*1 prior to inter- ings completed
vention. 67,590,
Guidelines, Fed.Reg. C.l. Com- DeMon-
mentary. Trentatdue & See also We therefore
tigny, N.D.L.Rev. at 520. court did not err in that the trial
determine application of Tribe to inter-
granting the proceedings. during appellate
vene reasons, foregoing we affirm
For all the court as to all disposition appeals.
All the Justices concur. Dakota, Plaintiff
STATE of South Appellee, WOODFORK, B. Defendant
Don Appellant.
No. 16457.
Supreme of South Dakota. Court
Argued Oct. April
Decided
*2
Gen.,
Radke,
Roger A.
Atty.
park
pulled
Asst.
and
her out of the car. Wood-
L.
Brian
(on brief), Pierre,
Atty.
Tellinghuisen,
Gen.
fork then struck the victim and led her to a
plaintiff
appellee.
and
picnic
he
shelter where
directed
victim
clothing.
to remove her
The victim refused
Pahlke, Pennington Coun-
Shawn Jensen
again, giving her
and Woodfork struck her
Defender, Rapid City, for defen-
ty Public
bloody
a
nose. Woodfork then removed
appellant.
dant and
time,
clothing.
the victim’s
At that
Wood-
WUEST,
Justice.
Chief
Sapp began
through
fork and
to search
clothing.
victim’s
The victim tried to es-
(Woodfork) appeals
B.
Don Woodfork
cape
at that time but she was tackled
for first
judgment
from a
of conviction
Woodfork not far from the shelter. Wood-
degree rape. We affirm.
then
the shel-
fork
took the victim back to
evening
April
On
victim,
According to the
ter.
Woodfork
(victim)
rape
went with
victim of the
forced himself
her and had inter-
Rapid City.
to the Reunion Bar
friends
her.
course with
met
with a man
There she
Woodfork
Sapp (Sapp). Prior to
eve-
named Ed
victim,
having
After
intercourse with the
ning,
Sapp.
had dated
The vic-
the victim
began
Woodfork
to leave when the victim
began visiting
approached Sapp
tim
and
him
her
were. He told
asked
where
clothes
point during
him. At some
the eve-
her clothes
the victim he would retrieve
Reunion
ning the victim’s friends left the
stay
and instructed her to
in the shelter.
then decided
Sapp
Bar.
and
her
He never returned. Woodfork threw
Air Force Base
they
go
to Ellsworth
nearby pond
and then left the
clothes
a
get Sapp’s
Sapp
ear.
asked Woodfork
to
victim,
Sapp. The
to find
park with
unable
agreed.
and Woodfork
for a ride to his car
clothes,
nearby
her
went to a
convenience
thereafter, Woodfork, accompanied
Shortly
police
where the
were contacted and
store
(Kel-
Margretta
named
Kellum
a woman
summoned. On the basis
an ambulance
lum),
Sapp
Bar with
and
left the Reunion
facts,
charged
Woodfork was later
the victim.
degree rape.
and convicted of first
victim,
Kellum
Sapp, Woodfork and
The
ap-
issues on
Woodfork raises several
directly
the Air Force Base.
go
did not
separately
them
without
peal. We address
Instead,
they
party.
Before
attended
listing
Woodfork first contends
them.
at
attending
party,
stopped
the four
grant his
court erred in
trial
pur-
the victim
store where
convenience
relating
the issue
requested
instruction
cigarettes
shoplifted
chased some
reflects that Wood-
of consent. The record
request
Sapp.
condoms at the
pack of
given the
requested that the
fork
attending
party,
the four went to
After
following instruction:
passed
Time
and the vic-
Kellum’s house.
charge
It is a defense to a
spend
night
eventually decided to
tim
entertained a reasonable
the defendant
and Kellum
at Kellum’s house. Woodfork
the female
good
faith belief
house,
floor of the
up
went
to the second
engage
voluntarily
person
consented
and went to bed.
the victim undressed
If from all the
intercourse.
sexual
thereafter,
began to wor-
Shortly
the victim
reasonable doubt
you
have
night
Kellum’s
staying the
ry about
reasonably and in
defendant
whether the
morning.
the next
she had to work
voluntarily con-
good faith
she
believed
bed, dressed, and at-
got
then
out of
She
engage in sexual intercourse
sented to
find a ride home.
tempted to
give
defendant the benefit
you must
give the victim a ride
offered to
Woodfork
guilty.
him not
the doubt and find
accepted.
home and she
requested
is similar
This instruction
car,
Woodfork,
driving the
did
who was
by the trial
instruction denied
home,
her
but instead
take the victim to
(S.D.
Faehnrich,
We first 101 Wash.2d 676 P.2d admissibility of the Reitz, gument regarding the (1984); Oregon State 75 Or. under SDCL 19—14— “shoplifting” evidence (1985). App. 705 P.2d Al argument, addressing this we first though adopt we do not this view as a testimony in note that the admission rule, general we believe these authorities first, inquiries: whether the evi volves two ruling trial suggest at least court’s and, second, relevant, if is relevant dence clearly against reason and evi was not prejudicial effect of the evi whether Additionally, the circum dence. we believe value. outweighs probative its shoplifting stances under which this inci Reutter, (S.D.1985); 374 N.W.2d trial suggest dent occurred also court’s Rose, (S.D. State v. 324 N.W.2d ruling respect this issue not 1982). case, present the trial court In the against reason and evidence. The clearly “shoplifting” evidence was concluded clearly shoplifting reflects this inci record to the victim’s character for not relevant place night, late at after dent took Having or untruthfulness. truthfulness drinking liquor for several victim had been conclusion, there was no need reached this circum Shoplifting hours. under these proceed to the next for the trial court to person’s stances indicates even less about balancing probative value of step of than it otherwise character for truthfulness effect. against its such evidence normal circumstances. might under more the trial court we do believe Considering facts and the above-men failing to conduct an on-the- erred here authorities, we cannot conclude the tioned balancing probative value and record refusing trial court abused its discretion “shoplifting” evi prejudicial effects of the under shoplifting admit evidence dence. SDCL 19-14-10. question of leaves us with the This argu next address Woodfork’s its discre- the trial court abused whether shoplifting evidence should ment that ruling “shoplifting” incident was tion in by the trial court under have been admitted character relevant to the victim’s probative of mo as it was SDCL 19-12-5 untruthfulness, and was truthfulness tive, respect to plan. With preparation previous- We have therefore inadmissible. issue, the trial court the record shows we will disturb an ly stated that before “shoplifting” evidence refused to admit the ruling, it must be determined evidentiary it was not under 19-12-5 because of discretion has occurred. that an abuse relating to the any issues Bartlett, 411 N.W.2d against rape brought charge first-degree (S.D.1987). An of discretion “refers abuse Having the record reviewed pur- an end or Woodfork.3 discretion exercised to to a relevant, was not concluded that such evidence Again, indicates the trial court as the record case, agree penetration. the facts of this shoplifting Under we occurred, any case, material issues rape was not relevant either a or it did not. and thus hold only question the vic- The was whether did its discretion not abuse if as- simple tim had consented. Even admit under SDCL 19-12-5. such evidence could be viewed as a lesser included sault undisputed present it is rape, and we do not hold that offense the condoms at the the victim obtained is, the evidence would not warrant request Sapp, Further- not Woodfork. pen- since there was such an instruction more, there was never statement etration. suggestion that the was to obtain supra 117-118. Antelope, Similar so that and Wood- the condoms both ad- Antelope, facts also engage fork in sexual intercourse could occurred, mitted that act there already The fact had with her. the victim penetration. no doubt there was prior possession on her one condom then, upon the facts of this case Based significance shoplifting incident bears little occurred, or it did not. There- either Sapp apparently since had none wanted fore, in Antelope, in this case as well as Moreover, may de- some. the victim have simple even if assault could be viewed as a *5 engage in with sired to sexual intercourse rape (again, included lesser offense facts, Sapp than once. From these it more is), do that the not hold evidence would shoplifted is the condoms clear the victim pen- not such warrant an instruction as purposes having for sexual inter- the ' etration did occur. Sapp, course Woodfork. It with therefore, clear, shoplifting evi- that the Woodfork next contends that the to the no relevance issue bears refusing trial erred in him to court allow Hence, case.4 consent in this we conclude prior cross examine the victim about her the court did abuse its discretion trial Sapp. dis sexual encounters with shoplifting in evi- denying admission of rule, agree. general As a admission of dence under SDCL 19-12-5. rape prior concerning victim’s is precluded sexual conduct SDCL 23A- has also asserted that the statute, rape like in 22-15.5 This shield laws trial erred to instruct the court jurisdictions, represents legisla in jury simple on assault as a lesser included other instances, degree rape. first We find no tive that in most offense of determination highly merit in this assertion. This issue was such evidence not relevant and presented Blalack, in Ante court State v. to the victim. State v. (S.D.1981). lope, In Ante (S.D.1988) (citations 434 N.W.2d lope, we stated: omitted). prior Evidence of a victim’s may sexual encounters be admitted if the developed is the evidence at trial ‘[I]t trial finds that it is court relevant
that of the governs matter instruc- to a at issue case. Watson, material fact given....’ to be tions Blalack, supra. is en This determination In this the trial appellant admitted that the act oc- trusted to sound discretion of curred, there there We will not interfere with the so is no doubt that court. Id. provides: need for court 23A-22-15 there was no the trial to conduct analysis pro- balancing an on the record of the rape, specif- prosecutions for evidence of effects of evi- bative value such prior of a sexual conduct ic instances victim’s dence. not be admitted nor reference made shall jury panel, except before the thereto be if this evidence was to considered Even party provided in this Whenever a section. consent, upon "shoplift- the issue of concerning proposes a vic- to offer evidence ing” evidence would still be irrelevant under conduct, prior the court shall first tim’s sexual since SDCL 19-12-5 the manner hearing in the absence of the insignificant conduct obtained the condoms is victim motive, public and rule purpose proving preparation and the to consider relevancy materiality plan. of the evidence. probative the photographs unless an abuse value of in re- trial court’s determination solving against Id. a material issue as clearly demonstrated. the dan- of discretion ger prejudice appellant through to the con- present the trial court In the passions needless arousals of the concerning the evidence cluded that Kane, jurors.” 266 N.W.2d with prior sexual encounters victim’s (S.D.1978). Having applied these rules any fact at or material to was not relevant ease, present to the we conclude that the Therefore, cross-exami- issue in the case. trial court did not abuse its discretion matter regarding nation of allowing photographs to view the contends prohibited.6 Woodfork now question. its discretion that the trial court abused clearly The record prohibiting such cross-examination because reflects probative that the evidence of the victim’s court considered the value of he claims Sapp was rele- prior photographs together preju- sexual encounters with with the no may Having issue of consent. We find they vant to the dicial effects that have. matters, The record in this argument. merit in this given due consideration to these devoid of substantial evidence case is then concluded that these suggest that which would tend to photographs displayed jury. could inter- had consensual sexual the victim We do not the trial court abused its believe in- Sapp, then she would be course with reaching discretion in this conclusion. sexual inter- clined to have consensual Both the victim and the doctor who treated prior Woodfork. The victim’s course with photographs her testified were Sapp suggest little sexual encounters with depictions appear- accurate of the victim’s engage willingness than her more fact, shortly rape. ance after the Sapp. It bears no sexual intercourse appearance doctor stated that-the victim’s *6 to the issue of whether relevance after the was worse than what the to sexual intercourse may have consented Furthermore, depicted. photographs result, As a we cannot with Woodfork. clearly photographs were the trial court abused its conclude that in case. central issue of force to discretion in to allow Woodfork conclude, therefore, must the trial regarding pri- her cross-examine the victim allowing court committed no error in Sapp. or sexual conduct with question. jury photographs to view the con finally argues We next address Woodfork’s that the cumula- the trial court abused its dis alleged tention that of all these errors effec- tive effect photo allowing right to view to a fair tively deprived cretion him of his shortly taken after the graphs of the victim that the trial trial. As we have determined Swallow, rape. In State v. committed no errors we (1984), following: argument presented by we stated the Wood- reject this was It is clear then that Woodfork fork. X-rays and are ad
Photographs, slides right a fair trial in deprived of his to they accurately portray missible when any manner. competent it is for a wit anything which words, or describe in his own ness to Judgment is affirmed. an aid to a they helpful are
where
objects
or condi
description
verbal
MILLER, JJ., concur.
and
MORGAN
material is
and relevant to some
tions
JJ.,
SABERS,
HENDERSON
sue.
dissent.
this,
Swallow,
In
to
supra at 610.
addition
HENDERSON,
(dissenting).
Justice
court, in
that the “trial
have also stated
we
did not
respectfully dissent. Woodfork
photo-
I
determining
pictures or
whether
He had an “inherent
admitted,
a fair trial.
weigh
must
receive
graphs should be
through
issue,
ly brought
to the attention
addressing
believe it is wor-
Sapp
towards
direct examination
thy
of the victim’s Woodfork’s
note that the evidence
the trial.
ultimate-
the end of
prior
encounters with
sexual
VI,
his
rulings deprived Woodfork of
improper
Art.
Bill
liberty.”
right” to “defend his
Dokken,
fair trial.
at 494.
right
to a
He could not
Const.*
Rights
S.D.
§
(1) he advanced
liberty
defend
condoms,
stealing
acts of
Victim's
judge
the trial
consent and
the defense of
(or men)
go out with a man
preparation to
ways
permit him to
(after
refused —in several
cry rape
then
inter-
to have sex and
—to
consent;
(2) the trial
effectively prove
course)
contradictory
is a combination
testimony concern
not allow
acts. The
should have
judge
incongruous
would
condoms; (3)
judge
to know that she
permitted
the trial
been
ing the theft of
plans
engage
to fulfill her
steal condoms
about
cross-examination
did not allow
proof to hear
acts. An offer of
sexual
concerning pri-
the victim made
statements
judge.
this evidence was denied
(4)
Sapp;
appellant
acts with
or sex
probative,
had
material val-
This evidence
specifically instructed
jury was not
error to exclude it. This evi-
ue.
It was
degree
to first
created a defense
“consent”
condoms)
(stealing
was relevant
judi
Mistakenly,
with belabored
rape.
not,
Theft,
credibility.
does it
reflects
her
from
keep the critical facts
cial effort
Dishonesty,
honesty/dishonesty?
upon
The criminal
this case tried.
jury,
not,
upon credibility? Cred-
reflects
does
defense is
right
proffer
ly accused’s
not,
jury’s
ibility, does it
reflects
Mississip
Chambers
See
fundamental.
testimo-
assessment of
witness’
overall
1038, 1049,
pi,
410 U.S.
93 S.Ct.
19-14-10,
gener-
ny?
it is
Under SDCL
United States
(1973);
35 L.Ed.2d
specific instances of the con-
al rule that
(5th Cir.1978);
Garner, 581 F.2d
or her
a witness —to attack his
duct of
Ballesteros-Acuna, States v.
United
credibility may not be established
ex-
—
(9th Cir.1975); and
United
F.2d
exceptions,
There are two
trinsic evidence.
Thomas, 488 F.2d
(6th
States
these relates to his/her
however. One of
Cir.1973).
This constitutional
truthfulness or untruthful-
character
defense,
evidence, and thus a
present
complaining
us: The
Example
ness.
before
process
clauses of
grounded
the due
stealing
specific conduct of
con-
witness’
Amendments to
Fifth and Fourteenth
her
go
and have sex bears on
doms to
out
Chambers,
Constitution,
States
United
credibility that she
credibility, her direct
Const,
Thus,
VI,
art.
2 and 7.
in S.D.
§§
raped.
19-12-1 we
forcibly
*7
“
to have the
the accused “is entitled
evidence’ means evidence
find:
‘Relevant
which is
any theory of the defense
consider
tendency
existence
having any
to make the
by
has some foun
supported
law
consequence to the
any fact that
is of
evidence,
tenuous.
in the
however
dation
probable
action more
determination of the
States,
F.2d
Tatum v. United
190
probable than it would be without
or less
(D.C.Cir.1951);
Unit
U.S.App.D.C. 386
88
Even if evidence is rele-
the evidence.”
435,
Phillips,
v.
217 F.2d
442-443
ed States
law,
vant,
may, by
exclude
judge
a trial
Grimes,
v.
Cir.1954).”
United States
(7th
power
granted
is
evidence. Such
relevant
Cir.1969).
See
1376,
(7th
1378
413 F.2d
If the evi-
by
him
SDCL 19-12-3.
unto
Chatham,
also,
v.
F.2d
United States
568
misleading or cumula-
prejudicial,
is
Dokk
v.
(5th Cir.1978). In
State
450
tive,
may
the evi-
judge
exclude
en,
(S.D.1986),
N.W.2d
504
385
us,
not
the evidence was
dence. Before
degree mur
a conviction of first
reversed
it
this state statute.
violative of
trial because it was
and ordered a new
der
Further-
not have been excluded.
should
“overwhelmingly
that Dokken’s sub more,
clear
“other crime
19-12-3
under SDCL
by
that he did
rights were so violated
held admissible
stantial
evidence” has been
Holland,
Dokken,
in
v.
trial.”
339
(1)
(2)
Rape,
If
he
effectively
meet two tests:
Is
relevant?
was denied the
relevant,
prejudicial effect
does the
of the
concerning pre-
cross-examine the “victim”
substantially outweigh
proba-
its
directly
vious sexual encounters
relevant to
Reutter, 374
tive value? State v.
N.W.2d the crime of which he stood accused. U.S.
(S.D.1985).
Const,
Const,
617
Granted that
Court
VI;
VI,
amend.
S.D.
art.
7.§
has,
decisions,
through
held that “other
Although
Court,
briefed
the ma
may
prose-
crime evidence”
used
jority opinion conspicuously avoids treat
(a)
(b)
if
its
cution to convict
prejudicial
ment of the
error
This
rule.
is
prejudicial
outweigh
pro-
effect does
its
understandable
the Chief Justice of this
value,
wrong
it so
why
bative
allow
Davis,
Court stood alone in
to establish “other crime evi-
defense
swift,
By
N.W.2d 721
literary
proves up
dence” which
the defense? Both
waters,
passage
previous
on
lonesome
prosecution and the defense—on
battle-
majority opinion
author
now sails
play by
field of truth —should have to
past a
discussion of
error. As
Impartiality
same set of rules!
and the
(sole)
dissent,
captain
of this
bottomed
equal
justice
administration of
demands
premise
on the
error was
but, rather, apply
that we seek not a result
below,
cannot,
I
conceptually,
committed
force;
judges
the law with neutral
state
Davis,
sep
lay anchor. In
I cited fourteen
be,
might
justices we
but chattels of the
Court, plus
arate cases in this
refer
made
state,
bidding,
to do its
we are not.
scholarly
ence to a
article of former Chief
oath,
admitted,
Alleged victim
under
Traynor
Roger
Justice
of the California
marijuana
night
smoking
on the
Court,
Supreme
on “The
Harm
Riddle on
provided
rape.
independent
An
witness
Error,”
regarding
all
less
harmless error.
testimony
alleged rape
victim re-
Chapman
California,
386 U.S.
underpants
her
at her home
moved
before
(1967),
hurdle comes when consti- a apparent. I tutional violation is would any not to dant is entitled consent instruc standard, adopt the reasonable doubt guilt of of tion where the evidence of lack this state and federal because both Faehnrich, overwhelming.” is In consent Why? constitutional error was committed. statement, by making that we relied on Elementary, my dear Watson. The (S.D. Havens, v. State errors, evidentiary judge, by numerous ab- 1978). We held in that “... con Havens permit solutely refused to Woodfork from may sent be a defense where there is evi by a defending liberty dogmatic refusal that the victim dence offered received permit any to that the victim con- evidence however, consent; that evidence did indeed sented, thereby fair trial Art. precluding a negate utterly also to ele would have Const.; VI, Rights, S.D. Bill of Cham- § force, of coercion threat.” I sin ment or bers, id.; Webb, Tatum, v. 251 id. State cerely guilt that the of submit evidence (S.D.1977) we held that the N.W.2d 687 overwhelming is not the lack of consent error should never be harmless rule used Again, consent defense case before us. justify fairness at trial. This Court should stripped from in the instruc Woodfork affray advocacy pre- stand above the of facts, you judge tions. Remember being vent error rule from an the harmless testimony writing, the merits of this that wrong. of Point: The instrument eviden- independent an witness established from tiary of the trial errors court were her alleged victim removed alleged ... harmless. “Absent [the error] bra, underpants independent and her at the beyond is it a doubt that clear reasonable home, displayed pubic witness' her jury would have returned verdict facts, say plus I area to accused. Those her guilty?” no. We cannot answer this question yes, judge stealing night certainly would condoms that ne permit proffer his defense for Woodfork gates guilt that is no there evidence See, jury consider. United States “overwhelming.” lack of consent Hasting, U.S. 103 S.Ct. totally inapposite. Faehnrich (1969). Certainly L.Ed.2d 96 had Sabers, dissent, in his alludes to Justice a reasonable doubt and to.create Continuing writing Michalek. a decade specula- case are neither facts Court, on error rule in creating tive nor fantastic about doubt. again specially I wrote therein to concur jury speculating upon A would not be my preserve integrity and to also Rather, fantastic defense. previous position. special concur- said defense, deliberating upon the truth of a rence, Farley, I that wrote quote namely Wigmore, I 1A. consent. (S.D.1980) controlling N.W.2d (Tillers rev.1983): Evidence at 1724 § Moreover, set of facts. case [I]f accused] [offered reaching I granddaddy, back to the cited is in truth calculated to cause the Reddington, 80 S.D. doubt, attempt the court should not (1963), general propo- for the decide for the doubt sition “There is no definite rule which to purely speculative and fantastic but measure error and each every afford opportu- should the accused on its facts.” Point: must be decided own contrary A
nity to create that doubt.
*9
Prejudicial error
here.
occurred
really
rule is unfair to
innocent ac-
cused.
Therefore,
hereby
I
to reverse this
vote
Academically,
majority opinion
can the
of forcible
and would re-
conviction
truly
as its primary
use Faehnrich
authori-
for retrial so that Woodfork
mand
give
ty for a refusal
Woodfork's re-
fairly present
could
his defense.
quested
voluntary
instruction on
consent?
appear
any
There does not
to be
instruc-
SABERS,
(dissenting).
”
Justice
explicitly
tion which
mentions “consent.
Faehnrich,
I
reasons:
nation to
Califor-
nia,
18,
824,
386
17 L.Ed.2d
v.
U.S.
87 S.Ct.
interrogation. Davis Alas
harassing
however,
(1967);
California,
discretion,
Harrington v.
ka,
705
That
supra.
250,
1726,
89
23 L.Ed.2d
395 U.S.
S.Ct.
the utmost cau
must be exercised “with
(1969).
for the defendant’s
284
and solicitude
tion
rights.”
United
Amendment
Sixth
461
Hasting,
v.
U.S.
United States
1219,
554 F.2d
1225
Houghton,
(1983),
499,
1974,
States v.
96
103
76 L.Ed.2d
S.Ct.
851,
Cir.1977),
denied,
(1st
434 U.S.
cert.
Chapman
and
the Court
followed
(1977).
164,
The
probability is harm- jury’s verdict and fect Dakota, Plaintiff STATE of South rights party ful to the substantial Appellant, [Dokken, 498]; assigning supra it. 80 S.D. Reddington, (1963).... 58, 62 125 N.W.2d DALY, Defendant John Jerald harmless error as 23A-44-14 defines Appellee. defect, error, irregularity or “[a]ny vari- No. 16719. substantial which does not affect ance Supreme South Dakota. Court of gov- rule rights[.]” The error harmless violations, not erns constitutional even Argued Feb. requiring the automatic reversal of April Decided conviction, provided the court is able to 24, 1990. May Rehearing Denied beyond a a belief reasonable declare was harmless and doubt that error
did not contribute to verdict obtained.