*1 Althоugh tive truly alternative. I believe evidence, the trial court in a erred rule of Dakota, STATE Plaintiff depicted above, I have error Appellee,
harmless when one reviews overwhelm- ing evidence that these children pendent neglected children and need a Ray SIELER, William chance life to being flourish other than Aрpellant. raised deprivation. environment of No. 15182. grounds An error is not for reversal unless prejudicial. M.W., Matter Supreme Court of South Dakota. (S.D.1985). N.W.2d 889 In an action tried to the court jury, without a many factors Sept. 18, Considered on Briefs 1986. which would be considered in a Decided Nov. case tried to will not be so held. Sabbagh v. & Business Men’s Profеssional Co., Ins. S.D. Life error, prejudicial, to be probability produc- so
be such all effect the final result and ed some rights party thereby affected the M.B., 288 it. assigning Matter of only necessary (S.D.1980). It convincing to find clear the court parental evidence that termination was the least restrictive alternative rights available serve the children’s best inter- ests.
SABERS, result). (concurring Justice only. concur the result The social testimony relating to the worker’s child’s play-acting, (improperly denominated “non- conduct”)
assertive constitutes inadmissible notes, hearsay. majority correctly As the conduct if it is hearsay includes nonverbal SDCL 19-16- as an assertion. intendеd Bawdon, N.W.2d at l(l)(b); with the anatomi- Here, the child’s behavior prove offered to dolls was cally correct implicit in the abuse. This state- child’s verbal exclusion of court’s Al- activity. same during the made ments erred in the trial court though majority furthers testimony and error, supporting the evidence termi- parental Father’s nation Mother’s and rights was substantial. The social work- merely
er’s cumulative re- Thomas, sulted harmless error. State v. 239-240 *2 Tinan, Padrnos, Taylor D.
James Mitchell, Taylor, Smith & for defendant appellant. Gormley, Deputy Atty. Grant E. Chief Pierre, Gen., plaintiff appellee; Gen., Pierre, Meierhenry, Atty. Mark V. brief.
GILBERTSON, Judge. Circuit
ACTION County jury
A Davison convicted William (defendant) Ray Sieler of sexual contact age with a minor under the of fiftеen years. SDCL 22-22-7. He raises two is- appeal. sues on We affirm both.
FACTS Nancy (mother)
Defendant and Schrank parents (daughter). are the natural of D.S. Daughter placed custody in mother’s parents her when were divorced in 1979. Mother remarried and daugh- mother and up housekeeping ter stepfather set with Vernon, Mt. South Dakota. 1983, daughter June went tо Daughter
to live with defendant. lived him with until December when she Mitchell, Dakota, moved back mother’s insistence. Defendant followed. Upon returning Dakota, daugh- to South ter and defendant lived with boyfriend. older and her sister The four lived in a two bedroom mobile home in January Mitchell from until day, March 1984. On that mother dis- daughter sleeping covеred and defendant’s arrangements moved mother’s home Mt. Vernon. July returned Michi- gan August and lived with defendant until 1984 when she moved to Mt. Vernon to live Daughter mother. asked mother for professional help. She did not tell mother specific problem. nature of her In the 1984, daughter fall of informed a social sexually worker that she had been molest- ed defendant. The social in- worker County formed the Davison sheriff’s office. department The sheriff’s interviewed investigated matter; fendant and ulti- xnately charged defendant was goal convict- Defendant’s was to establish that ed. daughter had made allegations of sexual abuse occasions which were later Bоth and defendant testified found be untrue. The trial court ruled slept that they living in the same bed while that such cross-examination and evidence in the mobile home in They, Mitchell. also irrelevant, and if proba- testified that a up blanket was rolled outweighed by tive value was its prejudicial placed between them on the' twin bed. *3 pressed effect. When court, the trial Daughter nightgown wore a panties to defendant admitted that there was no find- bed, only while defendant wore his under- ing concerning the truthfulness of the shorts. charges against the other man in the Iowa Daughter testified that defendant fon- proceedings. There is no also evidence in dled vagina her breasts and while she tried any the record to show that investigation sleep. to She also testified that defendant judicial determination was made con- Daughter kissed her breasts. further testi- cerning the charges allegedly against made fied committing that while defendant was stepfather, her charges if indeed the these he heavily аcts breathed and told her place.1 made the first that had young she become a beautiful reviewing lady. Daughter evidentiary the trial court’s testified that defendant issue, ruling concerning this every committed the upon same acts her standard night every night applied review that is during or at least whether the quite her first visit trial court to abusеd discretion. often State v. during Pedde, 41, (S.D.1983); 334 why her second visit. When 43 asked State report she repeated Houghton, 788, (S.D. did not this v. abuse earli- 272 N.W.2d 790 er, daughter 1978). stated that she loved her fa-
ther, him, trusted and did not want to see making such review we are bound get him into trouble. rule question that the is “not wheth- er judges this court would have ISSUE ONE original ruling, an made like but rathеr The first issue is whether the trial court mind, judicial whether we believe by prohibiting abused its discretion defend- circumstances, view law and the cross-examining daughter ant from about reasonably could have reached con- that alleged previously statements she had clusion.” charging made other individuals with sexu- Rose, 894, (S.D. State 324 v. 895-96 ally molesting her. 1982), (quoting Slagle F.M. & Co. v. Bush Immediately prior trial, to nell, 250, 254, state 914, 70 S.D. 16 N.W.2d 916 moved to restrict defense counsel’s use of (1944)). keep One must also that mind hearing “child in need of assistance” held extent of cross-examination with re “[t]he charged Iowa. Defendant that spect appropriate inquiry to an subject of alleged proсeeding in the Iowa that another within sound discretion the trial man committed sexual indiscretions States, court.” v. United 282 U.S. Alford alleged her. Defendant further 694, 624, 75 S.Ct. L.Ed. daughter also her accused now deceased (1931). See also State v. Wounded stepfather molesting her. Head, sought sought to cross-examine In this defendant to attack purported allegations about daughter’s credibility by asking these her about attempt impeach alleged to credibility. regarding her truthfulness cases, adequately It is difficult to this into address issue duced evidence. In future defense upon the based lack of information contained in counsel should see that the contains the record any failed record. Defendant to make offer sought be to used to allow this court bring he as what evidence thorough conduct a review of issue. jury. before Iowa file was not intro- charges turning of sexual molestation committed fendant instead the trial into one —
against
dealing
Anderson,
her.
type
When
with this
the victim.
v.
cross-examination,
inquire only
—, —,
can
one
Mont.
P.2d
specific instances
jurisdictions
adopted
“into relevant
of con- Other
have also
Thus,
Raines,
duct.”
19-12-6.
admis-
Hughes
standard.
Id.
ISSUE TWO
Applying
Kringstad ruling
to the
The second issue is whether the trial
require
case at
would
bar
court
its
abused
discretion
proven
sexual assault accusations be
false
evidence of other instances
of
con-
they
before
become
The Kring-
relevant.
daughter.
tact between defendant and
quantum
proof
stad court defined the
trial,
Prior to
the state filed a motion
required
falsity
to be that
previous
of a
seeking to have evidence of other bad acts
charge
proven
must be
“demonstra-
of defendant with
admitted into
bly
State,
Id. (Citing
false.”
Little v.
413
pursuant
evidence
19-12-5.2
The
639,
(Ind.App.1980)).
N.E.2d
643
We con-
state
to introduce evidence that de-
cur and hold that
to be admissible for
fendant had sexual contact with
purposes,
prior
cross-examination
sex
they
Michigan.
both times
lived in
The
demonstrably
crime accusation must be
findings
trial court
entered its
false
it can
before
be considered relevant.
fact and conclusions of law and concluded
using
basis,
When
the “demonstrably
that on a limited
evidence
other
standard,
false”
mere
denial
the accusa
bad acts should be admitted.
enough,
tion
Kringstad, supra.
is not
It is
Means,
565,
In State
363
v.
N.W.2d
568
enough
complaints
not
if the
arguably
(S.D.1985),this court stated:
false,
736,
Demos,
733,
v.
94 Wash.2d
State
ruling
admissibility
of evi-
988,
(1980).
619
970
In some
P.2d
instanc
crimes, wrongs,
acts,
dence of
or
other
guilty
es even a not
verdict on an asserted
trial court must first determine relevan-
charge may
enough
false
not be
to make
cy.
Wedemann,
v.
N.W.2d
[State
]
[339
relevant,
accusations
State v.
(S.D.1983)
“Any
115
fact
].
Schwartzmiller,
107 Idaho
685 P.2d
tends to connect an accused with the
833
of a crime
commission
is relevant and
“demonstrably
probative
Dace,
The
false”
has
standard
value.”
v.
State
appropriately keeps
(S.D.1983),
the focus on the de-
quoting
presses
opinion
The admission of other "bad acts" under SDCL
no
in this decision on the effect
accepted
juris-
is well
19-12-5
in this and other
§ 19-12-5
allow evidence of other "bad
types
prosecutions.
in cases
dictions
of sex crimes. This court ex-
acts” in other
of criminal
Johnson,
rated
other
Grey
State
evidence.” State v.
from
(S.D.1982).
Owl,
(S.D.1982).
“Such other incidents are
316 N.W.2d
It
they
plan
system
require
material if
or
of would make no sense
show a
corrobora-
tion of sexual “bad act”
constituting
testimony,
criminal action and acts
con
while
allowing complaining
witness’s
tinuous offenses.” Id.
If
trial court
noncorro-
testimony
borated
to be
relevant,
sufficient for a
determines
evidence
jury to convict a defendant of a
probative
must then
sex crime.
decide whether thе
substantially
value of the evidence
out
The admission of other “bad acts”
weighs
If,
effect.
al
governed by
SDCL 19-12-5.3
though
the court decides its
relevant, “[ejvidence
If
wrongs
of other
or
produce
prejudice
admission will
unfair
acts is admissible for the
purpose
limited
defendant,
to the
it cannot be admitted.
motive,
proving
opportunity, intent, prepa
Wedemann,
Dace, supra;
supra; State
ration, plan, knowledge, and a course of
Shell,
(S.D.1983);
v. Iron
for such evidence could be con- prеsume sidered. We fol- instruction. limiting lowed Reddington, 80 S.D. Wesley
Thus, COCHRUN, Applicant we find the trial court did not Appellant, abuse its discretion in the other evidence. judgment of conviction is affirmed. SOLEM, Warden, Herman Penitentiary, Dakota State MORGAN, SABERS, JJ., FOSHEIM and Respondent Appellee. concur. No. 15219. HENDERSON, J., concurs result. Supreme Court of South Dakota. GILBERTSON, Judge, Circuit Sept. Considered Briefs WUEST, C.J., disqualified. Decided Dec. HENDERSON, (concurring in Justice re- sult). agree entirety opinion. with the of this
However, reference, I would strike the