State v. Big Crow

• Decision Date: 23 September 2009
• Docket Number: No. 24949.,24949.
• Citation: 773 N.W.2d 810,2009 SD 87
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James BIG CROW, Defendant and Appellant.
• Court: South Dakota Supreme Court

773 N.W.2d 810

2009 SD 87

STATE of South Dakota, Plaintiff and Appellee, v. James BIG CROW, Defendant and Appellant.

No. 24949.

Supreme Court of South Dakota.

Considered on Briefs on August 24, 2009.

Decided September 23, 2009.

Marty J. Jackley, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Elizabeth Lorina of Gonzalez Law Firm, Rapid City, South Dakota, Attorneys for defendant and appellant.

ZINTER, Justice.

[¶ 1.] James Big Crow was charged with two counts of incestuous sexual contact involving his niece. After a hearing, the circuit court allowed admission of acts of incestuous sexual contact involving two other nieces. The court admitted the other acts evidence to prove a common plan, design or scheme under SDCL 19-12-5 (Rule 404(b)). The jury convicted and Big Crow appeals.

Facts and Procedural History

[¶ 2.] Big Crow was charged with incestuous sexual contact with his niece, D.P., in violation of SDCL 22-22-19.1 (2004).¹ According to the State's evidence, the abuse occurred when D.P. was approximately eight or nine years-old. At that time, D.P. was doing tasks for Big Crow in his home. On the first occasion, D.P. was lying on a couch watching a movie. D.P testified that while she was watching the movie, Big Crow came into the room naked and began playing a pornographic movie. Big Crow then called D.P.'s name. She testified that she was uncomfortable because he was naked, so she pretended to sleep. Big Crow, however, continued to call D.P.'s name and she answered. Big Crow asked D.P. if she liked the pornographic movie, and she shrugged her shoulders. She then went to the bathroom to be by herself. While on her way to the bathroom, Big Crow asked her to go into the kitchen and get a tape measure so she could measure his penis. She obeyed. Big Crow then had D.P. touch his erect penis.

[¶ 3.] D.P testified that about a week later, she was at Big Crow's house doing dishes when she laid down on the couch to watch television. Big Crow again came out naked and asked her to give him a "big hug," which she did. Big Crow then said he was going to take a shower. While in the bathroom, he told her to come in. D.P. went into the bathroom and Big Crow said: "Feel this. Feel this." Big Crow took her hand, placed it on his erect penis, and moved her hand back and forth. D.P. testified that the stroking lasted about thirty seconds until she pulled her hand away. Big Crow subsequently went to his room and began calling D.P.'s name again, telling her to come to his room. She complied and saw him lying on the bed naked. Big Crow asked for a hug, and D.P. hugged him for a short time until he grabbed her and sat her on top of him. She testified that she was wearing clothes, that she could tell his penis was erect, and that Big Crow began "moving up and down."

[¶ 4.] At trial, Big Crow denied D.P.'s allegations. Rapid City Police Department Detective Steven Neavill had interviewed Big Crow. Neavill testified Big Crow admitted that on one occasion he was in his bed naked and he asked D.P. to give him a hug. Big Crow, however, claimed that he had covers on top of him and he denied that he ever had D.P. touch his penis.

[¶ 5.] Over Big Crow's objection, the State presented evidence from two other alleged victims. M.H., another niece of Big Crow's, testified that when she was ten or eleven, she was asleep on the floor at her mother's home when Big Crow woke her and placed her hand on top of his pants and started rubbing her hand over his erect penis. Big Crow denied M.H.'s accusations.

[¶ 6.] The other alleged victim was B.M., Big Crow's great-niece. B.M. testified that when she was fourteen, she was sleeping at her grandmother's home when she woke to find Big Crow feeling her between her legs on top of her clothes. According to B.M., Big Crow also put her hand on his bare, erect penis. Big Crow testified that he did not have his hand between her legs, but that he may have placed his hands on her chest or stomach.

[¶ 7.] The circuit court allowed M.H.'s and B.M.'s testimony under SDCL 19-12-5 (Rule 404(b)), finding the evidence relevant and not substantially more prejudicial than probative. With respect to relevance, the court found that Big Crow had a "scheme, intent, design, [ ] to single out young females for which he did exert some influence as their [respected] elder and family member. So the type of the actions that were allegedly performed and the age range of the young ladies at the time involved are consistent with those sorts of patterns." With respect to prejudice, the court found: "This type of evidence is always prejudicial, there is no question about it. That's why the balancing test is there to determine whether its more probative to allow it in." The court continued, "I do feel it meets the requirements . . . as to Mr. Big Crows actions at the time in question." We review these rulings under the abuse of discretion standard. State v. Chernotik, 2003 SD 129, ¶ 28, 671 N.W.2d 264, 274. An abuse of discretion is "discretion exercised to an end or purpose not justified by and clearly against, reason and evidence." State v. Machmuller, 2001 SD 82, ¶ 9, 630 N.W.2d 495, 498.

Decision

[¶ 8.] The admission of other 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.

In interpreting the "plan" exception in the statute, this Court has followed those authorities allowing other acts not only where the charged and uncharged acts are part of a single, continuing conception or plot, but also where the uncharged misconduct is sufficiently similar to support the inference that they are manifestations of a common plan, design or scheme to sexually abuse different victims. See State v. Ondricek, 535 N.W.2d 872, 875 (S.D.1995) (citing State v. Champagne, 422 N.W.2d 840, 842 (S.D.1988)). A "`common plan, design or scheme' refers to a larger continuing plan, scheme or conspiracy of which the present crime charged at trial is only a part[.]" Id. (quoting Champagne, 422 N.W.2d at 842). Although we acknowledged that "`common plan, design or scheme' . . . is often relevant to show motive, intent, knowledge or identity," we also acknowledged "[b]y showing that the earlier schemes bore a singular strong resemblance to the pattern of the offense charged, the government establishes a preexisting plan or design which, in turn tends to show the doing of the act designed." Id. (citing United States v. Weidman, 572 F.2d 1199, 1202-03 (7th Cir. 1978)).

[¶ 9.] Application of the broader "common" plan exception is well recognized in sex abuse cases. In People v. Ewoldt, 7 Cal.4th 380, 393-94, 27 Cal.Rptr.2d 646, 867 P.2d 757, 776 (1994), the California Supreme Court considered conflicting authorities before rejecting the view that the "plan" exception is limited to a single, continuing conception or plot. Instead, California followed those authorities holding that evidence of a defendant's "uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan." Id. at 401-02, 27 Cal.Rptr.2d 646, 867 P.2d at 776 (emphasis added). Ewoldt noted:

"The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done." (1A Wigmore, Evidence (Tillers rev. ed. 1983) § 102, p. 1666). . . . The existence of such a design or plan also may be proved circumstantially by evidence that the defendant has performed acts having "such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." (2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 304, p. 249, italics omitted.)

Id. at 393-94, 27 Cal.Rptr.2d 646, 867 P.2d at 764 (citations omitted). Consequently, "evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts." Id. at 403, 27 Cal. Rptr.2d 646, 867 P.2d at 770. Ewoldt concluded that similar acts of uncharged abuse of a stepdaughter were admissible to prove the charged act of abuse of another stepdaughter. The California Supreme Court reasoned:

[E]vidence of defendant's uncharged misconduct shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan. Such evidence is relevant to establish that defendant committed the charged offenses in accordance with that plan.

Id. at 403, 27 Cal.Rptr.2d 646, 867 P.2d at 771.

[¶ 10.] We adopted the Ewoldt reasoning in State v. Wright, noting, "[u]nlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." 1999 SD 50, ¶ 18, 593 N.W.2d 792, 800 (quoting Ewoldt, 7 Cal.4th at 403, 27 Cal.Rptr.2d 646, 867 P.2d at 770). Therefore, "[a] plan or design can be shown circumstantially with evidence that the defendant committed a series of similar but `unconnected' acts." Id. ¶ 19 (quoting Ewoldt, 7 Cal.4th at 400, 27 Cal. Rptr.2d 646, 867 P.2d at 768-69).

[¶ 11.] Big Crow, however, argues that "the similarities among [the charged and uncharged acts] are much more shallow than in other cases wher...