R.S.S., Matter of, No. 17174

• Court: Supreme Court of South Dakota
• Writing for the Court: SABERS; J.C.'s mother testified that some six weeks after defendant last babysat J.C., and after J.C.'s family had moved to a new community, she observed J.C. touching her vagina one day after a bath. When she asked J.C. why she was doing that; As in
• Citation: 474 N.W.2d 743
• Decision Date: 21 March 1991
• Docket Number: No. 17174
• Parties: In the Matter of R.S.S., Delinquent Child. . Considered on Briefs

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474 N.W.2d 743 In the Matter of R.S.S., Delinquent Child. No. 17174. Supreme Court of South Dakota. Considered on Briefs March 21, 1991.
Decided Aug. 28, 1991.

Roger A. Tellinghuisen, Atty. Gen., Robert J. Carl, Jr., Asst. Atty. Gen., Pierre, for appellee.

Gwendolyn Laprath, Gregory, for appellant.

SABERS, Justice.

R.S.S. (defendant), ¹ a twelve-year-old girl, challenges the admissibility of hearsay and prior bad act evidence and sufficiency of the evidence to sustain her adjudication as a delinquent.

Facts

Mother and father, parents of four-year-old daughter S.H., planned to attend a dance Saturday night, August 5, 1989, but found none of their regular babysitters available. On the recommendation of mother's friend, they hired defendant, who had recently moved into the area.

Mother and father left S.H. alone with defendant around 8:00 p.m. They returned home from the dance at midnight. Father went to the door of the house and mother remained in the car to drive defendant home. When father entered the house he found S.H. crying hysterically. S.H. had a washcloth over her face. When father asked defendant what had happened, she replied that the two had been roughhousing on the living room couch and that S.H. fell and hurt herself. Father paid her and she left the house.

When defendant got into the car, mother asked her what was wrong because mother, too, heard crying from inside the house when father opened the door. Defendant replied that S.H. had fallen and cut her lip on the stove. It is mother's recollection that defendant indicated the kitchen stove, but there is also a heating stove in the living room near the couch and defendant maintains she was referring to this stove.

When mother returned home, S.H. was still crying. Under the washcloth covering her face, S.H.'s lip was badly cut, there were red and blue blotches on her face and her eyes were nearly swollen shut. Shortly after mother's return, S.H. vomited a red phlegm.

Mother stayed up with S.H. all night. Although she asked S.H. what had happened, S.H. provided no information.

The next morning, mother and father discovered two marks or sores on S.H.'s stomach and leg, and reddened bald spots on her head. They also found three clumps of hair in the bathroom and the living room.

Mother and father questioned S.H. Sunday morning and again Sunday afternoon. According to their testimony, S.H. told them that defendant slapped her, kicked her in the stomach, pulled her hair and threatened to burn her with candles. S.H. did not claim defendant actually burned her and she could not account for the marks on her stomach and her leg.

Later that afternoon, mother took S.H. to the home of defendant. There they confronted

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her and her parents with S.H.'s accusations, but defendant denied that she hit S.H.

Defendant continues to maintain that she did not strike S.H., that she herself noticed the sore on S.H.'s leg before mother and father left for the dance and remarked on it to mother, and that any injuries S.H. received while she babysat her were the result of nothing more than rough play and rough hairbrushing following a bath. Defendant also suggests that cherry tomatoes S.H. ate that night may account for the red vomitus.

On Tuesday, August 8, 1989, mother took S.H. to a local clinic where a physician's assistant examined her and determined that she had been physically abused. He also diagnosed the marks on S.H.'s stomach and leg as either burn marks or impetigo caused by an infection. That same day a child protection worker with the Department of Social Services interviewed S.H. and mother, and took photographs of S.H. Both the physician's assistant and the child protection worker testified that S.H. told them her babysitter had slapped her and pulled her hair. The child protection worker also testified that S.H. reported defendant threw her around, threatened her with lighted candles and gave her a bath contrary to mother's instructions. According to the child protection worker's testimony, S.H. denied being sexually abused by defendant and could not remember having been burned with the candles.

On September 1, 1989, state filed a petition alleging that defendant was a delinquent because she violated SDCL 26-10-1. ² During October, 1989, the state filed three motions:

(1) To admit hearsay evidence from mother, father and the child protection worker about what S.H. said to them.

(2) To admit prior bad act evidence showing defendant had sexual contact with J.C., another four-year-old she babysat.

(3) To admit prior bad act evidence showing defendant spanked T.B., a ten-month-old she babysat.

On October 31, 1989, the court held a hearing on the admissibility of the hearsay and prior bad act evidence and on the delinquency adjudication. After examining S.H. in open court, the trial judge found her unavailable as a witness and admitted the hearsay testimony of mother, father and the child protection worker.

After an in-chambers examination of ten-month-old T.B.'s eight-year-old sister, the court found the sister available as a witness and admitted her prior bad act testimony that she saw defendant spank T.B. two months earlier while babysitting her and T.B.

Finally, the court admitted the prior bad act testimony of the mother of four-year-old J.C., who testified that defendant had sexual contact with J.C. three months earlier. J.C.'s mother did not witness this sexual contact. Instead, J.C.'s mother provided hearsay testimony about what J.C. told her some six weeks later. The court admitted the testimony after attempting an interview with J.C. in chambers. The court found that J.C., like S.H., was unavailable as a witness and that the hearsay statement of J.C.'s mother had "the necessary guarantees of trustworthiness[.]"

On November 1, 1989, the court adjudicated defendant a delinquent child, entering findings of fact and conclusions of law to that effect on November 21. At the dispositional hearing held April 12, 1990, the court ordered defendant to complete a course of counseling with her parents, placed her on probation for a period of eighteen months, ordered her to obey authority figures and to attend school, and restricted her from babysitting for anyone but immediate family members.

On appeal defendant challenges:

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(1) The admissibility of the prior bad act evidence;

(2) The admissibility of the hearsay evidence; and

(3) The sufficiency of the evidence to sustain her adjudication as a delinquent child.

1. Prior Bad Act Evidence

The court admitted two pieces of evidence about prior bad acts allegedly committed by defendant: the testimony of T.B.'s sister that she saw defendant spank T.B., and the testimony of J.C.'s mother that defendant had sexual contact with J.C. Because J.C.'s mother did not testify about anything she witnessed, but only about what J.C. told her, the testimony of J.C.'s mother is also hearsay.

SDCL 19-12-5 provides:

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.

SDCL 19-12-5 serves two purposes. It articulates the basic rule that "[g]enerally, evidence of other bad acts is inadmissible," State v. Eagle Hawk, 411 N.W.2d 120, 125 (S.D.1987), and permits exceptions to this general rule where the purpose of prior bad act evidence is not to show that defendant is a bad person, but to prove one of the elements enumerated in the statute. Id. "The trial court must first determine if such evidence is relevant for one of these purposes and, if so, to balance the probative value against its prejudicial effect." State v. Itzen, 445 N.W.2d 666, 668 (S.D.1989) (citing State v. Reutter, 374 N.W.2d 617 (S.D.1985)).

Even if prior bad act evidence is found to be relevant to a material issue in the case under SDCL 19-12-5, it may still be excluded if its prejudicial effect substantially outweighs its probative value. SDCL 19-12-3; State v. Klein, 444 N.W.2d 16, 18-19 (S.D.1989). It is "crucially important that circuit court judges perform this probative-prejudicial balancing on the record." State v. Eagle Hawk, supra, at 126 (emphasis original). If the court makes the required evaluation, and makes a record that it has done so, this court will not disturb its conclusion that prior bad act evidence is relevant and that its probative value is not substantially outweighed by its prejudicial effect unless we find the court abused its discretion. State v. Itzen, supra, at 668; State v. Klein, supra, at 19. See also State v. Bradley, 431 N.W.2d 317, 324 (S.D.1988), and State v. Basker, 468 N.W.2d 413, 415 n. 1 (S.D.1991).

a. Testimony of J.C.'s Mother

There are no findings in the record that the testimony of J.C.'s mother is relevant to any element enumerated in SDCL 19-12-5, or that its probative value is not substantially outweighed by its prejudicial effect. As we said in State v. Eagle Hawk, supra, at 126, "[i]f such a weighing was accomplished, we are certain the circuit court judge would have disallowed this evidence as its probative value is substantially overcome by its prejudicial effect."

J.C.'s mother testified that some six weeks after defendant last babysat J.C., and after J.C.'s family had moved to a new community, she observed J.C. touching her vagina one day after a bath. When she asked J.C. why she was doing that, J.C. replied that defendant had both touched and licked her there, and that defendant had instructed J.C. not to tell her mother. J.C.'s mother also gave testimony about a spanking incident involving another daughter and defendant.

Under SDCL 19-12-5, we fail to see how the testimony of J.C.'s mother, even if true, is relevant to any material issue against defendant. The testimony proves...