*1 son was Ron Bell. There was no evidence Bell, him, anyone working
that Ron or for inspected any
ever the house or received
complaints about the house. There was no Bell, anyone
evidence that Ron working him, necessary”
for ever “deemed it for bring this house compliance
Schulte into requirements
with the of the IRC. There were no
[¶ 26.] material issues
of fact in dispute regarding duty. Based facts, undisputed
on the the circuit court
correctly concluded that Hendrix did not any statutory
establish or common law
duty that required Schulte to install
handrail where none had been previously
installed. We affirm.
[¶27.] GILBERTSON, Justice, Chief MEIERHENRY,
and KONENKAMP and
Justices, concur. MYREN, Judge, Circuit
SABERS, Justice, disqualified. ZINTER, Justice, disqualified.
STATE South Plaintiff Appellee, PACKED, Jr.,
Fred Defendant Appellant.
No. 24040.
Supreme Court of South Dakota.
Argued April 2007. July
Decided
in with Shanna when two. she was In the 2003, Shanna, defendant, summer Martin, E.S.B. lived brown house South Dakota. Her natural mother and *3 Housing Addition, father lived Sunrise away. several miles 6, 2003, Around [¶ 3.] June Shanna was hospitalized in Rapid City, South Dakota jaw. with According Shanna, a broken City. defendant drove her Rapid Shan- na recounted that while she was in the hospital, defendant was E.S.B.’s primary time, During caretaker. this same defen- jobs. dant he working said was two When hospital, Shanna returned from the she noticed some blood in E.S.B.’s underwear questioned and her it. about E.S.B. de- anything happened nied that had to her and that the belonged said underwear her Shanna nothing sister. did further. Long, Attorney Lawrence E. General Attorney and Frank Geaghan, Assistant fall, Later that or early summer General, SD, Pierre, Attorneys plaintiff Shanna, defendant, and moved E.S.B. into appellee. in Housing blue house Sunrise Addition. They living were now close to E.S.B.’s Rensch, Office,
Timothy J. Rensch Law mother, Betty. September natural In APLC, SD, Rapid City, Attorney for de- Betty Shanna and noticed “a light fendant and appellant.
green stain” E.S.B.’s underwear. She KONENKAMP, Justice. Betty questioned E.S.B. it. Ac- Shanna, cording Betty angrily asked [¶ 1.] Defendant was convicted messing E.S.B. who had been around with degree trial of rape first and sexual response, her. E.S.B. gave When no Bet- contact with a child who lived in home. his if ty “Gordon” asked or “Fred” had been twenty-five He was to life plus sentenced her, messing around with which E.S.B. years. Because we conclude that several (defendant) replied that Fred had. Ac- trial, deprived trial errors him of a we fair cording Betty, not do anything did reverse and remand for a new trial. information, except with this leave the Background upset. room E.S.B., was eight who at the time question, with January Department incidents lived (defendant). Packed, (DSS) Shanna and Fred Jr. of Social a report Services received The child to them referred as “mom” and about A abuse of E.S.B. social “dad,” actually investigated but Shanna is ma- speaking E.S.B.’s worker first Allen, grandmother. ternal According to Shan- her South E.S.B. at school Dako- na, mother, Du- grade. E.S.B.’s natural ta. was in E.S.B. the third She father, Bray, and DuBray, natural Gordon told DSS worker that defendant had her,” “didn’t want and so the moved her child touched sometime between Halloween Shanna, mom, tivities, without reluc- E.S.B. answered her Thanksgiving However, they questioned moved. She baby oil when tance. had found her youn- touching, worker that and inappropriate told social also all happen. ger noticeably changed. sister there and saw E.S.B.’s demeanor thought first Although the authorities in a given Her answers were reserved and describing abuse had oc- E.S.B. was low voice. they realized that recently, curred later Hawkins that defen- E.S.B. told an incident of speaking about E.S.B. was her four times dant had touched touching happened that had improper in the house while her mom room brown living in the brown house she was
while *4 that he hospital. was in the She also said previous the summer. “peaches” her with hand. La- touched his officers contin- Law enforcement [¶ 6.] during ter the interview she that de- said They spoke with investigation. ued their of her top fendant had laid on her with un- attempted and to collect the Shanna pants “peaches” and touched down her baby oil evidence. The derwear and dog.” This was E.S.B. with his “hot after washed, had been but Shanna underwear repeatedly pants up, stated that her were anyway. gave it to She also gave them his, and inside as were that he never went baby of oil. Shanna told them bottle interview, During her underwear. when noticed the officers that she the stain speak left to with Walker Hawkins Sheriff in the she told defendant about underwear and Chief to if there Police Valendra see it and he her to take E.S.B. to the told anything they explore. was wanted her to also doctor. Shanna told authorities returned, questioned When she she E.S.B. her, boy a had neighbor about who called baby youn- about oil and whether her, her, things said swore and rude ger in room the touch- sister was claiming boy- he all while was E.S.B.’s ing that her occurred. E.S.B. denied gave the in- friend. Sheriff John Walker younger sister there and had no infor- boy, D.H., neighbor formation about baby Nothing oil. mation about the City Martin Police Shane Valendra. Chief D.H., boy. the neighbor asked of her about Nothing regard else was done with to this or Police information Sheriff Walker on Defendant was indicted Chief Valendra. rape first a child charges degree and contact a child under ten sexual with Police Chief Valendra Sheriff June, “on under sixteen or between younger Walker took E.S.B. and her sister January 2004.” Defendant moved a Rapid City for forensic interview particulars, granted. which a bill medical con- examination. Lora Hawkins The filed time of limiting State the bill of E.S.B. and ducted forensic interview offense to “on or between June Strong, pediatrician specializing Dr. Lori 6-11, trial, At upon motion of 2003.” abuse, in the of child examined her. field defense, limit- the time frame was further The inter- videotape recording of E.S.B.’s 6-9, 2003.” ed to “on or between June child, shy view and reticent who shows jury, the indictment was read to the When little information. Each bit volunteered modify frame agreed the time had to be pains- detail about the incidents Also, in careful, comply agreed with the dates. takingly age-appro- with obtained instructions, jury preliminary the court’s questions. ap- The priate interview lasted recited were “on or between forty-five minutes. dates proximately When 6-9, 2003.” inconsequential ac- June questions centered trial, Before the State moved that D.H. claimed to boyfriend. be E.S.B.’s agreed Sheriff preclude present- from Walker that such limine contribut- opinion, ed to his but that there ing third-party perpetrator. evidence were of a other factors. responded that he Defense counsel what necessarily was not intended to introduce Dr. Strong told the in- third-party perpetrator evidence. He E.S.B.’s examination was normal. Howev- Shanna, to cross examine tended Sheriff er, explained majority that the of chil-
Walker, neighbor E.S.B. sexually dren who are abused have normal D.H., boy, Shanna and had and how physical examinations. She testified that “running concerns E.S.B. around” not be unusual to see such reluc- him. of questioning, This line counsel testifying tance in child for a of E.S.B.’s asserted, theory his de- supported age. Forensic examiner Hawkins testified fabricating fense that E.S.B. was the alle- about her interview and how her opinion against defendant to gations getting avoid twice, E.S.B. was molested at least even having boyfriend. trouble for though she claimed to have been touched limine, granted the State’s motion four times. explained Hawkins that she *5 nothing concluding that linked D.H. the believed E.S.B.s’ revelation was not a crimes, thus, third-party and E.S.B., “purposeful disclosure.” according evidence, it perpetrator was inadmissible. Hawkins, loved defendant and “it is separate hard to person the from the ac- testifying trial, [¶ 11.] While E.S.B. tions sometimes.” from The video her in- even than was more reticent when she was played terview E.S.B. was for the by interviewed the forensic interviewer. jury. occasions, a number of the had to On repeat questions presented its before she re- Defendant [¶ 14.] the testi- mony previous attorney, of his specifics rape On of Alvin spond. the charge, Apparently, Pahlke. had she said that while her Shanna taken underwear private E.S.B. to see Pahlke a down un- for inter- pants was and defendant’s and during the down, representing view time he was derwear were touched Pahlke defendant. testified E.S.B. her “middle” with his “middle.” Shanna told him that defendant not touch did Betty They also testified. described “peaches” and she him wanted to come they un- how found the stains E.S.B.’s home. it. questioned derwear her about was asked about D.H.
Shanna defense In its final instructions to the proof in an of counsel offer outside jury, instruction, an the court included presence jury. acknowledged of the She objection, stating over that al- defendant’s she had concerns. admitted though charges that “[t]he Indictment angrily questioning E.S.B. with Shanna offense was committed ‘on between’ a there. date[,] certain ... sufficient if is [i]t beyond evidence establishes reasonable 12.] Sheriff testified that he [¶ Walker doubt that the offense committed on a was uncooperative during Shanna felt was reasonably alleged.” date near the date investigation. He believed that she was attempting Again defendant. protect guilty Defendant found of was presence jury, outside the charges, being defense both admitted to habitual offender, counsel asked Walker one plus Sheriff whether and was to life sentenced years. of the reasons believed twenty-five appeals asserting he Shanna He (1) uncooperative prevented he was improperly was because mentioned from 856 v. Kol First Premier Bank theory prejudicial. his of of evidence
pursuing ¶ Inc., 92, (2) 40, defense; it used Enterprises, court erred when craft (citations omitted). (3) instruction; 430, there 686 N.W.2d “on or about” of penetration insufficient evidence Inc., Co-op., v. Elec. Cam Wal Vetter (4) conviction; Sheriff support rape ¶21, 10, 612, 711 N.W.2d 615. “The SD testi- permitted to improperly Walker judgment acquit- of a of denial motion likely to are that a victim’s statements fy law, of and thus our presents question tal investiga- course of an change during the Disanto, is de v. review novo.” State (5) al- tion; and the court erred when ¶ 112, 201, 14, (citing 688 N.W.2d SD testimony of the forensic certain lowed Staula, 596, 604 States v. 80 F.3d United interviewer. (lstCir.1996)). Standard of Review Analysis and Decision admit or Decisions to Theory of the Defense under deny evidence are reviewed standard. abuse discretion 18.] Defendant asserts “the Steffen Inc., 2006 SD Enterprises, Schwan’s Sales misap- third-party ruling was perpetrator (citations ¶ 614, rules of evi- plied contravention omitted). instructions, the fol jury For way in such a as to disallow the dence our of review: lowing is standard theory complete presentation of defense rights discretion in the word violate confrontation.” A trial court has prevented instruc When defense ing arrangement tions, generally inquiring review from into whether E.S.B. fabri- and therefore we *6 sup- deny allegations a cated the because of her grant a trial court’s decision or boy, a posed relationship neighbor particular instruction under the abuse Deal, defen- ruling See Luke v. based on its belief that discretion standard. ¶ 165, 168; 6, 11, attempting dant was offer evidence City, third-party main- Rey-Rapid perpetrator.1 Del Defendant Parker Casa ¶ Inc., 29, 5, con- tains that the evidence was while SD However, perpetrator evidence, as third-party no court has discre strued 115-16. incorrect, was, fact, in misleading, establishing con evidence his give tion to defense, In of this defen- flicting, confusing pursuit instructions: to do defense. argues right if it is that he had reversible error dant the cross so constitutes Shanna, Walker, Betty, only shown not that the instructions examine Sheriff erroneous, they neighbor boy.2 also were and E.S.B. were but that limine, you go fur- ruling going are into 1. In the State’s motion in statements. If on evidence, stated, say you going are you can ther then to have to the court "I don't think well, things. you say, granted, I think can come and—so motion is will both I don’t statements, you go if just allow inconsistent statements. But going we are into inconsistent that, you further will have to come back they finger person." at than point but do a third "So, permission.” and ask me responded, to order Defense counsel point get anybody else at this not to into limine, response In to the State’s motion something possibly doing would have that argued, defense counsel say things, be to caused her to these would conceding opportu- party that deprive meaningful I am not it is third defendant of nity opportunity perpetrator evidence. I can see where to be heard and an to cross- say re- it is If she key witness in a case that someone would that. has examine credibility.” final made statements to it was someone volves around The court’s others else, certainly right to ruling: go we would have a ask agree, "I he can into inconsistent Walker, regard In to Sheriff de- was her boyfriend. And that he called opened fendant claimed the State her a fat bitch on the phone. neighbor boy on when it door issue Q: Okay, say what you did immedi- why
inquired into the sheriff believed before, ately which caused her to say cooperative during not Shanna was that? investigation. prohibited The court defen- A: my— Can I look at question- from engaging dant this line Q: Please. ing. making his offer proof, defen- A: The other only people that would be following testimony dant from elicited taking [sic], care of Shanna I asked her Sheriff Walker: who all would be taking care of Shanna Sir, cross-examination, Q: we were [sic], talking a little bit about matter Q: Okay. you felt Shanna Packed was mis- A: said
leading you only I’m And she other looking page people on. five would report, of five of be Shanna’s your [sic] where there is a mother and fa- ther. statement about [D.H.]. Q: You mean [E.S.B.]’s?
A: Yes. A: mother and father. [E.S.B.]’s Q: what you talking Is that were about? Q: Which be Gordon. incidents, A: That one of the but I Gordon, A: yeah. specifically you don’t recall were Q: then, It was after that she was tell- asking question. that you Now ing you story neighbor- about the brought my attention, yes, it to that is boy? hood one of the incidents. Yeah, A: right went story she into the Q: you it she What was said neighbor boy.
you misleading? felt was Q: felt you And that was [a] reference A: I trying felt that to lead me panties, the stains is that cor- *7 away investiga- from Mr. Packed in the rect? to, tion. And blame on point a—this A: I talking felt that—-I had been to young man. her panties about the about Mr. and Q: Okay. And tell the what she [c]ourt Packed, and she wanted —I felt she was regard. said that leading somebody me to think that else called, her, may A: She that he said had have had contact with and that [D.H.] her, had called and that that boyfriend, he said he had this this [E.S.B.] [D.H.]. know, you precluded her about that. I don’t have and I want to don't be based a— it is not like the State Luna upon versus case granting third-party perpetrator of they brought where in a of bunch witnesses up people motion. I don’t have lined saying guy that had on blood his hand that, know, you come in and show someone really and was that. I think off like that I position else did It is our that this did this. get providing any can stuff into this without occur, not Fred did do this. not So notice, because it involves statements of the standpoint, third-party perpe- from that victim, alleged my cross-examination of really trator is irrelevant in the sense that just her is what it will be. I wanted the saying we are not that was what she said that, yeah, got [c]ourt to know we’ve some Fred, happened happened. with even So there said statements out where she differ- position. that’s our those, plan things getting ent I into on her interfering I her elders rela- part again, didn’t about Say that last Q: tionship boyfriend[.]” with a Defendant you. hear that he should have been allowed believes trying point that she was A: I felt question E.S.B. about “whether not suspect another in the me direction making story up to deflect this be investigation. Which would at the time her elders possible trouble boy young [D.H.]. pant- in her questioned her about stain any steps track this Q: you Did take Allowing cross examination ies.” boy down? subject, defendant witnesses on this as- to Chief given The A: information serts, “justification could establish Valendra, Martin, and it was in because allegations, victim lie a follow- going he to conduct he said was give to the statements could context investigation. he have So would up victim, could reasons oth- show information. given that been for claims er than sexual molestation any- right. you All didn’t do Q: So made.” thing regard? more in that arguments, response these got I I if I when A: don’t recall did properly the State contends back, other than told Chief Valendra. evidence because there was excluded this clear, you Q: just And we are when so charged D.H. to crimes nothing linking said, direct, on that she was denial therefore, and, “highly the evidence was times, you were misleading me “little probative unreliable” and of value.” referring in this situation? part to [D.H.] The State further asserts that door That, were dis- A: and also we opened during not Walker’s Sheriff cussing initially told me panties, she testimony why he believed Shanna was it anything that she know didn’t being Walk- uncooperative because Sheriff that I tell who made and demanded finding her had other reasons for un- er allegations, these and she turned around cooperative. Regardless of whether green and told me that she has seen this opened inquiry the line of with its state panties. substances in the Walker, we think the questions Sheriff restricting court erred in cross examina- intro- court did allow defendant to not boy. neighbor on the tion evidence, concluding duce this ruling violate on third- previous outset, At we must em However, the perpetrator evidence. party no phasize special there is rule permitted to into how inquire State was dealing solely Dakota with third- South *8 the in- uncooperative during Shanna perpetrator evidence. Relevant evi party vestigation. admissible; is irrelevant evidence is dence inadmissible, ruling, subject to to the considerations holding In its [¶20.] (Rule 403). inquiry also of of SDCL 19-12-3 SDCL 19- court limited defendant’s (Rule 402). Labeling D.H. an offer “third- concerns about 12-2 Shanna not perpetrator” Bet- evidence will auto previously party had said that when Shanna matically party un- it. third questioned E.S.B. exclude When ty angrily challenged is as un perpetrator about her evidence derwear there were concerns fairly prejudicial, misleading, or “running confusing, with D.H. This infor- around” mation, defendant, required apply, trial courts are to according supported record, prejudicial theory probative versus his that E.S.B. motivated (Rule 403) balancing of SDCL 19-12-3 defendant because she “was worried test blame
859 evi- deciding to admit or exclude such [¶ 24.] We afford broad discre Jenner, v. dence. See State 451 N.W.2d tion the court in deciding whether to (S.D.1990); Braddock, 710, 722 State v. 452 admit Steffen, or exclude evidence. 2006 (S.D.1990). ¶ 785, 41, 19, (citations N.W.2d 789-90 SD 621 at omitted). However, a trial court “[w]hen here, More point to the evidence, misapplies rule of opposed as however, recognized be there must to merely allowing refusing questiona is a distinction evidence offered to between evidence, ble it abuses its discretion.” prove guilt uncharged of another indi ¶ Guthrie, 61, 30, State v. 627 vidual that a and evidence offered to show 401, (citing 415 v. Koon United witness a motivation to has accuse States, 81, 100, 2035, 518 U.S. 116 S.Ct. deny To wrong person. without rational (1996)). 2047, L.Ed.2d By 135 392 consid basis the latter evidence of contravenes ering relevancy of pro defendant’s process rights. defendant’s due In Davis posed cross examination his defense and Alaska, Supreme v. the United States weighing then not probative value of explained: Court against this prejudicial impact, evidence particular A more attack on the witness’ (Rule misapplied the court SDCL 19-12-2 credibility by cross- is effected means of 402) (Rule 403). SDCL 19-12-3 revealing examination directed toward simply concluded that defendant was biases, possible prejudices, or ulterior attempting to offer of a evidence third- they may motives witness as re- of the party perpetrator any and excluded refer directly personalities late issues or ence for any pur to D.H. partiality the case at hand. The of a pose. Completely disregarded was defen trial, subject exploration witness is at presenting interest dant’s his defense discrediting and is relevant ‘always E.S.B. motivated to fabricate the weight affecting witness and allegations to getting avoid in trouble with testimony.’ his 3A Evi- Wigmore, J. Betty. Shanna and (Chadbourn § dence 775 940 at rev. 1970). recognized We have that the ex- Chambers v. Missis posure of a witness’ motivation in testi- sippi Supreme the United States Court fying proper important is a function right declared cross-exami “[t]he constitutionally protected right of the of nation than a is more desirable rule of trial cross-examination. procedure. It implicit is in the constitu 316-17, 308, 1105, 1110, 415 confrontation, U.S. 94 right helps S.Ct. tional as (1974) 39 (citing ‘accuracy L.Ed.2d 347 v. truth-determining Greene sure the ” 474, 496, 1400, 295, McElroy, process.’ 360 U.S. 79 S.Ct. 410 93 at U.S. S.Ct. 1413, (1959)). pro 1046, 3 1377 L.Ed.2d L.Ed.2d at (quoting “[D]ue 307 Dutton v. Evans, 74, 89, 210, cess is in the right oppor 220, essence of a fair 400 U.S. 91 S.Ct. tunity against (1970); to defend accusations. L.Ed.2d Bruton United States, State evidentiary may applied 135-37, rules not be U.S. 88 S.Ct. (1968)). mechanistically jus 1628-29, to defeat the ends L.Ed.2d 476 When a *9 Luna, 229, tice.” State v. theory supported by 378 N.W.2d 233 defendant’s “is law (S.D.1985) Mississip v. in (citing Chambers and ... has some foundation the evi pi 284, 1038, however, tenuous[,]” dence, 410 U.S. 93 S.Ct. L.Ed.2d the 35 defendant (1973)); 297 present see also Holmes v. Car to right South has a it. United States v. olina, 319, 321, 1727, (7thCir.l969) Grimes, 1376, 547 U.S. 126 413 F.2d S.Ct. 1378 (2006). 1731-32, 164 States, (citing L.Ed.2d 503 v. 190 F.2d Tatum United 860 ¶92, Lamont, 16, (D.C.Cir.1951); v. 631 N.W.2d
612, v. United States 617 435, 603, Kentucky, 442-43 v. (quoting 217 F.2d 608-09 Crane Phillips, (7thCir.l954)); 687, 2145, v. 683, 2142, also United States 90 see 476 106 U.S. S.Ct. (5thCir.l978); Chatham, 445, (1986)). 450 568 F.2d By excluding all ref L.Ed.2d 636 123, 448, 967 P.2d Lujan, v. 192 Ariz. D.H., State ruling the in all court’s erences (1998); State, 922, 591 v. So.2d 127 Lewis affected the final result and probability (Fla.1991). 925-26 trial, right to a fair prejudiced defendant’s Hage, a new trial. See v. requiring State tending Evidence to es 26.] [¶ (S.D.1995) 406, (citing 412 532 N.W.2d to fabricate the tablish motive of E.S.B. 613, 617 Phillips, State 489 v. N.W.2d against certainly allegations defendant Michalek, (S.D.1992); State v. probative, it casts doubt relevant (S.D.1987)). 815, 818-19 that defendant com the State’s evidence 19-12-1; the SDCL mitted crimes. See 227, Kentucky, 488 U.S. 231-
see Olden Jury 2. Instruction 32, 480, 483, 102 513 109 S.Ct. L.Ed.2d asserts Defendant next (1988). implicated At the time E.S.B. de that erred when it instructed the the court fendant, Betty angrily questioned after if jury guilty could be found that defendant in regard greenish stain her under alleged the that crime jury concluded wear, Betty had Shanna and concerns occurred “on or about” the dates neighbor boy, D.H. about E.S.B. and defendant, According indictment. E.S.B. did not make accusations to limit time frame to agreed questioning until against defendant 6-9, “on or June 2003.” When between Shanna, which from was about jury, the State read the indictment to the alleged touching. five months after the 6-9, between 2003” recited “on or June Allowing an effective cross ex preliminary and the court’s instruc Walker, Shanna, amination of Sheriff Bet 6-9, tions or between 2003.” used “on June ty, and E.S.B. not result in confu However, objection, the over defendant’s issues, time, delay, sion of waste of jury in its court told the final instructions presentation of cumulative evidence. though charged even indictment An af [¶27.] accused must “be between,” guilty “on or to find defendant meaningful opportunity pres forded a “beyond must establish a rea evidence complete Iron ent defense.” State v. offense was com sonable doubt (S.D.1988) Necklace, 66, 430 75 reasonably mitted date near the date on a (citation Mixon, omitted); see also State v. added). alleged.”3 (Emphasis (2000) 49, 519, P.2d Kan.App.2d argues Defendant Kan. (citing Bradley, State v. in- (1978)). reasonably court’s a date near” “on ability P.2d 647 Those denied the improper. struction was He asserts respond prosecution’s case to the Betty’s effectively deprived them a E.S.B. was home while Shanna against “ are hospital Rapid City, was in which right ‘fundamental to a fair ” constitutional 6 to at 2003. opportunity present a defense.’ State from June least June alleged. It court’s the exact date of the is Instruction 29 of the final instruc- offense entirety: beyond tions stated evidence sufficient if the establishes doubt that the offense was reasonable charges The that the indictment offense reasonably a date near the committed on committed between” a date. “on or certain proof certainty alleged. need not establish with date
861
Therefore, because E.S.B. was not with
substantially
error
prejudiced defendant’s
him,
jury
defendant claims that the
would rights.
(cit-
Rage,
See
near” the 3. charged dates. of the Evidence According defendant, When time is a material because the evidence at trial established element of the crime or when time is of the through testimony Strong Dr. essence, may be error for a trial court to the “genital opening” hymen, is the jury instruct the that a defendant can be State was required to establish that defen guilty jury found if the finds that the crime dant penetrated hymen E.S.B.’s before the occurred at a date reasonably near the jury could find him guilty of rape. Under alleged. Sonen, date See State v. 492 22-22-2, SDCL (S.D.1992) 303, penetration “[s]exual N.W.2d 305 (citing State v. act, an means Nelson, (S.D.1981)). slight, however 777, sexual 310 N.W.2d 779 intrusion, intercourse ... or any however Although defendant claims that E.S.B. was slight, any part body any or of staying Betty’s when the crimes object genital into the occurred, or anal open there is also evidence that she ” ings .... We have never held that stayed with SDCL defendant while Shanna was in 22-22-2 requires hymenal penetration hospital. Shanna testified at trial that act, constitute “an slight, however ... while into hospital she was genital” opening. See SDCL 22-22-2. primary E.S.B.’s caretaker. presents When the State evidence of also vulval testified E.S.B. was with defen or labial penetration, Therefore, slight, however dant. this defendant’s “inverse ali act, if believed jury to have oc bi” defense is not sufficient in itself to curred, is sufficient pen to establish make time of the essence. espe This is etration of genital opening. See Peo cially true considering that “in cases of Bristol, ple v. 236, 115 Mich.App. sexual 320 abuse of minors” we have held “that 229, (1981); State, N.W.2d 230 Jackson v. time is not a material element of the of 438, (Miss.1984); 452 So.2d 440-41 State v. 127, fense.” See v. Darby, State Hirsch, ¶ 31, 245 10, 69, Neb. 511 311, N.W.2d 80 556 (citing N.W.2d State v. (1994). Floody, 242, (S.D.1992); Basker, (S.D. 468 N.W.2d Investigating Testimony Officer’s 1991); Wurtz, State v. 436 N.W.2d (S.D.1989); Swallow, State v. objection, [¶ 33.] Over defendant’s (S.D.1984)).
606, 608
Walker,
State asked Sheriff
“During the
thousands of investigations you’ve
done
Yet,
case,
this
there was a
your
years
enforcement,
20-some
of law
specific agreement between the State and
have things changed
you
from what
origi-
the defense that the crime was committed
nally thought
you
started the investi-
6-9,
“on or between June
2003.” Defen-
gation,
you completed
to when
it?” The
dant relied
agreement
on this
and defend-
question was asked in relation to E.S.B.’s
ed the case in accordance with the time
inconsistent statements.
Sheriff Walker
Sonen,
alleged. See
date near” instruction. This change. The dates can Perceptions that *11 862 Behrens, thing, Shamburger v. 380 seeing has of one See N.W.2d individual
one (S.D.1986). 659, it. away to it take from 664-65 they may add or something dif- may individuals see Two Testimony 5. Forensic Interviewer’s investigation ferently. Any event in an that why you argues Defendant next subject change. 36.] That is [¶ is to testi- improperly allowed Hawkins your investigation. continue Accord- fy credibility of E.S.B. about defendant, “self-serving According to this defendant, testimony ing to Hawkins’s in effect without foundation is speculation, victims, regard all child general not unqualified expert and bare the officer’s and, therefore, specific to E.S.B. but was routinely change how things about opinion jury. province of the invaded state- make the victim’s inconsistent Hawkins, you if I tell State asked “And so insignificant.” ments seem that, testimony when [E.S.BJ’s hap- this yesterday, of was here was that is the function [¶ 34.] “[I]t conflicts, I think on evidentiary pened her room. And jury to resolve witnesses, it room.... tape we saw was in her mom’s credibility of determine Svihl, you concern any great 490 Does that cause as the evidence.” State v. weigh (S.D.1992) career, 269, spends v. who their 30 (citing 274 State someone N.W.2d (S.D.1980)). Battest, 739, years, working doing with children and 295 N.W.2d 742 forensic interviews?” Over defendant’s general rule ... is that one witness “The testify credibility objection, responded, anoth Hawkins may not [on testimony ... because such witness] er radically I had it different guess, been of the province invade exclusive location, instance, if she had said it credibility of a wit jury to determine the in a happened car when she came and Solem, McCafferty v. 449 N.W.2d ness.” jury, had said talked to or if she (S.D.1989), on other overruled doors, out of that would be a happened v. N.W.2d grounds, Raymond, environment, radically different versus (S.D.1995). in a as another bed- one bedroom home apparently in the same house? room Although ex- we have allowed not at all that surprise That would me perts testify gen- sexual abuse cases do we child would that. What know victims, erally about child Sheriff Walker talking children about their abuse investiga- expert was not offered as an they by piece, tell bit things piece is involving tions child See State victims. bit, and much of that is based on ¶73, 35, McKinney, 2005 SD 699 N.W.2d they going happen, feel is once what at (citing Floody, 481 N.W.2d they tell all. 249). However, even if the court erred added). According to defen- (Emphasis allowing questioning, this line of dant, cry talking is a far “This from pro- argued has not the court’s error children.” characteristics abused duced of the some effect on the outcome “Generally, ‘one wit Hage, (citing trial. See at 412 N.W.2d Michalek, wit 617; may testify not to another Phillips, 489 ness 818-19). Instead, credibility capacity truth-telling claims 407 N.W.2d at he nesses] testimony con- such would invade the this error was because prejudicial light province sidered to determine with other trial errors. exclusive ” McKinney, issue, credibility of a need not witness.’ remand on first we ¶73, 32, (quot- at 481 prejudicial. determine if this error *12 (cita- I Raymond, credibility. disagree. 409-10 E.S.B.’s ing The omitted)). However, question specific E.S.B., an State’s expert’s tes- was as tions timony province improper, the of the was the does not invade and answer to the spe- question responsive cific jury “generalized explanation when it is a was specific the ¶ testify[.]” question. capacity basically child’s Id. 33. The if of a State asked problem have to find that an there was a with also declined E.S.B.’s We credibil- testimony ity the because expert’s province invaded she switched locations of the alleged jury expert during the when the testified “to the abuse her testimony. The sexually of a forensic general improperly characteristics examiner bolstered Edelman, child.” E.S.B.’s when credibility essentially abused SD she ¶52, 22, 419, 423. testified that Although she had no concern with the specific E.S.B., question testimony. the was inconsistencies in E.S.B.’s State’s Specifically, the improper, response responding and therefore to the im- gave general proper question Hawkins and did not forensic examiner ex- Instead, credibility. plained: on touch E.S.B.’s she type testimony about
spoke how this guess, I radically had it been different not on surprise expe- her based her location, instance, if she had it said Thus, in general. rience children al- happened in a car when she came and objection though prosecutor’s to the talked to or if jury, had said sustained, question should have been doors, happened out of would be answer itself was not improper. radically environment, different versus one bedroom in a home as another bed- 38.] Reversed and remanded.
[¶ room in apparently the same house? GILBERTSON, Justice, Chief surprise 39.] That [¶ would not me at all that MEIERHENRY, ZINTER and and child would do that. What we know Justices, concur. talking children about their abuse is that they things piece by piece, tell bit SABERS, Justice, concurs bit, and of that on much is based part part. and dissents in they going what to happen, feel is once SABERS, (concurring part Justice they tell all. dissenting in part). ¶ added). Supra (emphasis majori- The 1, 2, I concur in 3 & 4. I Issues ty opinion portions emphasizes of the
dissent
Issue 5 because the Court im-
testimony
allegedly
which
refer to children
properly allowed forensic examiner Haw-
However,
generally.
the preceding state-
to testify
credibility
kins
specifically
ments
to “she.”
fo-
refer
stated,
testimony
E.S.B. As
was not
answer,
rensic
taken
examiner’s
regard
child
general
to all
victims but whole,
demonstrates
could
province
to E.S.B.
specific
and invaded
reasonably
have
not
concluded that
jury.
McKinney,
See
general
response only went
charac-
¶¶ 32-36,
improper that bol- answer
improper prejudicial credibility invaded the
stered E.S.B.’s *13 This built jury. would be
province appeal next and I dissent.
in error
2007 SD the Petition for REIN the Matter of OF Richard J. HOPE
STATEMENT Attorney
WELL, at Law. as an
No. 23366.
Supreme of South Dakota. Court Nov. 2006.
Argued July
Decided