State v. Olesen, 16426

• Court: South Dakota Supreme Court
• Writing for the Court: WUEST; MORGAN; HENDERSON; MILLER; SABERS; HENDERSON; MILLER; SABERS
• Citation: State v. Olesen, 443 N.W.2d 8 (S.D. 1989)
• Decision Date: 24 March 1989
• Docket Number: No. 16426,16426
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jerry Lee OLESEN, Defendant and Appellant. . Considered on Briefs

Page 8

443 N.W.2d 8

STATE of South Dakota, Plaintiff and Appellee, v. Jerry Lee OLESEN, Defendant and Appellant.

No. 16426.

Supreme Court of South Dakota.

Considered on Briefs March 24, 1989.

Decided July 19, 1989.

Roger A. Tellinghuisen, Atty. Gen., Pierre, Ann C. Meyer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

John A. Shaeffer of Shaeffer Law Office, Flandreau, for defendant and appellant.

WUEST, Chief Justice.

Jerry Lee Olesen appeals from judgments of conviction for second degree rape, sexual contact with a child under the age of 16, and third degree rape. We affirm.

FACTS

In October and December of 1979, Olesen had sexual intercourse with his 14 year old daughter Lisa. Then in May of 1985, Lisa saw Olesen molesting her younger sisters, Liza and Alta, by rubbing their vaginas with his fingers. Liza was five years old and Alta was three years old at the time.

Olesen was indicted by a Haakon County grand jury on two counts of second degree rape, two counts of sexual contact with a child under the age of 16, one count of third degree rape, and one count of tampering with a witness. During the trial a doctor testified as to the statements given to him by five year old Liza during a medical examination. This examination occurred about eight months after Olesen allegedly molested Liza. Defense counsel objected to the doctor's testimony since it was hearsay, but the objections were overruled by the trial court. The doctor also testified that during the examination he found an injury to Liza's hymenal ring and a larger than normal vaginal opening. He concluded that sexual abuse had occurred.

The jury found Olesen guilty on all counts except the one count of tampering with a witness. The trial court sentenced Olesen to five consecutive three year terms in the penitentiary.

ISSUE

Did the trial court abuse its discretion by allowing the doctor to testify about the statements given to him by five year old Liza during a medical examination?

DECISION

SDCL 19-16-8 (Rule 803(4)) contains an exception to the hearsay rule for statements given to aid medical diagnosis and treatment:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by Sec. 19-16-4 in so far as reasonably pertinent to diagnosis or treatment, even though the declarant is available as a witness.

Olesen argues that there is no possible diagnosis or treatment that could have been performed on the child eight months after the incident of touching her vagina. He contends that the examination was done for the purpose of obtaining evidence for the state, rather than for any diagnosis or treatment. Consequently, he concludes that the statements made by Liza should not have been admitted under SDCL 19-16-8.

When reviewing the admission of evidence, this court will not disturb the decision of the trial court unless there is a clear showing of an abuse of discretion. State v. Bawdon, 386 N.W.2d 484 (S.D.1986). A doctor's testimony concerning a child's statements during a medical examination is admissible under SDCL 19-16-8 when the statements were primarily concerned with what happened to the child, rather than who committed the assault. Id.; State v. Garza, 337 N.W.2d 823 (S.D.1983). See also United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

Here, the doctor testified as follows:

I asked her [Liza] if she had ever been hurt around her bottom, and she replied that her daddy had hurt her. I then asked her where and she pointed to the vaginal area. I then asked if someone had, if her father had put his fingers in her and she nodded affirmatively. I then asked if it hurt and she again indicated affirmatively that it had hurt. I then asked her if she knew what a male organ was, what a penis was, and she indicated she knew the difference between female and male and nodded that she knew what the male organ was. I think I referred to it as a male thing. She indicated she knew where that was located. I asked her if she had, if he had placed that in her and she indicated affirmatively again. I went back through the questions a number of times to see that she didn't change her indications. She did not elaborate in detail, it was just, she did say that she had been hurt and when asked about the area, indicated that her vaginal area and nodded as I asked the questions.

A careful analysis of this testimony reveals that the doctor's questions were primarily directed toward the existence and location of any pain suffered by the child, and not with the identity of the alleged molester. Likewise, the child's answers emphasized what happened to her and were primarily concerned with "the inception or general character of the cause or external source" of the pain, which is clearly admissible under SDCL 19-16-8 and our prior case law. Therefore, we conclude that the trial court did not abuse its discretion by allowing the doctor's testimony.

Olesen's argument that diagnosis and treatment of Liza could not have been performed after a lapse of eight months is totally without merit, since the doctor found physical injury to Liza even after the eight month lapse. Furthermore, this court has recently upheld testimony of a doctor pursuant to SDCL 19-16-8 despite a lapse of two years from the date of the alleged child abuse to the date of the medical examination. Matter of S.W., 428 N.W.2d 521 (S.D.1988).

Affirmed.

MORGAN, J., concurs.

HENDERSON, J., concurs specially.

MILLER, J., concurs in result.

SABERS, J., dissents.

HENDERSON, Justice (specially concurring).

An appreciation of distinctions, in the admission of identifying statements in intrafamily sexual abuse prosecutions, can only result from a deep and thorough study of authorities and cases on this subject. Intrafamily dynamics create a special consideration of the rules of evidence and how to apply them. For openers, it is suggested that a greater understanding of the difficulties in decisions to admit evidence, or not admit evidence, will result by reading United States v. Shaw, 824 F.2d 601 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988), and, U.S. v. Renville, 779 F.2d 430 (8th Cir.1985). See also, Graham, The Confrontation Clause, The Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 529 n. 22 (1988); Note, United States v. Renville: Admission of an Identification Made to a Physician under Federal Rule of Evidence 803(4), 31 S.D.L.Rev. 726 (1986); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Col.L.Rev. 1745, 1749-53 (1983).

Before launching into any further legal discussion, I wish to point out that after a grand jury proceeding in this case, and at the referral request of a Haakon County social worker, and also pursuant to an oral stipulation between the state's attorney and defense counsel, Dr. Willis Sutliff, a pediatrician in Rapid City, South Dakota, examined two very young girls involved in this case.

To further appreciate the justification of the trial judge's evidentiary ruling, South Dakota's statutory scheme on child sexual abuse should be mentioned. South Dakota has an overall policy to protect both male and female children from child sexual abuse. Upon receiving a report of child abuse, several public offices are commanded, by state law, to notify the Department of Social Services of the alleged child abuse. These public offices include the state's attorney, county sheriff and police department. Then, the Department of Social Services must notify public officials of having received the report. SDCL 26-10-12. Thereupon, an investigation must be conducted by the Department of Social Services with other law enforcement officials cooperating. SDCL 26-10-12.1; SDCL 26-10-12.2.

Our consideration should now turn to the duties of various officials and public servants who owe vital responsibilities towards suspected child abuse victims in this state. The statutory scheme unfolds with greater particularity in SDCL 26-10-10. A physician is absolutely encharged with the responsibility of deciding if a child has received abusive or intentional neglect or has been starved or had physical injury inflicted. Failing this, a physician (as well as other public officials who have become aware of the abuse) may be held criminally responsible for a Class I misdemeanor and placed in confinement. The intent is clear: Keep the assailant away from the abused child.

Next, let us examine SDCL 19-16-8 which is identical to Fed.R.Evid. 803(4). Notice the word "or" before "statements of hearsay evidence are admissible which have been made for the purposes of medical diagnosis or treatment and describing medical history." As the statute plainly expresses, this includes "past or present symptoms, pain or sensation, or the inception" that are "reasonably pertinent to diagnosis or treatment ...".

In Renville, the Eighth Circuit held, inter alia, that "sexual abuse of children at home presents a totally different situation from that normally...