State v. Armstrong, No. 25428.

CourtSupreme Court of South Dakota
Writing for the CourtSEVERSON
Citation2010 S.D. 94,793 N.W.2d 6
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Joshua John ARMSTRONG, Defendant and Appellant.
Decision Date15 December 2010
Docket NumberNo. 25428.
793 N.W.2d 6
2010 S.D. 94


STATE of South Dakota, Plaintiff and Appellee,
v.
Joshua John ARMSTRONG, Defendant and Appellant.


No. 25428.

Supreme Court of South Dakota.

Argued April 27, 2010.
Decided Dec. 15, 2010.

793 N.W.2d 8

Marty J. Jackley, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

N. Bob Pesall, Flandreau, South Dakota, Attorney for defendant and appellant.

SEVERSON, Justice.

[¶ 1.] Joshua John Armstrong was convicted of Sexual Contact with a Person Under Sixteen in violation of SDCL 22-22-7. The trial court admitted evidence of Armstrong's 1999 conviction of Rape in the Third Degree as well as statements he made in group counseling sessions as part of the mandatory prison sex offender counseling program. The trial court also limited Armstrong's cross-examination of the victim regarding allegations of sexual abuse she made against another individual. Armstrong appeals. We affirm the trial court on all issues.

BACKGROUND

[¶ 2.] T.A. (Mother) is the mother of R.L., the thirteen-year-old victim in this case. Mother and Armstrong divorced in 2001, in part because Armstrong was convicted of Rape in the Third Degree on February 26, 1999, and was sentenced to a ten-year term of imprisonment in the South Dakota State Penitentiary. Armstrong was released on February 18, 2009. Upon release, Armstrong planned to return to the Flandreau, South Dakota, community to live with his mother, Paula Manwarren. But on February 18 and 19, 2009, after having dinner with his family at Manwarren's house, Armstrong spent the night at Mother's home.

[¶ 3.] Upon arriving home from dinner on February 19, 2009, Mother told her four daughters to get ready for bed. She

793 N.W.2d 9
asked R.L. to go upstairs to get pajamas for her three younger sisters. Armstrong followed R.L. upstairs. R.L. testified that while she was in Mother's room looking for the pajamas, Armstrong came into the room to talk to her. Armstrong began speaking to R.L. about his Wiccan religion. Armstrong described a dream in which he saw R.L. lying naked on a table surrounded by candles. As Armstrong described his dream, R.L. received a phone call from a friend. R.L. sat on Mother's bed while talking to her friend. Armstrong sat down beside R.L. and began touching her breasts. When asked at trial whether Armstrong touched her "more than once in more than one place," R.L. responded, "Yes." R.L. stated that Armstrong also touched her on her butt and in between her legs. R.L. moved away from Armstrong, but did not tell him to stop.

[¶ 4.] When R.L. finished her phone call, Armstrong began talking to R.L. about dragons. Armstrong told her that the dragons "wanted [her] for something" because she had a "special quality or a special thing that his dragons wanted from her." Armstrong threatened her, saying that the dragons could "do bad things, that ... [they could] hurt her sisters." Armstrong said that R.L. could stop anything from happening to her sisters if she agreed to "take off [her] clothes." When R.L. refused, Armstrong told her that it was "right for parents to do bad things to their children" and promised R.L. that he "would make [her] bedtime later if [she] would let him do bad things to [her]." R.L. told Armstrong "it wasn't right" and left the room. Armstrong went downstairs and watched television with Mother.

[¶ 5.] Manwarren picked up R.L. and her sister from school the following day. When they arrived at R.L.'s home, R.L. told Manwarren that "she didn't want to go home, that she wanted to stay with [her]." Manwarren asked R.L. why she did not want to go home. R.L. told Manwarren that Armstrong was inside babysitting her younger sisters and that he "touched her" the night before. Manwarren took R.L. to see Mother at her workplace. After speaking with Mother, Manwarren asked R.L. whether she wanted to confront Armstrong or whether she wanted to talk to the police. R.L. said that "she wanted to talk to the cops."

[¶ 6.] Special Agent James Severson of the South Dakota Division of Criminal Investigation interrogated Armstrong after he was arrested. Armstrong told Agent Severson that he followed R.L. upstairs so that he could talk to her. Armstrong told Agent Severson that he and R.L. began talking about "dragons and different things that are involved in the Wiccan religion." R.L. was "concerned because she wasn't having ... visions" anymore. Armstrong explained that "she didn't have the visions because she is a Christian." Armstrong said that "[R.L.] was scared and was crying and wanted him to hold her and to hug her." "She hugged him and laid her head on his shoulder." "He was patting her head and she was kind of sitting on his lap next to him on the end of the bed." Armstrong said that he "put his hand on the side of her leg." When Agent Severson confronted Armstrong with R.L.'s allegations, Armstrong denied inappropriately touching her.

[¶ 7.] On March 6, 2009, a Moody County grand jury indicted Armstrong on one count of Sexual Contact with a Person Under Sixteen in violation of SDCL 22-22-7. The State filed a Part II Information on March 18, 2009, alleging that Armstrong was a habitual offender under SDCL 22-7-7 given his prior felony conviction of Rape in the Third Degree. The case proceeded to trial on July 9, 2009, and the jury found Armstrong guilty. Armstrong

793 N.W.2d 10
appeared before the trial court on September 2, 2009, for sentencing. The trial court, relying on the findings of the pre-sentence investigation, sentenced Armstrong to a twenty-five-year term of imprisonment in the penitentiary. Armstrong appeals.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court abused its discretion by admitting evidence of Armstrong's 1999 conviction of Rape in the Third Degree.

[¶ 9.] On June 23, 2009, the State filed a Notice of Intent to Offer Other Acts Evidence. The State sought to introduce evidence of Armstrong's 1999 conviction of Rape in the Third Degree. Armstrong was twenty-two years-old at the time of the conduct giving rise to his prior rape conviction. On August 26, 1997, Armstrong attended a party at a home in Sioux Falls. At some point during the night, he noticed a fifteen-year-old female lying naked in a bedroom. Armstrong entered the bedroom and asked the female if she wanted to have sex. The victim, who was extremely intoxicated, said, "Yes." Armstrong began kissing her neck and breasts and had sexual intercourse with her. He later pleaded guilty to Rape in the Third Degree in violation of SDCL 22-22-1. The trial court admitted the evidence of Armstrong's prior rape conviction to show that he had the specific intent to arouse or produce sexual gratification when he touched R.L. and to rebut his defense of mistake or accident.

[¶ 10.] "[I]t is a settled and fundamental principle that persons charged with crimes must be tried for what they allegedly did, not for who they are." State v. Moeller, 1996 S.D. 60, ¶ 6, 548 N.W.2d 465, 468 (citing United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985)).

Under our system, an individual may be convicted only for the offense of which he is charged and not for other unrelated criminal acts which he may have committed. Therefore, the guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing.
Id. (quoting Hodges, 770 F.2d at 1479). "No matter how vile or despicable a person may appear to be, he or she is entitled to a fair trial." Id. "[I]ndividuals may only be convicted for the crimes with which they are charged; they may not be subject to criminal conviction merely because they have a detestable or abhorrent background." Id. (citing Hodges, 770 F.2d at 1479).

[¶ 11.] The admission of prior acts evidence is governed by SDCL 19-12-5 (Rule 404(b)), which 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.
"Prior ... acts evidence is not admissible to show that, merely because a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged." State v. Steichen, 1998 S.D. 126, ¶ 17, 588 N.W.2d 870, 874 (quoting Moeller, 1996 S.D. 60, ¶ 12, 548 N.W.2d at 471). But prior acts evidence may be admitted for other purposes, including, but not limited to, those listed in
793 N.W.2d 11
SDCL 19-12-5 (Rule 404(b)).1 Id. (citing State v. Champagne, 422 N.W.2d 840, 842 (S.D.1988)). "It is the proponent of the prior act[s] evidence who must persuade the trial court that the evidence has some permissible purpose." State v. Lassiter, 2005 S.D. 8, ¶ 15, 692 N.W.2d 171, 176 (citing State v. Wright, 1999 S.D. 50, ¶ 14, 593 N.W.2d 792, 798 (citing SDCL 19-12-1 (Rule 401))).

[¶ 12.] A trial court must engage in a multi-prong analysis before admitting prior acts evidence. Id. (citing State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995)). A trial court must consider (1) whether the intended purpose of the prior acts evidence is relevant to some material issue in the case other than character (factual relevance) and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect (legal relevance). Id. (citing Ondricek, 535 N.W.2d at 873). See United States v. Betterton, 417 F.3d 826, 831 (8th Cir.2005) ("For evidence of past crimes to be admissible under Rule 404(b), the evidence must be (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the charged crime; (3) supported by sufficient evidence; and, (4) such that its potential prejudice does not substantially outweigh its probative value.") (citing United States v. Williams, 308 F.3d 833...

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5 practice notes
  • State v. Birdshead, No. 26987.
    • United States
    • Supreme Court of South Dakota
    • October 21, 2015
    ...outweighed by the danger of unfair prejudice (logical relevancy). See Boe, 2014 S.D. 29, ¶ 21, 847 N.W.2d at 321 ; State v. Armstrong, 2010 S.D. 94, ¶ 12, 793 N.W.2d 6, 11 ; Moeller, 1996 S.D. 60, ¶ 13, 548 N.W.2d at 472 ; SDCL 19–19–403.¶ 58.] From our review of the record, the circuit cou......
  • State v. Lutes, WD 80030
    • United States
    • Court of Appeal of Missouri (US)
    • June 19, 2018
    ...with" prior victims; and "[a]ll three boys were similar in age when they first met the defendant"); State v. Armstrong , 793 N.W.2d 6, 13 ¶ 18 (S.D. 2010) ("Because Armstrong's victims were similar ages when the offenses occurred, the requisite degree of similarity exist......
  • State v. Armstrong, #28722
    • United States
    • Supreme Court of South Dakota
    • January 29, 2020
    ...in the South Dakota State Penitentiary since his 2009 conviction of sexual contact with a person under sixteen. See State v. Armstrong , 2010 S.D. 94, 793 N.W.2d 6. In 2016, Armstrong prepared an envelope of letters and other documents to be sent to the Compass Center in Sioux Falls. The Co......
  • State v. Prince, No. SC 96524
    • United States
    • United States State Supreme Court of Missouri
    • December 5, 2017
    ...of prior conduct. "Remoteness is not subject to a rigid rule, but will depend on the facts of the case." State v. Armstrong , 793 N.W.2d 6, 12 (S.D. 2010). "Remoteness and similarity must be considered together because the two concepts are so closely related." Fisher v. ......
  • Request a trial to view additional results
5 cases
  • State v. Birdshead, No. 26987.
    • United States
    • Supreme Court of South Dakota
    • October 21, 2015
    ...outweighed by the danger of unfair prejudice (logical relevancy). See Boe, 2014 S.D. 29, ¶ 21, 847 N.W.2d at 321 ; State v. Armstrong, 2010 S.D. 94, ¶ 12, 793 N.W.2d 6, 11 ; Moeller, 1996 S.D. 60, ¶ 13, 548 N.W.2d at 472 ; SDCL 19–19–403.¶ 58.] From our review of the record, the circuit cou......
  • State v. Lutes, WD 80030
    • United States
    • Court of Appeal of Missouri (US)
    • June 19, 2018
    ...with" prior victims; and "[a]ll three boys were similar in age when they first met the defendant"); State v. Armstrong , 793 N.W.2d 6, 13 ¶ 18 (S.D. 2010) ("Because Armstrong's victims were similar ages when the offenses occurred, the requisite degree of similarity exist......
  • State v. Armstrong, #28722
    • United States
    • Supreme Court of South Dakota
    • January 29, 2020
    ...in the South Dakota State Penitentiary since his 2009 conviction of sexual contact with a person under sixteen. See State v. Armstrong , 2010 S.D. 94, 793 N.W.2d 6. In 2016, Armstrong prepared an envelope of letters and other documents to be sent to the Compass Center in Sioux Falls. The Co......
  • State v. Prince, No. SC 96524
    • United States
    • United States State Supreme Court of Missouri
    • December 5, 2017
    ...of prior conduct. "Remoteness is not subject to a rigid rule, but will depend on the facts of the case." State v. Armstrong , 793 N.W.2d 6, 12 (S.D. 2010). "Remoteness and similarity must be considered together because the two concepts are so closely related." Fisher v. ......
  • Request a trial to view additional results

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