State v. Christopherson

• Decision Date: 13 April 1992
• Docket Number: No. 17314,17314
• Citation: 482 N.W.2d 298
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Mark O. CHRISTOPHERSON, Defendant and Appellant. . Re
• Court: South Dakota Supreme Court

Page 298

482 N.W.2d 298

STATE of South Dakota, Plaintiff and Appellee, v. Mark O. CHRISTOPHERSON, Defendant and Appellant.

No. 17314.

Supreme Court of South Dakota.

Resubmitted on Briefs Dec. 31, 1991.

Decided March 4, 1992.

Rehearing Denied April 13, 1992.

Mark Barnett, Atty. Gen., Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Steven R. Binger, Sioux Falls, Philip G. Villaume, Bloomington, Minn., for defendant and appellant.

MILLER, Chief Justice.

ACTION

Mark O. Christopherson appeals from his conviction for three counts of sexual contact with a minor. We affirm.

FACTS

Christopherson, who had taught special education for approximately twenty years in and around Madison, South Dakota, was charged with five counts of sexual contact with a minor (SDCL 22-22-7) and one count of rape (SDCL 22-22-1(5)). The six counts against Christopherson arose solely out of his sexual contact with a fourteen year old boy (hereinafter called D.D.). Christopherson allegedly masturbated D.D. on five occasions while Christopherson was a guest at the home of D.D.'s parents. D.D. also alleged that Christopherson once performed oral sex on him.

The factual circumstances underlying each count are substantially similar. D.D. would sleep on the living room couch when Christopherson stayed overnight. Christopherson and his family would sleep upstairs in D.D.'s bedroom. Christopherson would come downstairs and talk to D.D. late in the evening. Christopherson would eventually take D.D's pants and underwear down to his ankles. Then, while watching the stairs to be sure not to get caught, Christopherson would masturbate D.D. Meanwhile, Christopherson's family and D.D.'s parents were sleeping upstairs.

Christopherson pled not guilty and asserted an alibi defense. He filed a motion to prevent State from using testimony of five other adult males who also claimed Christopherson had sexual contact with them while they were minors. The trial court held an evidentiary hearing on the proposed bad act evidence and ruled that testimony from three of the witnesses was admissible, but excluded testimony from two other witnesses.

At trial, Christopherson proposed a jury instruction, which set forth the "reasonable doubt" standard and distinguished it from the "clear and convincing evidence" standard. The trial court rejected Christopherson's proposed jury instruction and gave the pattern jury instruction on "reasonable doubt."

The jury found Christopherson guilty of three counts of sexual contact. (He was found not guilty of two counts of sexual contact and not guilty of rape.) The trial judge sentenced Christopherson to five years in the penitentiary on each count, with the sentences to be served consecutively. Christopherson appeals, asserting that the trial court erred in admitting the prior bad act evidence and in refusing to give his proposed jury instruction.

ANALYSIS

WHETHER ALLOWING THE ADMISSION OF BAD ACT EVIDENCE WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

A trial court's decision to admit bad act evidence will not be overturned unless the trial judge abused his discretion. State v. Chapin, 460 N.W.2d 420, 421 (S.D.1990).

SDCL 19-12-5 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.

Trial courts must follow a two step process to decide whether bad act evidence is admissible. State v. Champagne, 422 N.W.2d 840, 842 (S.D.1988). First, the trial court determines if the bad act evidence is relevant to the issues on trial. Id. Once relevancy has been established, the trial court must decide if the probative value of the evidence is substantially outweighed by its prejudicial effect. State v. Basker, 468 N.W.2d 413, 415 (S.D.1991). The court must analyze the nature and facts of the prior bad acts to perform the balancing test. Chapin, 460 N.W.2d at 422; State v. Titus, 426 N.W.2d 578 (S.D.1988). Similarly, it is important that evidence of the nature and facts of the prior bad acts goes before the jury so they know why the evidence is relevant and the purpose of its admission. Chapin, 460 N.W.2d at 422.

The trial court held an evidentiary hearing on Christopherson's motion to exclude evidence of prior bad acts. Three of the men testified concerning Christopherson's sexual contact with them. Statements were introduced from two other witnesses describing Christopherson's sexual contact with them. The three witnesses relevant to this appeal testified to the following facts at the evidentiary hearing and at trial.

D.W. testified that Christopherson had sexual contact with him when he was approximately 12 years old, in 1973. D.W. went camping with family and friends, including Christopherson. D.W. shared a tent with Christopherson. During the night, Christopherson got into D.W.'s sleeping bag and unzipped D.W.'s jeans. Christopherson fondled D.W.'s testicles and penis. Despite D.W.'s resistance, Christopherson continued masturbating D.W. for approximately 10 to 15 minutes. While this was going on, family and friends were sleeping nearby in tents and campers.

S.P. testified that Christopherson started a conversation with him at the local swimming pool in 1979. S.P. was about 15 years old at the time. Christopherson invited S.P. and his mother to visit his home to see his antiques. Christopherson developed a friendship with S.P. and his mother. At that point in his life, S.P. was considering becoming a minister or a counselor. Later in 1979, Christopherson told S.P. he was taking some of his special education students on a camping trip. He invited S.P. to come along to help counsel the students. Christopherson said a female student had a crush on S.P. which needed to be confronted. Christopherson and S.P. went on this camping trip after getting permission from S.P.'s mother. S.P. discovered at the campsite that only he and Christopherson were on this camping trip. During the night, Christopherson placed his elbow on S.P.'s neck and held him down while he masturbated and performed oral sex on him. S.P. unsuccessfully resisted. After the sexual contact, Christopherson told S.P. that he was homosexual and wanted to come to Jesus. He asked S.P. to help him pray to God for forgiveness. He told S.P. to keep it a secret between them.

D.S. testified that he was a student in Christopherson's special education class for six years, from 1977 through 1983. The first sexual contact Christopherson had with D.S. was in 1977 when D.S. was about 14 years old. Christopherson told D.S. to try on some new gym shorts and then fondled him through the shorts. Over the six years, several times a week, Christopherson would tell the other special education students to go to study hall while he gave D.S. a "reading" lesson. Christopherson would lock the door and masturbate D.S. to ejaculation. Eventually, Christopherson performed oral sex on D.S. Christopherson told D.S. this activity was their secret. Still, D.S. told his parents and they contacted the principal. Christopherson told D.S. to recant his story and Christopherson could arrange to get him out of special education class. D.S. recanted his story.

The trial judge also heard evidence about Christopherson's sexual contact with two other boys; J.B. and J.T. The trial judge analyzed the evidence and determined that the evidence of Christopherson's contact with D.S., D.W. and S.P. was admissible, but that evidence concerning J.B. and J.T. was not admissible.

Asserting an alibi puts identity into issue. See State v. Thomas, 381 N.W.2d 232 (S.D.1986). In Thomas, we quoted approvingly from People v. Williams, 115 Cal.App.3d 446, 171 Cal.Rptr. 401 (1981), that "[e]vidence of other sex offenses having distinctive, similar characteristics to those charged is generally admissible on the issue of defendant's identity if such offenses are not too remote in time[,] are sufficiently similar to the offense charged, and are committed upon persons similar to the prosecuting witness." Thomas, 381 N.W.2d at 236 citing Williams, 115 Cal.App.3d at 452, 171 Cal.Rptr. at 404. See also State v. Willis, 370 N.W.2d 193 (S.D.1985) (bad act evidence admitted to show common plan or scheme to compel sexual intercourse with retarded women that defendant had control over); State v. Roden, 380 N.W.2d 669 (S.D.1986) (common scheme of circumstances in a sexual abuse case showing pattern of satisfying sexual urges with children was admissible under the plan exception); and, Espey v. State, 407 So.2d 300 (Fla.Dist.Ct.App.1981) (bad act evidence admissible where evidence showed that defendant "committed at least a score more on five other young members of his family, in the same location, in the same manner continuously over an eighteen year period....")

The bad act testimony in this case was admissible to prove a plan or a common scheme to develop situations which allowed Christopherson to have sexual contact with young boys. First he would pick out an impressionable boy in his early teens. Christopherson always picked boys whose parents he knew or could get friendly with, making it more difficult for the boy to confide with his parents. Christopherson then used his role as an authority figure (teacher, supervisor or family friend) to work the boy into a situation where Christopherson was alone with him and able to have sexual contact. In each case Christopherson would tell the boy to keep it a secret. Christopherson would play off the desires or insecurities of the boy by promising a car, praying to God for forgiveness, or promising to get the boy out of special education. Christopherson never asked any of the boys to do anything to him.

Alternatively, the bad act evidence was admissible to prove intent. As we noted in Basker, the...