State v. ThomasState v. Thomas
- Reporters:
- ,
- Before:
- Hertz
This is a criminal appeal from a judgment and sentence in Beadle County, entered on a jury verdict, which found the appellant guilty of rape in the third degree and sentenced him to serve a term of ten years in the South Dakota State Penitentiary. We affirm.
On July 31, 1984, Eugene J. Thomas, (Thomas), was charged with three counts of rape pursuant to
The first incident and the one upon which Thomas was convicted occurred in mid-June of 1982. The circumstances surrounding this incident included not only the defendant and his step-daughter, Phyllis Thomas, (Phyllis), but also Phyllis’ friend Toni Severson, (Toni), who was residing with the Thomas family at the time.
Phyllis had experienced problems with her parents for many years and had been involved with the juvenile court since she was 11 years of age. Thomas and his wife Vicki Thomas, (Vicki), who is Phyllis’ natural mother, voluntarily terminated their parental rights over Phyllis in 1983 due to their inability to cope with her violent temper and attempts to run away from home. Toni Severson moved into the Thomas home at the end of May 1982. She had experienced similar trouble with her parents and had spent the previous year living in foster homes.
Thomas, Phyllis and Toni were together in the living room of the Thomas residence on the morning of the first incident. At that time, Phyllis was 13 years of age and Toni was 17 years of age. Vicki Thomas was in the hospital during this period. Thomas and Vicki were divorced at the time of trial.
Based on Phyllis’ testimony the June 1982 incident was reconstructed as follows. Thomas, Phyllis and Toni were watching television. Thomas and Toni were seated together on the south couch and Phyllis was seated on the east couch. Sometime around 10:30 a.m., Toni began making sexual advances toward the appellant which culminated in Thomas putting his finger in Toni’s vagina. Phyllis remained in the room and acted as lookout while this activity took place. Thereafter, Phyllis went into the kitchen to fix lunch. Shortly after the parties had eaten their meal, they were all once again seated in the living room watching television. Similar to Toni’s conduct that morning, Phyllis began making sexual advances toward Thomas. According to her testimony, Thomas responded by fingering Phyllis in an identical manner. Later on that same afternoon, Toni again initiated sexual acts with the appellant. This time, however, their activity commenced with digital penetration and concluded with Toni and Thomas having sexual intercourse in his bedroom. Again, Phyllis served as the lookout.
The second and third rape incidents purportedly occurred in June and July of 1983,
Over defense counsel’s objection, Phyllis was permitted to testify that subsequent to the third rape incident in July of 1983, she and Thomas began having sexual intercourse. At trial, Thomas testified that none of the three incidents involving Phyllis ever took place because he was away from Huron on truck driving excursions at the time. Additionally, he denied ever having any kind of sexual contact with her whatsoever. Thomas admitted, however, to having sexual intercourse with Toni.
Toni testified in connection with the first rape incident that Thomas did not put his finger in Phyllis’ vagina but only touched her breasts. She admitted, however, telling the prosecutor otherwise just two days earlier. Additionally, Toni acknowledged making sexual advances toward the defendant and having sexual intercourse with him.
The issues on appeal will be separately stated and so treated.
I
WHETHER EVIDENCE OF APPELLANT’S ‘OTHER (SEXUAL) ACTS’ WAS ADMISSIBLE?
Over defense counsel’s objection, the trial court admitted evidence that placed the appellant in the family home on the day the first alleged rape took place. This evidence showed that Thomas and Toni Severson engaged in two separate sexual encounters while Phyllis was present or nearby. The digital rape of Phyllis allegedly occurred during the interval between Thomas and Toni’s two sexual encounters. Thus, there can be no dispute that this evidence was relevant because it tended to connect Thomas with the commission of the first rape.
A trial court has within its power the ability to admit evidence of other crimes, wrongs, or acts, so long as the evidence is relevant.
State v. Means,
363 N.W.2d 565, 568 (S.D.1985). Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value.
State v. Johnson,
316 N.W.2d 652, 654 (S.D.1982). If the trial court determines that the evidence is relevant, it must then decide whether the probative value of the evidence substantially outweighs its prejudicial effect in compliance with
Using the foregoing principles as guidelines, we initially examine whether the evidence at issue herein was admissible under the statutory exceptions codified in
Generally, evidence of crimes or acts other than the ones with which a defendant is charged are inadmissible. The general rule and its exceptions are set forth in
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Here, the trial court had the discretion to admit evidence of Thomas’ sexual activity with Toni if the evidence fell within one of the enumerated exceptions and was not unduly prejudicial. Thomas argues that admission of the “other acts” evidence was not relevant to any of the foregoing statutory exceptions. Moreover, Thomas contends that this evidence unfairly prejudiced him in the eyes of the jury. He urges that any probative value gained from the evidence was far outweighed by its inflamma
We disagree. Thomas put his identity in issue when he denied the charges, and tried to establish an alibi by stating that he was out of town on truck driving trips when the incidents occurred. Indeed, he denied ever having any sexual contact with Phyllis whatsoever. It follows, therefore, that the evidence served the purpose of proving the appellant’s identity.
Our ruling herein is supported by substantial authority from other jurisdictions. Thus, in Sanford v. State, 76 Wis.2d 72, 250 N.W.2d 348 (1977), the defendant appealed his conviction for rape. The Wisconsin Supreme Court stated that since the defense here was alibi, the sole issue at the time of trial was identity, i.e., whether this defendant committed the rape against the complaining witness. In affirming the trial court, therefore, the court held that a prior act of sexual perversion against another person was admissible on the issue of identity only. Similarly, in People v. Williams, 115 Cal.App.3d 446, 171 Cal.Rptr. 401, 404 (1981), the defendant was convicted of numerous sexual and related crimes against four female victims. He denied committing any of the charged crimes. The trial court admitted evidence of two uncharged, but similar sexual offenses that the defendant allegedly committed five years earlier. In affirming the trial court, the court held that, “evidence of other sex offenses having distinctive, similar characteristics to those charged is generally admissible on the issue of defendant’s identity if such offenses are not too remote in time, are sufficiently similar to the offense charged, and are committed upon persons similar to the prosecuting witness.” Thereafter the court found that the similarities between the prior and charged offenses were striking, and thus, highly probative on the issue of defendant’s identity.
The defendant in State v. Freeman, 303 N.C. 299, 278 S.E.2d 207, 209 (1981), appealed his conviction for first-degree rape, sexual offense and first-degree burglary. Not unlike Thomas in the instant action, the defendant in Freeman denied the charges, and tried to establish an alibi through several witnesses. The trial court admitted evidence of defendant’s prior séx-ual misconduct with another person who testified at trial. In affirming the trial court’s admission of this testimony as substantive evidence of defendant’s guilt, the North Carolina Supreme Court stated that the defendant’s identification was the principal issue, because although the complaining witness positively identified the defendant, his evidence of alibi made the question of whether defendant was, indeed, the perpetrator the “very heart of the case.” See also: People v. Sievers, 56 Ill.App.3d 880, 14 Ill.Dec. 509, 511, 372 N.E.2d 705, 707 (1978) [“Since defendant’s identity was in issue, evidence of other crimes — whose characteristics yielded a distinct and unique combination when considered together and viewed in toto — was properly introduced to establish this element.”] State v. Howard, 57 Ohio App.2d 1, 385 N.E.2d 308, 313 (1978) [“Scheme, plan, or system evidence is admissible when the identity of the perpetrator of the crime is in issue.”] State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976); White v. State, 533 S.W.2d 735 (Ct.Crim.Apps.Tenn.1975).
Furthermore, in State v. Johnson, supra, we wrote that the two principal factors bearing upon the admissibility of “other acts” evidence in regard to the identity issue, are the sequential relationship between the “other acts” and the offenses charged, and the modus operandi employed. Thus, we held that where incidents are closely related in time and similar in modus operandi, evidence of other crimes is frequently admissible on the question of defendant’s identity. Here, evidence of Thomas’ sexual exploits with Toni underscored the similarity between his alleged activity with Phyllis, and in doing so, corroborated her testimony by establishing a common plan or modus operandi.
Under the
Johnson
and
Williams
opinions,
supra,
Thomas’ sexual conduct with Toni and his purported activity with Phyllis
Closely related to the instant fact situation is our decision in
State v. Means, supra,
wherein the defendant was convicted of sexual contact with a child under the age of 15. On appeal, Means challenged the admissibility of the testimony of two girls, one of whom was the prosecutrix’s sister, Marcie. Evidence showed that both girls had been similarly violated. In affirming the trial court’s admission of the evidence, we found relevant the similarity between the prior acts with the two witnesses and the current crime charged. Furthermore, Marcie testified that Means touched her on the same automobile trip during which it was alleged that he touched the prosecutrix. Inasmuch as Marcie’s testimony indicated an incident nearly contemporaneous with the crime charged, we held that the “other acts” evidence was admissible to show defendant’s intent, motive, opportunity, state of mind, preparation, plan, knowledge, or absence of mistake as provided in
Here, the evidence at issue concerned acts which occured on the same day in June of 1982. This tends to indicate that they were carried out nearly contemporaneous to the alleged rape of Phyllis. Furthermore, this evidence revealed a marked similarity between the appellant‘s prior digital penetration of Toni and his later conduct with Phyllis. Not only did both incidents occur in the same room and within several hours of each other, but Thomas’ use of a “walking” motion with his hands to get underneath each girls’ underwear, as well as massaging and penetrating their vagi-nas with his finger, were also common features to both incidents. Thus, under the Means decision, supra, the “other acts” evidence was probative of Thomas’ intent, motive, opportunity, and state of mind to satisfy his sexual urges with young girls and to show his unnatural preoccupation with such sexual acts.
The appellant’s substantial reliance on this court’s opinion in
State v. Houghton,
272 N.W.2d 788 (S.D.1978), is considerably weakened by our decision in
State v. Willis,
370 N.W.2d 193 (S.D.1985). In
Willis,
we wrote that the term “modus operan-di” is included within the “plan” exception in
Finally, the jury was given limiting instructions as to the proper use to be made of the evidence. Juries are presumed to follow instructions of the trial court.
State v. Reddington,
80 S.D. 390, 125 N.W.2d 58 (1963). We hold, therefore, that the trial court did not abuse its discretion in admitting the evidence under
II
WHETHER THE AFFIDAVIT OF VICKI THOMAS WHICH CONTAINED AN ALLEGED ADMISSION OF APPELLANT WAS ADMISSIBLE FOR IMPEACHMENT?
Thomas argues herein that it was error to admit the affidavit since it did not impeach Vicki’s testimony, and because impeachment is not permitted on a collateral issue. We disagree.
In State v. Gage, 302 N.W.2d 793, 798 (S.D.1981), this court enunciated four requirements for consideration pursuant to the use of prior inconsistent statements for impeachment purposes, as provided in United States v. Rogers, 549 F.2d 490, 495 (8th Cir.1976). They are as follows:
1) Inconsistency: The statements must be inconsistent.
2) Relevancy: The inconsistency must relate to a matter of sufficient relevancy that the prosecution’s case will be adversely affected if the inconsistent testimony is allowed to stand.
3) Compliance withSDCL 19-14-24 and 19-14-25: The prior statement must, on request, be shown or disclosed to opposing counsel, and if extrinsic evidence is to be used to prove the prior statement, the witness must be afforded an opportunity to explain or deny it, and the opposing party must have an opportunity to interrogate the witness about it.
4)Limiting instructions: The trial court must adequately instruct the jury about the limited purpose for which the prior inconsistent statement is admitted.
The record reflects that the requirements set forth in Gage were met in the case at bar. Vicki’s testimony clearly contradicted her statements in the affidavit which were sworn and given under oath. Moreover, in the affidavit Vicki stated with particularity that Thomas told her that he had “fooled around” with Phyllis prior to May, 1983. At trial, however, she indicated otherwise. There can be little dispute that the two statements are inconsistent.
Nor can it be argued that the inconsistent statement was irrelevant. Count I of the information accused the appellant of raping his step-daughter in June of 1982. Vicki’s statement related to the time period prior to May of 1983. Thomas was convicted upon Count I but not upon Counts II and III. It follows, therefore, that the State’s case would have been adversely affected had Vicki’s testimony been allowed to stand.
Similarly, both
Finally, the trial court instructed the jury on impeachment by prior inconsistent statements via South Dakota Pattern Jury Instructions, (Criminal), 1-17-8. We find that this instruction adequately informed the jury as to the limited use to be made of Vicki’s statement. Given the affidavit‘s highly prejudicial character, we conclude
Accordingly, in view of the application of State v. Gage, supra, to the case at bar, we hold that the trial court did not abuse its discretion in admitting Vicki Thomas’ affidavit.
III
WHETHER THE SOCIAL WORKER’S REPORT WHICH CONTAINED HER OPINION OF THE VICTIM’S VERACITY WAS ADMISSIBLE?
Karla Gnirk, (Gnirk), was a social worker for the South Dakota Department of Social Services. As such, she was a case supervisor for Phyllis. During the course of her testimony she identified a written report that she had prepared on June 19, 1981. A portion of that report dealt with Phyllis’ storytelling and lying. The trial court refused to admit it on the grounds of relevancy. However, Gnirk was permitted to answer defense counsel’s question as to whether she had made any notes in regard to Phyllis’ lying. On appeal, Thomas argues that the report should have been admitted in reliance on
Initially, we note that the trial court advised both counsel that the issue of Phyllis’ credibility rested with the jury. We agree, and thereby find that Gnirk’s report was properly excluded on the grounds of relevancy. Furthermore, the record reveals that defense counsel successfully admitted evidence of this type through other means. Thus, we find that admission of Gnirk’s report would have been merely cumulative. We hold, therefore, that the trial court did not abuse its discretion.
IV
WHETHER THE PSYCHOLOGIST’S OPINION TO THE AFFECT THAT APPELLANT HAD ADMITTED RAPING THE VICTIM WAS ADMISSIBLE?
Duane Majeres, a clinical psychologist, counseled the Thomas family pursuant to Phyllis’ allegations that the appellant had raped her. Majeres testified that during their sessions, Thomas never verbally admitted fingering his step-daughter. However, Majeres sought to testify that it was his impression that the appellant made such an admission. A defense objection was sustained. Thereafter, the State asked Majeres if it was his opinion that Thomas had admitted it, and again a defense objection was sustained. The State then attempted to get Majeres’ opinion into evidence by asking him if he would have continued counseling the family absent an admission. The trial court disallowed this testimony.
The State left this topic only to return to it a short time later during Majeres’ examination. Thus, when the prosecutor resumed this line of questioning, he succeeded in admitting Majeres’ opinion over defense counsel’s objection.
On appeal, Thomas argues that the trial court erred by permitting Majeres to testify that in his opinion, the appellant had admitted raping Phyllis. We agree.
There can be no question that admissions against interest are competent evidence.
See:
We hold that the trial court erred in admitting Majeres’ opinion testimony. However, given the fact that the evidence against Thomas was substantial, we find that Majeres’ testimony was merely cumulative to other properly admitted evidence. Accordingly, we conclude that admission of the opinion evidence was erroneous, but the error was not prejudicial to the appellant,
V
WHETHER THE VICTIM’S TESTIMONY WHICH ALLEGED SUBSEQUENT ACTS OF SEXUAL INTERCOURSE WITH APPELLANT WAS INADMISSIBLE DUE TO THE TRIAL COURT’S FAILURE TO PERFORM THE ‘BALANCING TEST’?
On cross-examination, Thomas stated that he never had any form of sexual contact with Phyllis at anytime in his life or her life. Thereafter, Phyllis was permitted to testify that between August and November of 1983, she and Thomas had engaged in sexual intercourse approximately 15 to 20 times.
Thomas now argues that the trial court failed to perform the “balancing test” under
We agree with the trial court’s‘ruling that Thomas’ own testimony “opened the door” to the State’s evidence. Thomas testified on direct and cross-examination that he never at anytime had sexual contact with his step-daughter. This being so, the State’s evidence was admissible to attack Thomas’ credibility under
VI
WHETHER THE PSYCHOLOGIST’S TESTIMONY WHICH CONCERNED ALLEGATIONS OF SEXUAL INTERCOURSE BETWEEN APPELLANT AND VICTIM WAS INADMISSIBLE HEARSAY?
Majeres was called as a rebuttal witness and asked by the prosecutor whether Phyllis had ever told him that she had sexual intercourse with Thomas. Defense counsel objected to the question, and claimed that it was a privileged communication under
Although no objection was interposed at trial, Thomas argues that this testimony was inadmissible hearsay under
We accordingly affirm the trial court.
MORGAN and WUEST, JJ., and DOB-BERPUHL, Circuit Judge, concur. HENDERSON, concurs in result. DOBBERPUHL, Circuit Judge, sitting for FOSHEIM, C.J., disqualified.