State v. Chamley

Decision Date20 August 1997
Docket NumberNo. 19545,19545
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Gene CHAMLEY, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, for plaintiff and appellee.

Mark E. Deboer, Office of the Public Defender, Rapid City, for defendant and appellant.

VONWALD, Circuit Judge.

¶1 Chamley appeals his conviction on one count of first degree rape, two counts of sexual contact with a child under sixteen and one count of indecent exposure. We reverse and remand for a new trial.


¶2 On September 1, 1995, K.J. and her eight-year-old daughter, W.W., planned to invite some of W.W.'s friends to spend the night at their home. The children who eventually spent the night were S.Y., who was nine years old at the time, and C.R., who was then ten years old. Another girl, N.G., was also present during the evening, but did not spend the night. That same evening, Chamley came over to visit. Chamley, who was a friend of K.J. and lived only a short distance away, was a frequent visitor and often played with the children.

¶3 At trial, W.W. and C.R. testified that while they were playing in the living room of K.J.'s home, Chamley exposed himself to them. 1 This conduct forms the basis of the indecent exposure charge. Later that evening, Chamley gave S.Y. and N.G. a "piggy back" ride from the house to a tent which was set up in the back yard. N.G. was on Chamley's shoulders and S.Y. was on his back. S.Y. testified that during the course of the piggy back ride, Chamley put his fingers beneath her underwear and inside her vagina. 2 This conduct forms the basis of the first degree rape charge.

¶4 After Chamley arrived at the tent, he put the girls down. Then Chamley, N.G., S.Y., C.R., W.W. and K.J. entered the tent. Some time later, N.G. left the tent and went home. During the time the group was in the tent, K.J. would frequently leave the tent to retrieve items for the group from the house. W.W. testified that while K.J. was in the house on one of these occasions, Chamley touched her on her chest and her private parts. She also stated that his fingers went under her clothing. 3 C.R. testified that on another of these occasions Chamley touched her chest, bottom and private area by putting his hand under her clothing. 4 These incidents form the basis for the sexual contact charges.

¶5 Chamley was found guilty on all four charges and was sentenced to life imprisonment on the rape charge, twenty-five years imprisonment on each count of sexual contact and one year imprisonment on the indecent exposure charge. All sentences were to be served concurrently. This appeal ensued. Chamley raises four issues on appeal.


¶6 Did the trial court abuse its discretion in admitting "prior bad acts" evidence involving Chamley's alleged sexual misconduct?

¶7 Prior to trial, state filed its notice of intent to use 404(b) evidence alleging sexual acts or encounters involving Chamley and his ex-stepdaughter, A.L., beginning when she was six and continuing until she was fourteen. 5 State offered the prior bad acts evidence to establish absence of mistake or accident and intent. The four instances of "prior bad acts" included: (1) an act in which Chamley is alleged to have masturbated in front of A.L. when she was six; (2) an act in which Chamley allegedly requested A.L. to pose nude for photographs when she was seven or eight; (3) an act in which Chamley allegedly had oral sexual contact and penetration upon A.L. when she was nine; and (4) an act in which Chamley touched A.L.'s breasts when she was fourteen. These four incidents took place from twelve to twenty years prior to the trial. 6 After a hearing on the matter, the trial court granted state's request to use the 404(b) evidence, stating that the probative value of the evidence substantially outweighed any prejudicial effect and that the evidence "establish[ed] a mirror image of the events charged in the present case." The decision to admit evidence at trial is a matter within the discretion of the trial court and is reviewed under an abuse of discretion standard. State v. Fowler, 1996 SD 78, p 12, 552 N.W.2d 92, 94. Our test on review is not whether we would make a similar ruling, but rather whether a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Barber, 1996 SD 96, p 14, 552 N.W.2d 817, 820.

¶8 The trial court's decision to admit the prior bad acts is governed by SDCL 19-12-5 (Fed.R.Evid. 404(b)). SDCL 19-12-5 states:

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.

¶9 This statute establishes a general rule that evidence of crimes or acts, other than the ones with which a defendant is charged, is inadmissible. SDCL 19-12-5; State v. Moeller, 1996 SD 60, p 12, 548 N.W.2d 465, 471 (S.D.1996); In re R.S.S., 474 N.W.2d 743, 747 (S.D.1991). The reason for this rule is simple. There is a danger that the jury may use the prior bad acts to convict a defendant because they believe the defendant is a bad person. Moeller, 1996 SD 60 at p 12, 548 N.W.2d at 471; In re R.S.S., 474 N.W.2d at 747. The jury may also believe that because the defendant committed a similar offense on another occasion he has a propensity to commit the offense charged. State v. Steele, 510 N.W.2d 661, 668 n. 8 (S.D.1994). Because of these dangers, courts must carefully consider requests to use prior bad acts evidence and must remain "ever vigilant" so as to ensure that the general rule excluding prior bad acts evidence is not swallowed up by the exceptions. Id. at 667.

¶10 Before being admitted, prior bad acts evidence must pass a two-prong test: (1) the intended purpose for offering the other acts evidence must be relevant to some material issue in the case (Barber, 1996 SD 96 at p 15, 552 N.W.2d at 820 (citations omitted)); and (2) the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice. SDCL 19-12-3. The first inquiry concerns factual relevancy, whether the proffered evidence has any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence. SDCL 19-12-1 (Fed.R.Evid. 401). The second inquiry is addressed to legal relevancy, whether the probative value of the proffered evidence substantially outweighs the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. SDCL 19-12-3 (Fed.R.Evid. 403). In addition to considering this two-prong test, the trial court must also identify the specific exception under which the bad acts evidence is to be admitted. Barber, 1996 SD 96 at p 15, 552 N.W.2d at 820. In the instant case, the trial court determined that the prior bad acts were relevant, ruled that the probative value of the prior bad acts evidence substantially outweighed the prejudicial effect of their admission and identified the specific exceptions under which the evidence was admitted.


¶11 One of the purposes for which state offered the prior bad acts was to establish lack of mistake or accident. Chamley, however, has denied that he committed any of the charged acts. His defense at trial was not based on a mistaken or accidental touching. Thus, there was no need for state to introduce the prior bad acts to prove lack of mistake or accident. State must show some connection between the reason they offer the prior bad acts and either their or the defendant's theory of the case. 7 See, e.g., State v. Champagne, 422 N.W.2d 840, 843 (S.D.1988) (when identity of the defendant is not in issue, other acts evidence is not admissible under the common plan, design or scheme exception to identify defendant as perpetrator; such evidence can only be misused to establish propensity). If the situation were otherwise, state would be able to admit prior bad acts for no relevant or probative purpose. The prior bad acts were improperly admitted to show lack of mistake or accident.

¶12 The only other purpose for which state was allowed to use the prior bad acts was to show intent. When considering whether admission of prior bad acts is probative of intent, trial courts should compare, among other factors, the similarity between the prior bad acts and the crimes with which the defendant is charged. State v. Titus, 426 N.W.2d 578, 579-80 (S.D.1988); Moeller, 1996 SD 60 at p 28, 548 N.W.2d at 475 ("In allowing bad acts evidence to prove ... specific intent, our cases have routinely focused on two important factors: (1) similar victims and (2) similar crimes" (citations omitted)). A prior bad act not similar in some important respect to the charged conduct is unlikely to be probative of whether the defendant intended to commit the charged crime. Moeller, 1996 SD 60 at p 16, 548 N.W.2d at 472. The trial court in this case made such a comparison and concluded that the prior bad acts were a "mirror image" of the present charges.

¶13 The instances of prior bad acts included: (1) an act in which Chamley is alleged to have masturbated in front of A.L. when she was six; (2) an act in which Chamley allegedly requested A.L. to pose nude for photographs when she was seven or eight; (3) an act in which Chamley allegedly had oral sexual contact and penetration upon A.L. when she was nine; and (4) an act in which Chamley touched A.L.'s breasts when she was fourteen. Testimony from A.L. elicited at trial indicated that the first act occurred when Chamley was at home with A.L. while her mother,...

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