State v. Bachman, 16381

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER; WUEST, C.J., and MORGAN; HENDERSON; SABERS
• Citation: 446 N.W.2d 271
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David BACHMAN, Defendant and Appellant.
• Docket Number: No. 16381,16381
• Decision Date: 12 October 1989

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446 N.W.2d 271 STATE of South Dakota, Plaintiff and Appellee,
v.
David BACHMAN, Defendant and Appellant. No. 16381. Supreme Court of South Dakota. Argued April 25, 1989.
Decided Sept. 13, 1989.
Rehearing Denied Oct. 12, 1989.

Wade A. Hubbard, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Drew Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant.

MILLER, Justice.

David Bachman appeals his conviction for two counts of sexual contact with a child under sixteen years of age and two counts of rape. We affirm, holding that (1) there was sufficient evidence to support the jury verdicts on all four counts; (2) the trial court did not err in admitting into evidence expert testimony concerning rape trauma syndrome; and (3) the charges of rape and sexual contact are mutually exclusive.

FACTS

Bachman met M.E. (mother of the victims) in 1985. Shortly thereafter, they began living together in Sturgis, South Dakota. Bachman later met A.E., J.E. and D.E., who were M.E.'s children by a previous marriage. In 1986, M.E.'s ex-husband allowed her to have summer custody of the children. Throughout that summer, Bachman was employed at a tourist attraction and M.E. worked nights at a nursing home in Spearfish. Bachman would return home from his job at 10:30 or 11:00 p.m., just prior to M.E.'s departure for work. Thus, Bachman was alone with the children during most nights.

During the summer, Bachman would take A.E., a 10-year-old girl, to the bedroom he shared with her mother. Once inside, he would either take A.E.'s clothing off or have her disrobe. Once undressed, Bachman would tie her to the bed with ropes and would attempt to have intercourse with her. On some occasions, he would tape her mouth shut with duct tape. On those occasions when he did not tape her mouth shut, he would have oral intercourse with her. According to A.E.'s testimony, Bachman also had anal intercourse with her. She further stated that this went on "almost every night" after the first two

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weeks of the children's visit and happened "over thirty or forty" times. Bachman also forced himself on A.E.'s sister J.E., then age nine, in much the same manner. He would sometimes force A.E. to watch his activities with J.E. Bachman threatened to harm the girls' mother and brother, D.E., if they ever reported the molestations.

The girls and their little brother returned to their father in August. About a year later, A.E. recounted the molestations to her father's girl friend. A.E. was still too frightened to tell her father what had happened. J.E. also recounted a very similar story to her father's girl friend. The matter was ultimately reported to and investigated by the South Dakota Department of Social Services (DSS). A DSS social worker found that the girls' stories were very consistent. J.E. later related her story to an agent of the Division of Criminal Investigation (DCI). The girls were examined by a pediatrician in Sioux Falls, who found evidence of injury to J.E.'s hymen, which injury could have been caused by attempted penetration. The examination of A.E. revealed that she had a septate hymen so that it would be possible only to attempt intercourse with her. The pediatrician found no evidence of attempted anal penetration of either girl, but concluded that such evidence would be difficult to find since fourteen months had elapsed since the claimed molestations.

Bachman was charged with two counts of rape ¹ and two counts of sexual contact with a child under sixteen ² stemming from the girls' molestations. A Part II Information was filed, alleging that Bachman had been convicted of second-degree robbery in Brown County, South Dakota, in March 1977, and of felony theft in LaSalle County, Illinois, in November 1979.

The jury convicted Bachman on all counts. He then filed a stipulation for waiver of trial on Part II of the Information. The trial court sentenced Bachman to fifteen years on Counts 1 and 3 (sexual contact with A.E. and J.E.--SDCL 22-22-7), twenty-five years on Count 2 (rape of A.E.--SDCL 22-22-1(5)), and life on Count 4 (rape of J.E.--SDCL 22-22-1(4)). The fifteen and twenty-five-year sentences for Bachman's convictions on Counts 1, 2, and 3 were to run consecutively. His life sentence on Count 4 was to run concurrently with his other sentences.

DECISION I

WHETHER SUFFICIENT EVIDENCE EXISTED TO SUPPORT THE JURY'S

VERDICT ON ALL FOUR COUNTS.

Bachman first claims that there was insufficient evidence to support the jury's verdict and that his motion for acquittal should have been granted. He bases his claim upon the fact that the victims' stories were "incredible." He focuses on A.E.'s inconsistent testimony that she was raped forty to forty-five times in the course of forty to forty-five days (she had earlier stated that the number of encounters was far less), that up to eight men were involved in her molestations (no other men were identified or apprehended), and the fact that the girls' physical examinations showed no clear signs of sexual abuse.

Our review requires that we accept the evidence and the inferences that the jury may have drawn therefrom in support

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of the verdict. The jury's verdict will not be set aside if the evidence and the reasonable inferences drawn therefrom sustain a rational theory of guilt. See State v. McCafferty, 356 N.W.2d 159 (S.D.1984). See also State v. Ree, 331 N.W.2d 557 (S.D.1983); State v. Grey Owl, 316 N.W.2d 801 (S.D.1982); State v. Herrald, 269 N.W.2d 776 (S.D.1978); State v. Boyles, 260 N.W.2d 642 (S.D.1977). The trial court's denial of his motion for acquittal will not be disturbed if the State made out a prima facie case from which the jury could reasonably find the defendant guilty. State v. Dirk, 364 N.W.2d 117 (S.D.1985)

Bachman asserts that the inconsistent testimony concerning the number of attacks, State's inability to locate the other claimed perpetrators of the molestations, and the victims' failure to report the alleged molestations for over a year constitute a sufficient basis to conclude that the evidence and the reasonable inferences drawn therefrom are insufficient to sustain a rational theory of guilt. We disagree.

Both A.E. and J.E. testified at great length concerning Bachman's activities with them. We first note that young children generally are unlikely to fabricate a graphic account of sexual activity because such an activity is beyond the realm of their experience. See McCafferty, supra. Moreover, the pediatrician who examined both of the girls testified to the existence of evidence of their having been molested. Further, two psychologists who testified concerning the mental condition of A.E. and J.E. noted that while the girls recounted their stories independently, they were remarkably similar. One psychologist also noted that it was not unusual for a child who is a victim of molestation to wait for one or two years before reporting such abuse. Finally, one psychologist noted that it is not uncommon for a child to give varying details (i.e., the number of attacks or attackers) when re-relating incidents of sexual abuse. Our review of the evidence leads us to the conclusion that sufficient evidence was presented to uphold the jury's verdict. McCafferty, supra. We further conclude that State presented a prima facie case that Bachman committed the acts and that the trial court did not err in denying his motion for acquittal. Dirk, supra.

II

WHETHER THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE

EXPERT TESTIMONY ON THE CREDIBILITY OF THE

COMPLAINING WITNESSES AND RAPE TRAUMA

SYNDROME.

Bachman next claims that the trial court erred when it admitted into evidence the opinions of Dr. Mary Curran and Dr. Vail Williams concerning the credibility of the testimony of A.E. and J.E. and allowing their testimony on rape trauma syndrome.

Bachman requested the pretrial examination of A.E. and J.E. to determine their competency to testify truthfully and to determine whether they suffered from any mental or moral delusions or tendencies which would distort their imagination and affect their credibility. The girls were evaluated by Dr. Williams, who concluded that they were competent to testify. Later, Bachman moved to suppress the testimony of Dr. Williams and Dr. Curran (whom the State planned to call to testify regarding post-traumatic stress disorders). Bachman contended that Dr. Williams' deposition testimony had accomplished its purpose of showing that A.E. and J.E. knew the nature of the proceedings and were otherwise competent to testify. At the conclusion of the pretrial hearing, the trial court denied his motion to suppress the testimony of Dr. Curran and took under advisement Bachman's motion to suppress testimony of Dr. Williams. At trial, immediately before Dr. Williams' deposition was read to the jury, an in-chambers hearing was held at which time the trial court denied Bachman's motion to suppress.

Dr. Williams, by deposition, told the jury that he interviewed both A.E. and J.E. and that, in his opinion, neither girl showed any symptoms of psychosis, delusions, or hallucinations, but that they showed some symptoms found in sexual abuse victims. Dr. Curran, who had not interviewed the children,

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gave live testimony concerning the behavior patterns that a sexually abused child would demonstrate, including their failure to disclose the claimed abuse, nightmares, insomnia, et cetera.

We first note that the trial court has broad discretion concerning the qualification of experts and the admission of expert testimony. The trial court's decision on such matters will not be reversed absent a clear showing of an abuse of discretion. State v. Logue, 372 N.W.2d 151 (S.D.1985). Bachman submits that a different standard must be used in reviewing this issue. Relying on Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), he claims that...