State v. Guthmiller

• Decision Date: 16 July 2003
• Docket Number: No. 22341.,22341.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dale GUTHMILLER, Defendant and Appellant.
• Court: South Dakota Supreme Court

667 N.W.2d 295

2003 SD 83

STATE of South Dakota, Plaintiff and Appellee, v. Dale GUTHMILLER, Defendant and Appellant.

No. 22341.

Supreme Court of South Dakota.

Argued February 11, 2003.

Decided July 16, 2003.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for plaintiff and appellee.

Larry Mamula, Dakota Plains Legal Service, Rapid City, for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] A Pennington County jury convicted Dale Guthmiller (Guthmiller) of criminal pedophilia. He was also found to be a habitual offender. The trial court sentenced him to life in prison without parole. Guthmiller appeals his conviction and sentence. We affirm.

FACTS

[¶ 2.] Guthmiller, also known as Wrench, owned a motorcycle shop called "Wrench's Repair." Guthmiller hired acquaintance M.B. to organize the paperwork for the business. On July 9, 2001, M.B. arrived for her first day of work at approximately 8:30 a.m. She brought her four-year-old daughter R.B. to the shop with her. R.B. liked to play with Guthmiller's cats while her mother worked. Shortly after arriving, Guthmiller and M.B. smoked drugs together.

[¶ 3.] Later that afternoon, between 3:00 p.m. and 4:00 p.m., Don Rice (Rice) came to the shop looking for Guthmiller. M.B. directed him to the back of the shop where she thought Guthmiller was working. Returning from the back of the shop, Rice indicated to M.B. that he had not found Guthmiller. M.B. realized that R.B. was also missing. A few minutes later Guthmiller and R.B. appeared. Guthmiller explained that he had taken R.B. to the bathroom. This was the second time that day he had taken her to the bathroom. R.B. ran to her mother asking to go home. M.B. told R.B. to watch a movie while she finished her work. R.B. fell asleep on the couch.

[¶ 4.] R.B. spent the next day at her grandparent's house. Grandmother overheard R.B. repeatedly say to a playmate, "He won't let me play with the kittens." When R.B.'s grandmother asked her to whom she referred, R.B. replied, "I can't tell you." After grandmother's further urging, R.B. blurted out, "it was Wrench he licked my butt and said it was a secret and if I told anybody he wouldn't let me play with the kittens."

[¶ 5.] Later that same day R.B. repeated her "secret" to her mother expressing, "yes, Wrench licked my butt." M.B. reported R.B.'s story to the police. On July 11, 2001, an investigator contacted M.B. On July 12, 2001, R.B. was taken to Black Hills Pediatrics for an interview and medical exam.

[¶ 6.] Guthmiller was arrested and charged with criminal pedophilia. A Pennington County jury convicted Guthmiller of the charge. The trial court also found on a Part II Information that Guthmiller was a habitual offender. Guthmiller was subsequently sentenced to life imprisonment without parole. Guthmiller appeals the following issues:

1. Whether the trial court erred in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.

2. Whether the trial court erred in finding R.B. competent to testify.

3. Whether the trial court erred in denying Guthmiller's motion for mistrial.

4. Whether the trial court erred in denying Guthmiller's motion for a new trial based on new evidence.

5. Whether the trial court erred in not dismissing the Part II Habitual Offender Information.

6. Whether the trial court erred in preventing Guthmiller from offering testimony relating to various matters.

7. Whether the trial court erred in sentencing Guthmiller to life in prison and whether the sentence is cruel and unusual punishment in violation of the United States and South Dakota Constitutions.

DECISION

1. Whether the trial court erred in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.

2. Whether the trial court erred in finding R.B. competent to testify.

[¶ 7.] The four-year-old child victim, R.B., testified at trial. The trial court also allowed R.B.'s statements to a friend and to her grandmother to be presented to the jury. Because issues one and two deal with the issue of R.B.'s competency to testify, we will address them together.

[¶ 8.] When reviewing evidentiary rulings this Court applies an abuse of discretion standard. State v. Cates, 2001 SD 99, ¶ 10, 632 N.W.2d 28, 33 (citing State v. Peterson, 1996 SD 140, ¶ 8, 557 N.W.2d 389, 391). "We review evidentiary decisions deferentially, reversing only when the court has abused its discretion." State v. Dillon, 2001 SD 97, ¶ 24, 632 N.W.2d 37, 47 (citations omitted).

[¶ 9.] Reliable hearsay statements by a child under ten describing acts of sexual contact or rape are admissible under SDCL 19-16-38 which provides:

A statement made by a child under the age of ten, or by a child ten years of age... describing any act of sexual contact or rape performed with or on the child by another, ... not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant ... in the courts of this state if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

[¶ 10.] Guthmiller asserts that the trial court erred in finding that R.B. was competent to testify. Guthmiller maintains that because R.B. was not competent to testify, she was unavailable as a witness; and since she was unavailable as a witness, her statements should not have been admitted without corroborating evidence. SDCL 19-16-38.

[¶ 11.] The determination of the competency of a witness "is left in the first instance to the discretionary judgment of the trial court, after informing itself by proper examination." State v. Weisenstein, 367 N.W.2d 201, 203-04 (S.D.1985) (quoting State v. Reddington, 7 S.D. 368, 377, 64 N.W. 170, 172-73 (1895)). There is no arbitrary age which prohibits a child from testifying. State v. Anderson, 2000 SD 45, ¶ 24, 608 N.W.2d 644, 653 (citations omitted). In order to be a competent witness, a child must have "sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility...." Weisenstein, 367 N.W.2d at 204 (citations omitted). Our preference is to allow the child to testify in order for the jury to evaluate the child's credibility. Anderson, 2000 SD 45, ¶ 30, 608 N.W.2d at 654.

[¶ 12.] The trial court initially determined that R.B. was competent to testify on October 2, 2001, on a motion to dismiss. On November 6, 2001, at another motion hearing, the trial court observed R.B. testify regarding her knowledge of the difference between a truth and a lie and viewed a tape of the interview between the Pennington County investigator and R.B. The court found R.B. competent to testify based on her ability to remember and relate what she saw. At trial, the court again repeated its finding that R.B. was competent to testify. "[A] trial judge is vested with wide discretion in determining competency and on appeal, its ruling is entitled to great weight, as it has had the opportunity to see and hear the child." Anderson, 2000 SD 45, ¶ 23, 608 N.W.2d at 653 (citing State v. Pace, 301 So.2d 323, 325 (La.1974)).

[¶ 13.] The trial court additionally determined that R.B.'s statements bore sufficient indicia of reliability. Because R.B. testified at trial and the statements possessed sufficient indicia of reliability, no corroborating evidence was necessary. State v. Cates, 2001 SD 99, ¶ 10, 632 N.W.2d 28, 34.

As witnesses, children are neither inherently reliable nor inherently unreliable. Each child's statement must be evaluated on its own merits. Several factors should be considered when assessing reliability. These include:

(1) the child's age and maturity; (2) the nature and duration of the abuse; (3) the relationship of the child to the offender; (4) the coherence of the statement, bearing in mind that young children may sometimes describe incidents in age appropriate language and in a disorganized manner; (5) the child's capacity to observe, retain, and communicate information; (6) the nature and character of the statement itself, considering the child's developmental limitations in understanding and describing sexual behavior; (7) any motivation of the child to make a false allegation or a false denial; (8) the child's susceptibility to suggestion and the integrity of the situation under which the statement was obtained; and (9) all the circumstances under which the statement was made.

Id. at ¶ 11, 632 N.W.2d at 34 (citations omitted). No one factor is dispositive. Id. "The unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made." State v. Floody, 481 N.W.2d 242, 251 (S.D. 1992) (quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638, 656 (1990)). The trial court must look at the totality of the circumstances. Wright, 497 U.S. at 819,110 S.Ct. at 3148,111 L.Ed.2d 638 (1990).

[¶ 14.] In making its decision, the trial court properly looked at the totality of the circumstances and addressed the factors necessary to determine the reliability of the child's testimony. The trial court entered the following findings of fact and conclusions of law after the November 6, 2001 hearing:

1. The child is able to recall past events in detail and relate them in a coherent manner.

2. The child's description of the defendant's actions contained consistent detail.

3. The child demonstrated knowledge of right and wrong and the difference between truth and falsehood.

4. There is no evidence of any reason for the child to fabricate her story....

5. The child knew the defendant...