State v. Koepsell

• Decision Date: 20 April 1993
• Docket Number: No. 17948,17948
• Citation: 508 N.W.2d 591
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. LaJean KOEPSELL, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 591

508 N.W.2d 591

STATE of South Dakota, Plaintiff and Appellee, v. LaJean KOEPSELL, Defendant and Appellant.

No. 17948.

Supreme Court of South Dakota.

Considered on Briefs April 20, 1993.

Decided Nov. 17, 1993.

Rehearing Denied Dec. 23, 1993.

Mark Barnett, Atty. Gen., Joan Boos Schueller, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Steve Miller, Sioux Falls, Dennis C. McFarland of McFarland and Nicholson, Sioux Falls, for defendant and appellant.

WUEST, Justice.

Defendant LaJean Koepsell (Koepsell) appeals her conviction on one count of sexual contact and two counts of rape of her six-year-old granddaughter and one count of sexual contact with her four-year-old grandson. We affirm.

FACTS

Koepsell is the forty-nine-year-old natural mother of V.N. and grandmother to V.N.'s children, daughter L.N. and son Z.N. In January, 1991, while giving Z.N. a bath, V.N. noticed his penis was discolored and bruised. When questioned by his mother, the little boy responded that "grandpa" had done it. "Grandpa" is Gary Koepsell, Koepsell's husband of twenty years, stepfather to V.N. and step-grandfather to L.N. and Z.N.

Investigation led to grand jury indictments of both LaJean and Gary Koepsell for sexual contact with L.N. and Z.N. and the rape of L.N. Gary Koepsell pleaded guilty to sexual contact and is not involved in this appeal.

The trial court found the children competent and both testified at trial. L.N. testified that Koepsell had inserted her fingers and her tongue inside L.N.'s vagina more than once. She stated that Koepsell "stood over me with her privates in my mouth." L.N. related how on one occasion Koepsell had rubbed her genitals against L.N.'s. L.N. testified that Koepsell threatened "If you tell, I'll touch you again." Z.N. testified that Koepsell had put her tongue in his mouth, touched his penis with her tongue and fingers, had put his penis in her mouth and had instructed him to touch her genitals with his fingers. Both children testified the Koepsells had directed L.N. and Z.N. to touch one another while they watched. The children related how either Grandpa or Grandma would take photographs or videos while the other was touching L.N. or Z.N.

A jury found LaJean Koepsell guilty on two counts of rape ¹ and one count of sexual contact ² with L.N. and one count of sexual contact with Z.N. Koepsell appeals, stating two issues. We will address both issues, adding facts where necessary.

ANALYSIS

I. THE EXPERT TESTIMONY ALLOWED BY THE TRIAL COURT DID NOT GO TO THE CREDIBILITY OF THE CHILDREN.

The State moved to introduce hearsay statements made by L.N. and Z.N. to Becky McGuire (McGuire), the South Dakota Department of Social Services investigator, to child psychologist Dr. Cynthia Pilkington (Pilkington) and to V.N. ³ The trial court determined that sufficient indicia of reliability existed and allowed the hearsay testimony. Expert testimony is allowed in child sex abuse cases to assist the jury in understanding matters that normally would not lie within a layman's knowledge. State v. Svihl, 490 N.W.2d 269, 273 (S.D.1992); State v. Bachman, 446 N.W.2d 271, 275 (S.D.1989). The trial court has broad discretion concerning the qualifications of an expert and admission of expert testimony; it will not be reversed on appeal without a clear showing that it abused its discretion. State v. Floody, 481 N.W.2d 242, 249 (S.D.1992); Bachman, 446 N.W.2d at 274.

The fundamental test for the admission of expert testimony is whether it will assist the jury in resolving the factual issues before it....

'Incest is prohibited in almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse.'

Svihl, 490 N.W.2d at 273.

Koepsell claims both McGuire's and Pilkington's testimony indirectly bolstered the credibility of the testimony of L.N. and Z.N. Neither McGuire nor Pilkington expressed a direct opinion as to whether the children were telling the truth.

McGuire stated that had the children disclosed all the details in the first interview, it might have indicated the children were coached. Her opinion was that neither L.N. nor Z.N. appeared to have been coached. McGuire testified that L.N. paused a long time before answering a question concerning sexual abuse and that such a trait was common for victims of child sexual abuse. McGuire went on to testify that gradual disclosure of details was consistent with traits exhibited by victims of child sexual abuse and that L.N. and Z.N. had gradually disclosed the details of their abuse.

Pilkington testified that it would be difficult to program a four or six-year-old child and that she had seen no signs of programming or coaching in either child. In response to questioning concerning what else was discussed at particular session with Z.N., Pilkington also stated: "It's typical after there's been disclosure for me to have a discussion about truth and lies, which I did." Pilkington did not give her opinion as to Z.N.'s veracity nor did State pursue Pilkington's response. ⁴ Pilkington testified that it would concern her if a child's description of abuse was the same story, given over and over without deviation. She then stated L.N. and Z.N. had yielded their information in bits and pieces.

This court has repeatedly expressed concern as to the trial of "cases of this nature by experts" and found the admission of "expert testimony has to be resolved on a case-by-case basis." Svihl, 490 N.W.2d at 273-74; see also Floody, 481 N.W.2d at 257 (Henderson, J., concurring in result). However, where a jury of twelve ordinary South Dakota citizens has little or no knowledge concerning incest and sexual abuse of children, expert testimony is necessary to provide a foundation for the jury to assess the evidence.

This court has previously discussed to what extent an expert may testify concerning the traits of abused children:

[O]ne witness may not testify as to another witnesses' credibility or truth-telling capacity because such testimony would invade the province of the jury to determine the credibility of a witness.... Yet, ... '[a]n expert may testify as to certain characteristics of abused children and may even compare those characteristics to actions of a particular victim.'

Floody, 481 N.W.2d at 249 (quoting McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989) (citing United States v. St. Pierre, 812 F.2d 417, 419-20 (8th Cir.1987))).

Koepsell objected to McGuire's testimony as to whether it was "uncommon" for children who had been sexually abused to take a "long pause" before answering a question. Koepsell claims McGuire's comparison of L.N.'s traits with the general characteristics displayed by abused children impermissibly bolstered the credibility of the child's testimony. Similarly, Koepsell's objections to the testimony of Pilkington pertained to foundation questions concerning the general memory and disclosure patterns of abused children and questions as to whether L.N. displayed the characteristics of a sexually abused child. The expert testimony comparing specific and general characteristics of sexually abused children goes no further than testimony we have determined was properly admitted in previous cases. Svihl, 490 N.W.2d at 272; State v. Buller, 484 N.W.2d 883, 889 (S.D.1992), cert. denied, --- U.S. ----, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992); Floody, 481 N.W.2d at 249; State v. Spaans, 455 N.W.2d 596, 599 (S.D.1990). In fact, this is exactly the kind of comparison testimony that is helpful to a jury with no knowledge of child sex abuse and its indications.

Further, in opening statement Koepsell told the jury testimony would show inconsistencies, improper interviewing techniques and evidence the children were lead and interrogated for weeks until they gave increasingly incriminating information each time. Where the defense claimed the children had been programmed, the "defense tactic, therefore, made it advisable to apprise the jury of the traits and characteristics that can be evidence by a minor who had been sexually abused." Svihl, 490 N.W.2d at 273.

The trial court did not abuse its discretion in admitting the testimony.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN LIMITING KOEPSELL'S CROSS-EXAMINATION OF V.N.

Koepsell's right to confront witnesses against her is guaranteed by the Sixth Amendment to the United States Constitution and by article VI, Sec. 7 of the South Dakota Constitution. "[E]xposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986); State v. Bogenreif, 465 N.W.2d 777, 782 (S.D.1991). Nonetheless, the trial court retains broad discretion concerning the limitation of cross-examination and it will be reversed only when there is a clear abuse of that discretion and a showing of prejudice to the defendant. United States v. Crump, 934 F.2d 947, 951 (8th Cir.1991); Bogenreif, 465 N.W.2d at 783; State v. Honomichl, 410 N.W.2d 544, 548 (S.D.1987). The burden is on the defendant to show a reasonable jury probably would have a significantly different impression if otherwise appropriate cross-examination had been permitted. Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1436, 89 L.Ed.2d at 684; Bogenreif, 465 N.W.2d at 782.

Koepsell claims the court abused its discretion by limiting cross-examination of V.N. in three areas: 1) harassing phone calls made to Koepsell; 2) whether V.N. chose to believe her children instead of her mother; and 3) whether V.N. was considering suing the Koepsells for the sexual abuse of L.N. and Z.N.

Koepsell testified that she had received harassing late night phone calls which the sheriff traced to the home of V.N. and her husband. On cross-examination, V.N. stated she did not remember any late night...