*1
happen
this will
ther,
is no indication
there
parenting TOOHEY, Alan Defendant Leonard Z.Z., 494 In re N.W.2d ize. See Appellant. care, (S.D.1992). has lived in P.S.E. foster No. 26073. where, reports, flourishing, all she is age 2009 at the of 12 since her removal Supreme Court South Dakota. indicates that her The record months. on Briefs Jan. Considered adopt wish to her. Her parents foster correspondence urging sent tribe has 20, 2012. Decided June parents. foster The trial by the adoption that termination was court’s determination alternative commensu-
the least restrictive interests was not with P.S.E.’s best rate clearly erroneous.
CONCLUSION Father with ac- provided DSS tive, placement toward reasonable efforts him California. Those
of P.S.E. with achieving any efforts were unsuccessful goal. The trial court progress toward finding that the least restric- did not err in termination. The or- tive alternative was terminating parental rights Father’s der affirmed. GILBERTSON, Justice, Chief KONENKAMP, ZINTER, and WILBUR, Justices, concur.
KONENKAMP, Justice. juryA found Leonard Alan Too- hey guilty degree rape of first of a child. appeal, On he asserts that the child victim was not available for cross-examination as Clause, required under the Confrontation that the circuit court abused its discretion acts, when it admitted evidence of other there was insufficient evidence to *4 support proof penetration.
Background On June C.M. and her
[¶2.] ten), daughter, (age K.M. post went to the office. K.M. decided to wait in the car post while her mother went inside. In the office, Toohey. C.M. ran into He and his family wife had been friends of C.M.’s for years, but had not spending been as much together recently. Toohey time and C.M. exchanged Upon returning small talk. car, why her K.M. asked her mom she did Toohey anymore. explained not like C.M. things that she did not like some of the veteran, Toohey, military said in front of said, the children about the war. K.M. “Mom, I hate him.” C.M. was shocked daughter’s questioned her statement and began crying. her. K.M. She asked her mother, you “Do remember when we went fishing?” responded, “Yeah.” K.M. C.M. said, [Toohey] “Remember when me and something the fish?” went to look for for that and K.M. C.M. remembered had to an abandoned farmhouse to gone rope string look for some fish. KM. said, and called me his “He kissed me said, girlfriend.” “Is that it?” secret C.M. asked, “Well, said, what K.M. “No.” C.M. “He happened?” replied, K.M. had else my my panties pull me down shorts General, Marty Jackley, Attorney J. and he touched me down there.” Strohman, Attorney John M. Assistant office, C.M. called the sheriffs [¶3.] General, Dakota, Pierre, Attorneys South days, KM. taken to and within a few plaintiff appellee. for Advocacy Rapid City. the Child Center Reindl, There, Strand, Dako- Spearfish, Staci L. South Hollie a forensic interview- ta, er, videotaped interview of Attorney appellant. for defendant and conducted Toohey’s ported actions dur- the incident to her K.M. described mother. The
K.M. fishing much the same as she ing trip State asked the court to allow admission of She would not or could Toohey’s did to her mother. kissing act of K.M. at KM.’s pudendum, a name her but she give house on the grounds the kiss was that it could be called agreed with Strand motive, intent, prove opportuni- relevant to child, diagram On a of a “private.” her ty, and lack of mistake or accident. See pointed pudendum she at the and said (Rule 404(b)). Toohey SDCL 19-12-5 re- “fin- her there with his Toohey touched sponded subsequent that this act was in- asked what it felt like when ger.” When sufficiently rape charge connected to the there, K.M. said “it Toohey touched any was not relevant material fact asked, you “do know how hurt.” Strand any at issue. He further asserted that girls privates on our on us we have that probative value of this evidence was sub- [pointing pudendal to the right line there stantially outweighed by the un- danger of diagram], [Toohey’s] area on did hand (Rule See SDCL 19-12-3 prejudice. fair something do with that line?” When 403). subsequent The court found the act respond, again, child did not Strand asked *5 intent, prove opportunity, admissible to [Toohey’s] something hand do with “[D]id accident, and absence of mistake or said, put that line?” K.M. then “[H]e unfairly prejudicial. asked, finger there.” “After [Too- Strand K.M. [¶ 7.] testified at trial. When the hey] your you private, bothered did notice specifically Toohey State asked her what you potty?” went anything when K.M. her, did to respond, she often failed to replied, “It kind of hurt.” following can be seen in the excerpts from K.M. also described a later inci- her direct examination: that happened dent to Strand when Too- you begin State: Can kind of from hey family’s help home to fix a came to her you where start to feel uncomfortable? Toohey car. asked to come into a K.M. you whyOr felt uncomfortable? room, Toohey room to see her cat. K.M.: pull my Because he had me down on her mouth and kissed her told her “not everything. shorts and anybody,” saying to tell she was his “se- girlfriend.” cret Okay. you State: Where were at when County Butte Sherriff Fred that happened?
Lamphere Toohey. interviewed The audio By K.M.: the table. played of the interview was recorded and Toohey jury. fishing for the admitted to By Okay. State: the table. You he said family being with and to HM.’s alone with you had—Did he tell to do that? together. K.M. in a house He also admit- K.M.: Yes. being help ted to at KM.’s residence to Okay. And you State: after he told work on a car. But he denied that he shorts, pull your down what happened? her, K.M., touched kissed or called her his He, um,— K.M.: girlfriend during secret either time he was n n n with her. Okay. you’re State: standing So was indicted on one count you pull your table and he tells shorts degree rape first violation of SDCL down, happened? and then what 22-22-1(1). The date of the offense was K.M.: I did. alleged spring “the or summer of 2007,” years three before KM. first re- State: You did? say? he What did State:
K.M.: Uh-huh. happened? anybody. He told me not to tell And then what K.M.: Okay. State: my under- pull me down He had else? K.M.: State: What wear. girl- K.M.: He said I was his secret that, you do And then did Okay. State: friend.
too? head.) (Nodding
K.M.: you kind of tell us where on Can State: that, after he did Okay. And State: body? something happen Did your you did do? what body you didn’t like? your the table. me on put K.M.: He (Witness crying, pause.) brief K.M.: sitting up or you Okay. Were State:
laying down? Okay. you Do remember what State: sitting up. first I was K.M.: At at the you happened told Hollie [Strand] happened? Okay. Then what State: house? layme down-
K.M.: He had my I mom. thing K.M.: The same told down, you laying were When State: your mom? thing you Same told State: up or down? your were shorts head.) (Nodding K.M.: K.M.: Down. that? What was State: your underwear? And State: (Brief crying.) pause, K.M.: witness *6 head.) (Nodding K.M.: that, [K.M.]? What was State: Down? State: (Witness crying. response.) No K.M.: head.) Yes. (Nodding K.M.: [Toohey] did do? What State: [Toohey] when And where State: (No response.) K.M.: laying down? you were you’re going to be you Do think State: In front of me. K.M.: jury happened? what tell the able to By the table? State: (No response.) K.M.: K.M.: Uh-huh. $ $ n if he Okay. you Do remember State: something— [Toohey] do Did State: you? anything to said something with? [Toohey] do did What K.M.: No. K.M.: His hand. anything? say He didn’t State: hand? His State: head.) I I don’t know. (Shaking K.M.: head.) (Nodding K.M.: don’t believe so. with his hand? did he do What State: you anything while Did he do State: (No response.) K.M.: laying were down?
K.M.: Yes. * * [*] what Okay. you [Too- he do? tell us What did Can State: State: with his hand? hey] did (No response.) K.M.: (No ... response.) K.M.: [Toohey] us what you tell State: Can fishing, Okay. your way back On State: his hand? did with [Toohey] say anything you? did (No response.) K.M.: K.M.: Yes. head.) body part (Shaking know what it K.M.: you Do
State: was? you you No? Do remember what State: head.) (Nodding K.M.: said her? head.) do? ... You
State: (Nodding K.M.: right. you All Do what the State: know you say What did to her? ... State: is, it body part, what where it is? Hollie; okay. thing you It’s Same told right? it K.M.: is. Where head.) (Nodding K.M.: Huh? State: Okay. you say? State: What did where it K.M.: I know is. K.M.: He me. know where it touched State: You is? head.) (Nodding you?
K.M.: State: He touched head.) you Do have a for it or (Nodding State: name K.M.: heard it you anything have ever called you Did say State: where? you
before? is it? You said Where head.) (Shaking K.M.: it is. know where Where is it at? you you State: Do remember —Do re- (No response.) ... K.M.: you if member that’s all said? He you?
touched you State: Do remember how made head.) (Nodding K.M.: you feel? State: With his hand? K.M.: Uncomfortable. head.) K.M.: (Nodding you State: Uncomfortable? tell us Can And said it State: earlier we wasn’t body you what it part was? Have ever shirt. your something heard it called before? head.) (Shaking K.M.: head.) (Shaking K.M.: your Was it on back your State: side or you okay. State: That can—It’s *7 front side? ... side? What you say you here can whatever word K.M.: Front. want. C.M. 8.] also [¶ Strand testified. shoulders.) (Shrugging K.M.: repeated They what K.M. had told them. Okay? okay. State: It’s said C.M. that K.M. told her Toohey (No response.) K.M.: her, girlfriend, kissed called her his secret he and that touched her “down there.” Okay. you State: Have a ever heard testified her Strand about interview of body part name for what it was? Have K.M., and the video of the interview was you ever heard name for it? played for the jury. (No head.) response.) K.M.: (Shaking case, At the the [¶ 9.] close of State’s State: You can—You can answer out Toohey judgment moved for a acquittal. yes or no. Did — n He asserted that the loud. kind of you It’s failed to pres- you Have ever anything heard it called penetration ent evidence of sufficient to
before? the rape charge. response, sustain the K.M.: No. State contended that because K.M. testi- you mom, State: No? When your Toohey hurt,” told her fied that touched and “it you what call anything jury did'—did it when raped the could infer that you your motion, told mom? K.M. The court denied the and the
127
degree
of first
lates the
Clause of the
Toohey guilty
Confrontation
Sixth
jury found
twenty
if
years
was
to
Amendment
the declarant is unavailable
rape. He
sentenced
testify
to
at trial and the defendant had no
penitentiary.
in the
previous opportunity to cross-examine.
grounds
Toohey appeals on
10.]
[¶
68,
Washington,
36,
541
v.
U.S.
Crawford
(1)
was
for cross-exami-
K.M.
unavailable
1354, 1374,
471,
739,
2658,
107
(quoting
479
399
S.Ct.
96
631
L.Ed.2d
California
(additional
1930, 1935,
(1987))
omitted).
149, 159, 90
U.S.
S.Ct.
26
In-
citations
(1970))).
489,
Although
deed,
this
L.Ed.2d
497
“includes
guarantee
confrontation
no
a
right
satisfied when
defen-
generally
every
is
prosecu-
that
witness called
full
given
opportunity
dant “is
and fair
to
a
giving testimony
tion will refrain from
that
probe
expose [a
infirmities
confusion,
witness’s]
by forgetfulness,
is marred
or
cross-examination,”
through
Delaware v.
Fensterer,
21-22,
474
evasion.”
U.S. at
Fensterer,
292,
474 U.S.
106 S.Ct.
at
inability
A child’s
295,
(1985),
a
15
when witness
88 L.Ed.2d
questions
penetration, by
answer
about
it-
young
there can be additional confronta-
self, does not
her
for
render
unavailable
if the
young
tional concerns
child is “too
purposes.
Bishop,
confrontation
State v.
subjected
frightened
and too
be
a
(1991).
15,
738,
Wash.App.
63
816 P.2d
743
thorough
or cross-examination.”
direct
The
in
spoke
16.]
decision
[¶
Crawford
159,
State v. McCafferty, 356 N.W.2d
163
categorical
almost
terms: “when the de-
(S.D.1984) (quoting United
v. Iron
States
appears
clarant
for
at
cross-examination
(8th Cir.1980)).
Shell,
633 F.2d
87
trial, the
places
Confrontation Clause
no
unavailability
South Dakota law defines
as
constraints at all on the use of
prior
including a
who is “unable to
declarant
be
testimonial
n.
statements.”
U.S. at 59
present
testify”
or
the trial because of a
9, 124 S.Ct. at
n. 9.
Several courts
or
“then-existing physical mental illness or
have taken this to
mean
even a wit
19-16-29(4). Thus,
infirmity.” SDCL
with
memory
ness
no
of the
in
events
unavailability
premised
witness’s
can
on
question
present
is nevertheless
and avail
limitations,
mental
physical
well as
ab-
able for cross-examination under Craw
sence.
Pierre,
State v.
277 Conn.
ford.
While
K.M. answered
(2006);
A.2d
499-500
State v. Gor
questions
surrounding particu
on all the
man,
(Me.2004);
854 A.2d
State
lars,
many
she did not answer
the pros
of
Holliday,
745 N.W.2d
567-68
questions
ecutor’s
on the
details
(Minn.2008);
477-78;
Biggs, 333 S.W.3d at
on the
rape especially
essential element
—
v. Legere,
N.H.
958 A.2d
penetration.
necessarily
This does not
(2008).2
969, 977-78
mean, however, that she was unavailable
for
purposes.
Here,
confrontation
“fact that
The
K.M. did
more than
unsatisfactory
witness’s
is-
simply appear
court. She
was able
does not render the witness unavailable.”
about
testify
when and where the incidents
(Mo.
State v.
Biggs,
333 S.W.3d
with
took
place,
leading
details
2011).
only up
rape,
The Confrontation Clause
to the
and what was said. On
guarantees
opportunity
cross-examination,
“an
for effective
defense counsel asked
cross-examination,' not
circumstances,
cross-examination K.M. about her family
her
activities,
way,
age,
is effective whatever
and to
her school
knowledge
*9
extent,
involved,
whatever
the
might
defense
wish.”
people
the various
her acquain
Owens,
wife,
United States v.
with Toohey
U.S.
tance
his
and
the aban
842,
(1988)
occurred,
Spurlock lying v. 675 315 lie down. While she was on the (Ind.1996); v. Floody, table, down, see also State 481 undressed from the waist Too- (S.D.1992) J., 242, (Henderson, 259 area) N.W.2d hey (pudendal her “touched” “front” Indeed, require there is no concurring). “it hurt.” Other courts have exam- having physical direct to ment of evidence ined similar facts. element an support each of offense: ele finding Those courts insufficient may ments inferred from other evi proof penetration of in these circumstances indirectly proving the dence element at emphasize any the absence of — Johnson, issue. v. Coleman U.S. touching, experience other than with no of —, —, 2060, 2064,182 L.Ed.2d 978 Hicks, pain. example, For in v. 319 (2012) curiam). (per In cases involving 84, 424, (1987), N.C. 352 S.E.2d 427-28 the victims, limited child child’s understand only put victim said that the defendant his exact ing of her anatomical features does penis Plenty in back of In the her. Ar- negate ability provide not the child’s rows, 65, 946 F.2d the court held insuffi- penetration circumstantial evidence that cient testimony the victim’s that the defen- John, occurred. United v. St. States 851 my dant touched her “from back my of (8th Cir.1988). 1096, 1099 F.2d Yet a con Johnson, 78, behind.” In State v. 334 S.C.
viction cannot be on suspi sustained mere 795, 512 (1999), S.E.2d 799 the victim said possibility cion or of guilt. United States the defendant “touched and “[i]t me” made Arrows, (8th 62, Plenty 946 F.2d 65 Commonwealth, me feel In bad.” Moore v. Cir.1991). (1997), 254 Va. 491 S.E.2d 742 the testified, [1123.] KM. When victim’s was that the defendant years she was ten old. Children of that vagina, rubbed “on” penis but the age vocabulary often the specifical lack prosecutor elicited no further details. And ly an penetration, describe act of sexual case, in one the expressed lack of pain but go “the victim need not into sordid touching from the significant. was deemed effectively detail pen establish that Torres, In State v. 105 Ariz. 464 P.2d etration occurred the during course of a (1970), the court “[t]here held was State, sexual assault.” See Wilson no proof slightest penetration,” of even the (2000) Md.App. A.2d specifically when the victim testified on (citation omitted). Through her trial testi cross-examination that what was done to mony and her statements her mother her did hurt. Strand, K.M. give was able to many contrast, surrounding rape. details She where the victim Toohey experienced in pain were alone a farmhouse. some genital She from the standing by was touching, table. had her several courts have concluded pull her shorts and underwear down. He penetration sufficient evidence of placed then her on a Mathis, table and told her to shown.4 In State v. 287 S.C. State, Atteberry 4. The dissent cites requires proof penetration statute of the (Ind.Ct.App.2009) N.E.2d factually as organ by organ.” "female sex sex male unsupported similar. But this multiple for Third, (a). § Ind.Code 35-42-4-1 Attebeny, First, case, reasons. fied, in our the victim testi- rape the defendant was for convicted of the Attebeiry, while the victim was de- organ (vagina) solely proof female sex on Second, ceased. South Dakota defines sexual trauma to the anus and evidence of semen in intrusion, "any slight, however the victim's underwear. Both the facts and any part body of the any object or of into completely law here are different. genital openings or anal per- of another body.” son's rape SDCL 22-22-2. Indiana’s
131
Rather,
(1986),
year
rape
is
a six
a
conviction
sustainable
540-41
S.E.2d
340
when there is circumstantial evidence of
the
touched
that
defendant
old testified
intrusion,
“any
slight,
any part
however
of
but could not remember
penis,
with his
her
object
the
of
body
any
of
or
into the
body.
it
her
put
had
inside
he
whether
genital
openings
per-
or anal
of another
found this
it hurt. The court
Yet she said
Here,
body.”
son’s
See
22-22-2.
SDCL
“intrusion,
of
evidence
some
sufficient
the
that Toohey’s
child victim indicated
Likewise,
at
slight.”
however
Id.
541.
area,
pudendal
“touch” was in her
and it
(Ala.
State,
699, 701
v.
629 So.2d
Swain
pain.
caused her
1993), the
ruled that “the victim’s
court
important
It
is
to remember
[¶ 27.]
penis
had ‘stuck’
that Swain
analysis
require
that our
not
us to
does
hurt
legs and that
it
[was]
between her
ask
that
]
ourselves whether we “believe[
jury
the
from which
sufficient evidence
the
at the trial
guilt
established
that
had actual
could have inferred
Swain
beyond a reasonable doubt.” Jackson v.
puden
labia
ly penetrated the victim’s
Virginia, 443 U.S.
99 S.Ct.
Kincaid,
124 P.
dum.”
State
(1979) (citation
2789,
SEVERSON,
(dissenting).
factually
Justice
While the examination of those
distinguishable
may
cases
in our
helpful
I respectfully dissent. “Our re
they
Indeed,
analysis,
are not controlling.
sufficiency
of the
of the evidence is de
view
presented
other courts
with facts analo-
Horse,
Plenty
2007
State v.
S.D.
novo.”
gous
this case
to
have held that the evi-
¶ 5,
763,
114,
764 (quoting
741 N.W.2d
penetration
dence of
was insufficient to
¶
63, 35,
Tofani,
v.
2006 S.D.
719
See,
a
support
rape.
e.g.,
conviction of
400).
391,
reviewing
When
a
N.W.2d
State,
601,
v.
Atteberry
911
611
N.E.2d
evidence,
insufficiency of
claim of
the
the
(Ind.Ct.App.2009) (overturning a convic-
“whether,
question
viewing
is
after
the
rape
tion of
because evidence
to
of trauma
light
the
most favorable to the
evidence
presence
the victim’s anus and the
of se-
any rational
of fact
prosecution,
trier
could
in her
men stains
underwear
insuffi-
was
have found the essential elements of the
cient
evidence
the defendant penetrat-
beyond
People
crime
a reasonable doubt.”
organ
ed the victim’s sex
penis,
with
¶
W.T.M.,
45,
15,
rel.
2010
ex
S.D.
785
required
applicable
under the
Indiana stat-
264,
J.H.,
re
(quoting
N.W.2d
267
In
2008
ute);
State,
Goolsby
54,
¶
517 N.E.2d
58
551-52).
549,
S.D.
756 N.W.2d
(Ind.1987) (holding that a victim’s testimo-
penetration
Sexual
is an essential element
ny
vaginal
that her
area felt
when
tender
rape.
of the crime of
SDCL 22-22-1.
she
after being
awoke
uncon-
knocked
intrusion,
penetration
“any
Sexual
how
during an
scious
attack was insufficient
slight,
any part
body
ever
of
of the
or of
penetration
of
evidence
a
support
to
con-
object
any
genital
open
into the
or anal
rape). Ultimately,
viction of
we must ex-
body.”
of
ings
person’s
another
SDCL
amine K.M.’s
at trial and
notes,
22-22-2.
majority
pen
As the
stateménts to the forensic interviewer to
can
etration
be inferred from circumstan
determine whether
supports
this
State,
evidence
Spurlock
tial evidence.
675
(Ind.1996).
jury’s finding
guilt
the
of
312,
beyond a reason-
However,
N.E.2d
315
this
able doubt. Even viewing this evidence in
uphold
cannot
Court
a conviction that is
State,
a light most favorable to
I
the
be-
suspicion
on a mere
possibility
“based
or
subject
lieve it is
to too much
Arrows,
speculation
guilt.”
Plenty
United States v.
(8th Cir.1991)
conjecture
support such
finding.
F.2d
a
(quoting
Virginia,
See
Robinson,
Jackson
443 U.S.
United States v.
782 F.2d
(1979)
(8th Cir.1986)).
N.W.2d
*13
400).
¶ 35,
at
K.M.’s
While
N.W.2d
testimony
Toohey touched
“front”
that
finding
support a
that
“it hurt” would
with
external contact
KM.’s
Toohey made
legally
insuffi
genitalia,
rape
a conviction
support
cient
it
degree
provide
did not
first
because
infer,
basis
be
jury with
reasonable
doubt,
yond a reasonable
on the
admitted
Based
evidence
occurred.
trial,
finding
jury’s
only
K.M. could
sexually penetrated
logical
It
speculation.
on
could
based
based on reasonable inferences that
ly be
beyond a
support
finding
guilt
would
Accordingly, I would
reasonable doubt.
matter of law the
hold that as a
support a conviction of
insufficient to
degree.
in the first
rape
SOUTH Appellant, tiff SORRELL, M.D., Matthew J. Appellee. Defendant and No. 26143. Supreme Dakota. Court South April 2012.
Argued June Decided