State v. Logue

Decision Date31 July 1985
Docket NumberNo. 14729,14729
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Steven LOGUE, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Joseph Neiles, of Zimmer, Richter, Duncan & Neiles, Parker, for defendant and appellant.

WUEST, Acting Justice.

This is an appeal from a judgment and conviction of two counts of rape and one count of sexual contact with a child. We reverse and remand for a new trial.

On May 2, 1984, a Minnehaha County Grand Jury indicted Steven Logue (appellant) on two counts of first-degree rape, in violation of SDCL 22-22-1(4), and one count of sexual contact with a child under fifteen, in violation of SDCL 22-22-7. Appellant was arraigned and entered a plea of not guilty, whereupon motion hearings were held in preparation for a jury trial in Minnehaha County. The trial court granted appellant's motion for an examination and hearing to determine the competency of the alleged victim as a witness, who was then four years old. The court, however, did not allow appellant to have the child examined by an expert of appellant's choice.

At the competency hearing the child was questioned by the prosecutor and by appellant's attorney. The State called Trudy Schroeder, a social worker with the South Dakota Department of Social Services, concerning contacts she had with the child, which included two interviews and a trip to a restaurant. The trial court ruled that, inasmuch as the young boy knew the difference between lying and telling the truth, he was competent to testify and his credibility was a matter to be determined by the jury.

The trial court denied a motion to make the indictment more definite and certain, or dismiss. At trial, the State's first witness was the alleged victim's mother. She testified that, while a neighbor lady was her usual babysitter, on April 5, 1984, she had a woman named Peggy Anderson watch her children. Ms. Anderson had babysat for her once before. The mother stated she told Peggy Anderson that she did not want anyone else in the house while she was away. Further, she testified that she left for work at 5:45 a.m. and returned about 3:15 p.m. When she came home that day, she sat down to talk with Ms. Anderson and asked her how the children were doing. She asked where her son was and Ms. Anderson stated that he was lying on the bed playing. The mother testified that she thought something might be wrong because her son was too "hyper" to play on the bed. He had been diagnosed as being hyperactive and took medication for that malady.

The mother further testified that both she and Ms. Anderson moved toward the rear of her mobile home, where the bedrooms are located. As they did, appellant Steven Logue emerged from the mother's bedroom. At that point, Ms. Anderson commented that the child must be hiding, and appellant stated that the child was in the bathroom. Ms. Anderson went to the bathroom and returned stating that he was there. The mother went to check on him and found him standing in the corner by the closet with no pants on. Apparently, this bathroom was located in the same bedroom that appellant emerged from. She stated that her son normally did not take his pants entirely off to go to the bathroom, and that they did not appear wet when he put them back on.

Ms. Anderson testified that appellant did not arrive at the trailer until about 3:30 that afternoon and the mother had told her only that the mother's sister-in-law and bill collectors were not allowed in the house. She denied the fact that the mother said anything about appellant's presence in the home. She also claimed that appellant and the young boy were never in the bedroom at the same time. Ms. Anderson stated that she was talking on the telephone when the mother came home and appellant was in the front bathroom, while the child was in the rear bedroom.

The mother gave appellant and Ms. Anderson a ride to McKennan Hospital. Upon returning home, she checked her jewelry boxes, for she apparently suspected Ms. Anderson or appellant in the theft of a necklace that was missing after the last time Ms. Anderson watched her children. She discovered a ring missing.

The mother testified that on the following day the alleged victim complained of constipation and kept crying that his bottom hurt. She stated that she had him soak in the bathtub, yet he still complained of pain. She examined him and could find nothing wrong. The mother said that later on, when the child was playing with his younger brother, she overheard him ask: "Are you going to stick that in my butt?" This statement was objected to as hearsay but the State argued that it should be allowed as an excited utterance exception to the rule against hearsay and the court agreed, overruling the objection.

The mother further testified that she asked him whether anyone had stuck anything in his posterior and where he had heard such a statement. She said that he answered by asking if it was "naughty," and claimed that his younger brother "put toilet paper in [his] butt." He then said that it could have been somebody else. At this point, appellant's counsel objected again, and requested a continuing objection to the testimony as hearsay. The mother then claimed that the child said that Peggy's boyfriend did it.

On the following day, the child had a bowel movement and the mother testified that he had a little bit of stool and "a bunch of white stuff come out in the toilet." She then called her doctor, who advised her to take the young boy to the hospital to be examined. He was taken to McKennan Hospital and examined in the emergency room by Dr. Jeff Wheeler. Dr. Wheeler testified that in his examination of the alleged victim he found no evidence of external trauma. He did not find any foreign body or retrieve any bloody stool in his finger exam. He testified the stool he retrieved for blood and found none. Further, he did an X-ray of the rectum area looking for a foreign body and found none. Dr. Wheeler testified that any evidence which may have been there could have disappeared in the four intervening days, and, therefore, he could not rule out molestation.

Ms. Schroeder was then called by the State. As stated supra, she is a social worker for the South Dakota Department of Social Services and has a Bachelor of Science Degree in Community Services, which is a social work degree with emphasis on psychology and public administration. She testified that she had been in the field for approximately ten years, seven of which were in direct social work and three in administration. Ms. Schroeder stated that she has had continuing education in the areas of interviewing techniques with children, sexual abuse, and working with offenders and victims. At the time of the trial, she was working in the area of child protection, which involves investigating child abuse and neglect. She testified that in the seven months prior to the trial she had interviewed forty-seven children. Further, over appellant's objection, she testified that in about one-third of the cases of sexual abuse, the claims were, in her opinion, unsubstantiated. She then testified about her interviewing techniques and their purposes.

Ms. Schroeder testified about her contacts with the alleged victim. She stated that her first interview with the victim was for general information and the second interview was used to get more details and elicit information concerning his knowledge of sexual matters, in an attempt to determine the source of that knowledge. She was then asked what she concluded with regard to the source of the victim's knowledge of sexual matters. Appellant objected to this as hearsay. The jury was excused, and the State argued that Ms. Schroeder should be allowed to give her opinion as to whether the boy gained the information from observation, his parents, or from actual experience. Appellant argued that this was essentially asking for expert testimony on the credibility of a witness. The court overruled the objection but allowed a continuing objection to testimony by Ms. Schroeder concerning conclusions about credibility and hearsay statements.

Thereafter, however, Ms. Schroeder was allowed to testify concerning what the alleged victim told her about the incident in question. She was then asked:

Q. Based on his answers to those questions, what were your conclusions as to where he had acquired his sexual knowledge?

A. That particular knowledge, I believe he gained, through the experience with Steve.

Despite the continuing objection granted by the court, appellant again objected to such testimony and moved that it be stricken. This request was denied by the trial court.

The child also testified, and, although he was not placed under oath, no objection was raised by appellant's trial counsel. At the direction of the prosecutor, the child indicated certain things with two dolls. After going through a discussion and demonstration with the dolls, the prosecutor commented "I guess I would like the record to reflect that at this time the dolls are in the anal sex position." This was objected to and overruled.

The prosecutor then asked the young boy what the man did with his "peter" and he replied: "stuck it in there," indicating the posterior of the smaller doll. He also stated that the man inserted toilet paper in the little boy's posterior. Also, he testified that the man had the little boy insert the little boy's "in there." As to this, the prosecutor indicated the sexual contact charge related to the victim's being forced to perform penile-anal penetration on appellant.

The only other witness to testify was a man named Tim Parker, who testified that he was with appellant during the day of the incident in question, until about 3:00 or 3:15 p.m., which verified the testimony appellant gave as...

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    ...or of confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness." State v. Logue, 372 N.W.2d 151, 157 (1985) (citation omitted). Thus, some courts have held that permitting an expert to give her opinion that the victim is telling the truth, p......
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