State v. McDonald, 17879

• Decision Date: 12 January 1993
• Docket Number: No. 17879,17879
• Citation: 500 N.W.2d 243
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lisa McDONALD, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 243

500 N.W.2d 243

STATE of South Dakota, Plaintiff and Appellee, v. Lisa McDONALD, Defendant and Appellant.

No. 17879.

Supreme Court of South Dakota.

Considered on Briefs Jan. 12, 1993.

Decided May 19, 1993.

Mark Barnett, Atty. Gen., John M. Strohman, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

David R. Gienapp, Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

WUEST, Justice.

A jury convicted Lisa McDonald (McDonald) of one count of unauthorized possession of a controlled substance. She appeals from the judgment. We affirm.

FACTS

McDonald was arrested at her place of employment on drug charges unrelated to this appeal. Pursuant to the arrest, her purse was searched at the Mitchell Police Station. The jail matron and the arresting officers found a folded paper packet in McDonald's billfold. Subsequent testing showed the folded packet contained cocaine.

McDonald was charged with possession of cocaine in violation of SDCL 22-42-5 and 34-20B-16(1). At trial, the State introduced evidence of three prior acts of McDonald involving cocaine. First, a Mitchell police detective testified that on a different occasion, while conducting a legal search of McDonald's purse, he discovered a mirror with a white powdery substance on it and a hollowed-out BIC pen. The state chemist testified the powdery substance was cocaine. Second, a former co-worker testified that McDonald had given her cocaine while they were working together in October of 1989. A third witness testified she had seen McDonald snorting cocaine while she was at McDonald's residence. McDonald was not convicted of any crimes arising from the prior acts.

At her trial, McDonald testified the folded paper packet containing the cocaine had been given to her by Mike, a young man she met at a bar in Sioux Falls five days before her arrest. She claimed Mike bought her a drink and handed her a folded paper she thought contained his phone number which she tucked into her billfold without looking.

She appeals from her conviction raising four issues which we address in order, noting additional facts where necessary.

ANALYSIS

I. THE TRIAL COURT DID NOT ERR IN ADMITTING TESTIMONY OF OTHER BAD ACTS EVIDENCE.

Prior to trial, the State filed a motion seeking to have evidence of other bad acts of McDonald's admitted into evidence pursuant to SDCL 19-12-5. ¹ The trial court admitted some of the evidence. On appeal, McDonald claims the trial court erred in admitting the evidence as it was too unreliable to meet the standard of admissibility, the prior acts were too remote in time to have sufficient probative value, and its probative value was outweighed by its prejudicial effect.

The trial court's decision to admit other act evidence will not be overruled absent an abuse of discretion. State v. Werner, 482 N.W.2d 286, 288 (S.D.1992). The trial court must follow a two-step approach when ruling on the admissibility of other acts testimony:

(1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case, and

(2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect.

Werner, 482 N.W.2d at 288. Additionally, the trial court must identify the exception under which the bad acts evidence is sought to be admitted. Werner, 482 N.W.2d at 289.

McDonald claims the trial court erred in admitting the prior bad acts evidence as Rose requires a finding the act is supported by substantial evidence. State v. Rose, 324 N.W.2d 894, 896 (S.D.1982). Rose merely points out "[t]he trial court was careful to insure that the other crimes evidence was substantial." Id. It does not creates a new standard beyond SDCL 19-12-3. ² The strength of the evidence offered is already part of the relevancy determination.

McDonald asserts Sieler requires a prior bad act be established by clear and convincing evidence. State v. Sieler, 397 N.W.2d 89, 94 (S.D.1986). Again, the language in Sieler only notes the trial court found the evidence was "clear and convincing." It does not create a new standard. In fact, in Sieler we rejected adopting an additional requirement for admission of bad acts evidence under SDCL 19-12-5. Sieler, 397 N.W.2d at 93. The reliability of the evidence sought to be admitted is already an inherent part of the tests the court must perform. State v. Titus, 426 N.W.2d 578, 580 (S.D.1988). We decline to adopt an additional standard for a trial court to balance before deciding to admit or exclude prior bad acts.

McDonald next claims the prior acts were so remote in time that their admission was prejudicial. All three acts had occurred within the previous thirteen months. We have stated, "[w]hether prior acts are too remote must realistically depend on their nature." State v. Wedemann, 339 N.W.2d 112, 115 (S.D.1983). We look at the totality of the circumstances to determine whether an act is too remote in time in determining its probative value. Titus, 426 N.W.2d at 580 (similar act eight years earlier was properly admitted). The lapse of one year since three prior acts involving cocaine was not so long a time as to outweigh the probative value and render admission of the evidence unfairly prejudicial to McDonald.

The trial court specified the other acts evidence was admitted to show intent, knowledge, and absence of mistake or accident. The element of knowledge is an essential part of SDCL 22-42-5. ³ Where McDonald claimed she did not know the folded paper packet contained cocaine, knowledge and absence of mistake or accident were clearly relevant. We have held that an element of a crime may be established through the use of other acts testimony:

[W]here it is made clear at the outset of the trial that the defendant's principal defense is lack of knowledge or intent, and thus the issue is unarguably in dispute, the government may ... introduce the [other acts] evidence[.]

Werner, 482 N.W.2d at 290 (quoting United States v. Estabrook, 774 F.2d 284, 289 (8th Cir.1985)). The Estabrook court reasoned, "The admission of other act evidence to prove knowledge is premised on the hypothesis that it is unlikely that repetitive involvement in criminal conduct will leave a defendant oblivious to the character of the acts in question." Id. at 288 (citing 2 J. Weinstein & M. Berger, Weinstein's Evidence Sec. 404(13), at 404-72 (1982)). The other acts evidence was admissible to establish knowledge.

The trial court did the required balancing on the record: "the other acts evidence [is] relevant as its probative value substantially outweighs its prejudicial effect." The court identified the limited exceptions under which the evidence was admitted as intent, knowledge, and absence of mistake or accident. During testimony, the trial court instructed the jury four times that bad acts evidence was admitted for limited purposes. Additionally, a separate jury instruction again cautioned the jury the other acts evidence could only be considered for the limited purposes stated. State v. Basker, 468 N.W.2d 413, 416 (S.D.1991); State v. Chapin, 460 N.W.2d 420, 422 (S.D.1990).

"While the evidence of other crimes was undoubtedly prejudicial to appellant, the operative words of SDCL 19-12-3 are 'substantially outweighed' and 'unfair.' " Rose, 324 N.W.2d at 896. Here, the trial court determined the acts had probative value which was not substantially outweighed by the danger of unfair prejudice. The court performed the balance carefully as evidenced by the fact that it did reject some evidence sought to be introduced as being too remote. Additionally, the court repeatedly directed the jury as to the limited purposes for which it could consider the testimony.

The trial court did not abuse its discretion in admitting the other acts evidence.

II. THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE'S MOTION IN LIMINE CONCERNING THIRD PARTY PERPETRATOR EVIDENCE.

a. McDonald was not prejudiced during her opening statement

by the court's order regarding third party

perpetrator evidence.

The State filed a motion in limine requesting the court prohibit McDonald from presenting any third party perpetrator evidence "until and unless the defendant makes a showing that such evidence meets the standard set forth in Luna." State v. Luna, 378 N.W.2d 229 (S.D.1985); See also State v. Braddock, 452 N.W.2d 785 (S.D.1990); State v. Jenner, 451 N.W.2d 710 (S.D.1990). After argument, the court issued an order prohibiting McDonald from introducing any third party perpetrator evidence unless a showing was first made to the court. She was not prevented from making a general denial. McDonald did not make any showing to the court regarding admission of third party perpetrator evidence.

In Luna, this court adopted the third party perpetrator rule. We said, "to be admissible, the evidence must show some change of circumstances, of facts or train of facts to point out the possible guilt of a third party other than the defendant." Luna, 378 N.W.2d at 232. The balancing test requires the court to balance the importance of the evidence against the State's interest in excluding unreliable evidence. Luna, 378 N.W.2d at 234. The balancing is necessary to protect both the right of the defendant to defend against the accusations and the State's interest in reliable and efficient trials. Id. at 233. In Braddock, we reiterated the third party perpetrator rule was adopted to avoid consideration of matters collateral to the crime and avoid the use of bare suspicion. Braddock, 452 N.W.2d at 790.

During opening statement, defense counsel began McDonald's story of how the packet with cocaine had been given to McDonald by Mike. State objected. A meeting was held in chambers at which time the judge ruled McDonald could not introduce the third party perpetrator evidence without sufficient notice to the court to permit the balancing required under Luna. Upon return to the courtroom, defense counsel related how McDonald...