, tato Charles A. Davis, Gregory, plaintiffs appel- III, personally, Appel Plaintiffs lants. lants, Adam, Thompson of May, Charlеs M. Pierre, Thompson, Gerdes for defendants & Arthur, Joe and Jim Cobb ROE d/b/a appellees. Farms, Terry Creek C. Frost and Cobb Farming Corporation, Creek Defen YOUNG, Judge. Circuit Appellees. dants and appeal from a Plaintiffs directed verdict No. 16384. Terry entered in of defendant C. favor Supreme Court South Dakota. (Frost) dismissing him in Frost his individu- capacity al from the action. We affirm. April Briefs Considered on July Decided
FACTS II, Larkin, A. Plaintiffs Charles Larkin, III, Charles A. the business