State v. Buchholtz

• Citation: 841 N.W.2d 449,2013 S.D. 96
• Decision Date: 18 December 2013
• Docket Number: No. 26623.,26623.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kevin Edward BUCHHOLTZ, Defendant and Appellant.
• Court: Supreme Court of South Dakota

841 N.W.2d 449

2013 S.D. 96

STATE of South Dakota, Plaintiff and Appellee,

v.Kevin Edward BUCHHOLTZ, Defendant and Appellant.

No. 26623.

Supreme Court of South Dakota.

Considered on Briefs Nov. 4, 2013.

Decided Dec. 18, 2013.

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

Traci Smith, Office of the Minnehaha, County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Kevin Edward Buchholtz appeals his convictions for two counts of first-degree rape, one count of sexual contact, and one count of indecent exposure, all involving a single child victim.

Background

[¶ 2.] B.L., age six, and her family moved into a trailer park in Valley Springs, South Dakota in June 2011. On Saturday, June 11, 2011, B.L. went over to visit one of her neighbors, Kevin Buchholtz. She had been there earlier in the week with some other children. This time she came alone. Buchholtz was cleaning his garage.

[¶ 3.] B.L. would later testify in trial that while in the garage, Buchholtz told her to pull down her pants: “I pulled them down when he said.” “[T]hen he touched my pee-pee ... with his finger.” She said that he touched her both on the outside and the inside. Buchholtz asked her, “Does that feel good?” She responded, “Kind of.” She pulled her pants back up. Then, she testified, Buchholtz took her into his bedroom, where he again had her pull down her pants and he “touched [her] pee-pee.” She indicated that he used his right hand index finger to touch the outside and inside of her vagina. She then saw Buchholtz's “pee-pee” with his pants “[d]own a little bit” and “[h]e squirted stuff out, like lotion or something.” He later washed the “lotion” off his hands in the bathroom. She testified that Buchholtz gave her a drink: “It was kind of a Pepsi or something.” When they went back outside, he said, “Here is a doll for you, if you don't tell no one.” She took the doll and left. That night while in the tub, she told her grandmother what had happened.

[¶ 4.] At trial, Buchholtz, then age fifty-seven, denied any sexual contact with B.L. or exposing himself to her. She had been to his home, he said, the previous weekend with some other girls. They had asked to use the bathroom. While in the kitchen, “I looked up and I seen her head poking out of my bedroom. And I asked her what she was doing and she just kind of smiled.” He told her, “You can use the bathroom and get out. You're not to be in that bedroom.” In recounting the day in question, he told the jury that when she arrived, he had her help him by picking up bolts and screws off the floor. They played a guessing game for a short while, and he returned to his chores. While he was working, she said to him, “Hey, look.” He turned around; she “had raised her shirt up.” “I says, no, this is not right. And I says, put it down, and I pushed it down on her.” B.L. asked to use his bathroom. She went inside for five minutes. He remained in the garage. Later, he gave her a drink and chips and a doll that had been left behind by a girlfriend's grandchild. When a friend then came over to visit, B.L. soon left. Buchholtz testified that the next day he went over to B.L.'s grandmother's house. But the grandmother was upset and told him to leave. Confused by this response, he said she offered him no explanation.

[¶ 5.] The investigation began on Monday, June 13, two days after the incident, when B.L.'s mother took her to the Department of Social Services (DSS) to report a rape. The next day upon referral from DSS, Detectives Jennifer VanRoekel and Derek Kuchenreuther of the Minnehaha County Sheriff's Office visited B.L. and her mother. B.L. described the events at Buchholtz's home. VanRoekel arranged for a forensic interview at Child's Voice for the following day.

[¶ 6.] At Child's Voice, Colleen Brazil, a forensic interviewer, questioned B.L. Brazil later testified at trial that B.L. said Buchholtz touched both inside and outside her vaginal area. Brazil said that B.L. was able to demonstrate a masturbating motion Buchholtz made before “white stuff,” as B.L. put it, squirted from his penis. B.L. also described a black blanket on Buchholtz's bed and said that at the time she was in his bedroom, he wore black pants and black underwear. B.L. also recalled a flowery shirt on Buchholtz's floor. Dr. Nancy Kertz, Ph.D. in Nursing, observed the forensic interview and conducted a physical examination of B.L. The physical examination was normal.

[¶ 7.] After observing the forensic interview, VanRoekel obtained an arrest warrant for Buchholtz and a search warrant for his home. When executing the search warrant, officers seized a floral pattern shirt, a black comforter, several pairs of men's black underwear, and a pair of black jean shorts on the floor of Buchholtz's bedroom. The clothing appeared consistent with B.L.'s descriptions. Buchholtz was charged with eleven counts, including rape, sexual contact, and indecent exposure. Counts one through four involved B.L. Counts five through eleven involved other alleged victims.

[¶ 8.] At trial, VanRoekel testified about her investigation. On cross-examination, defense counsel asked her:

Q: And [Buchholtz] continually denied touching [B.L.] inappropriately?

A: Yes.

Q: And you would expect a denial from somebody who was falsely accused of a crime?

A: Yes.

On redirect, over Buchholtz's objection, the State asked VanRoekel:

Q: Would you also expect a denial from someone who had done the crime?

A: Yes.

Q: Why is that?

....

A: Okay. It's hard—this is something very hard for people to admit to it, they're going to be in the media. People are always going to remember that. The only thing worse that [sic] this type of crime is having somebody killed. It's the second worse type of crime that we deal with, is sex crimes against kids. It's very hard for people to admit when they have done something like that and to have other people know about it, so they will deny it initially.

[¶ 9.] As an expert witness for the State, Dr. Kertz testified that she observed no abnormal findings during her physical examination, but said that was not unusual. She explained that ninety-five percent of sexually abused children exhibit no physical findings of sexual abuse. Nonetheless, Dr. Kertz testified that based on the many “contextual details” about what B.L. heard, felt, and saw, Dr. Kertz had sufficient evidence to make a medical diagnosis of “child sexual abuse.” Buchholtz's objection to this opinion was overruled.

[¶ 10.] The jury found Buchholtz guilty of counts one through four, and the State dismissed counts five through eleven. He was sentenced to 25 years on count one (with credit for time served), 25 years on count two, 15 years on count three (with five years suspended), and two years on count four (suspended), with all sentences to be served consecutively.

[¶ 11.] On appeal, Buchholtz asserts the following errors: (1) allowing VanRoekel's opinion on why defendants accused of sex offenses against children do not confess during interrogation; (2) admitting B.L.'s statements made to the forensic interviewer; and (3) allowing Dr. Kertz to give a medical diagnosis of “child sexual abuse.” ¹

1. Investigator's Opinion on Absence of Confession

[¶ 12.] Buchholtz argues that the trial court erroneously allowed VanRoekel to testify about why defendants accused of sex crimes against children fail to confess during interrogation. Ruling that Buchholtz opened the door to this line of questioning, the court permitted the testimony. Courts have discretion to allow an ordinarily inadmissible inquiry when an adversary “opens the door” to that line of inquiry. Veith v. O'Brien, 2007 S.D. 88, ¶ 27, 739 N.W.2d 15, 24 (citations omitted); State v. Letcher, 1996 S.D. 88, ¶¶ 25–26, 552 N.W.2d 402, 406–07 (citations omitted).

[¶ 13.] Buchholtz asked VanRoekel on cross examination: “And you would expect a denial from somebody who was falsely accused of a crime?” In response, the State asked on redirect: “Would you expect a denial from someone who had done the crime?” VanRoekel answered “Yes,” and explained:

Okay. It's hard—this is something very hard for people to admit to it, they're going to be in the media. People are always going to remember that. The only thing worse [than] this type of crime is having somebody killed. It's the second worse type of crime that we deal with, is sex crimes against kids. It's very hard for people to admit when they have done something like that and to have other people know about it, so they will deny it initially.

[¶ 14.] From our point of view, had it not been for Buchholtz's question on cross-examination, the jury would have heard nothing about what could be inferred from an accused child molester's denial. When Buchholtz inquired into the significance of his denial, the door was opened, and the court had discretion to allow the State to put the denial in context and prevent a potentially misleading inference to lodge in the minds of the jurors.

[¶ 15.] Buchholtz further maintains that VanRoekel did not have the proper training or educational background to offer such an opinion. He objected at trial to the rebuttal testimony as beyond the scope of VanRoekel's expertise and training. But it was Buchholtz who initially asked VanRoekel what she would expect an interviewee to do in that situation. Again, Buchholtz opened the door to this testimony, even if it may have been inadmissible in other circumstances.

[¶ 16.] Lastly, Buchholtz contends that VanRoekel's testimony invaded the province of the jury by insinuating that Buchholtz was lying. “This Court has long held that the credibility of a witness—whether a witness is telling the truth—is a question for the jury.” State v. Larson, 512 N.W.2d 732, 742 (S.D.1994) (citing State v. Wooley, 461 N.W.2d 117 (S.D.1990)). Although Buchholtz acknowledges that...