State v. Ondricek

• Decision Date: 11 January 1995
• Docket Number: No. 18788,18788
• Citation: 535 N.W.2d 872
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Myron J. ONDRICEK, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 872

535 N.W.2d 872

STATE of South Dakota, Plaintiff and Appellee, v. Myron J. ONDRICEK, Defendant and Appellant.

No. 18788.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1995.

Reassigned May 26, 1995.

Decided Aug. 2, 1995.

Mark Barnett, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Ron J. Volesky, Huron, for defendant and appellant.

MILLER, Chief Justice (on reassignment).

Myron J. Ondricek was charged with three counts of sexual contact and one count of rape. He was convicted on one count of sexual contact with a minor--his niece. The trial court allowed the State, in its case-in-chief, to present evidence of prior bad acts of sexual contact and rape with other nieces, which acts occurred approximately twenty years earlier. We affirm.

FACTS

The prosecutor filed a motion to introduce prior bad acts testimony from D.P. and L.P., two of Ondricek's nieces. D.P. testified that when she was six (around 1972) Ondricek had asked her to go skinny dipping but that she felt uncomfortable after she stripped to her panties. At family gatherings, she recalled that Ondricek massaged her around her sides and below her waist, making her very uncomfortable. When D.P. was twelve (around 1978) she stayed overnight with Ondricek and his wife in a tent. He fondled her breasts until she moved over to the other side of the tent.

L.P. testified that Ondricek took her "skinny dipping" when she was four. He made her touch his penis and attempted to sexually penetrate her. He rubbed her vagina on another occasion when she fell off a sled and hurt her groin area. She testified that he raped her in 1974, when she was eight, while taking her fishing and later, in 1976, he rubbed her breasts and placed her hand on his penis.

Ondricek moved to suppress this testimony. After a pretrial hearing, the trial court held the testimony admissible. The court concluded that the prior bad acts, if believed by the jury, would establish "a plan or common scheme on the part of defendant to develop situations which would allow him to have sexual contact with his nieces and to prove the intent required for the offense of sexual contact with a minor." The court also concluded that the probative value was not substantially outweighed by its prejudicial effect. The trial court instructed the jury that the other acts evidence could only be used as proof of intent or common scheme.

The jury returned verdicts of not guilty on all counts except Count 2, sexual contact with E.P., a child under sixteen. Ondricek was sentenced to ten years in the South Dakota Penitentiary and ordered to pay the cost of counselling for the victim.

DECISION

Was the prior bad acts evidence admissible to prove intent or common scheme?

The admission of other acts testimony is governed by SDCL 19-12-5, which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Under SDCL 19-12-5, the trial court must follow a two-step analysis when ruling on the admissibility of other acts evidence:

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

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

State v. Steele, 510 N.W.2d 661, 667 (S.D.1994). Here, the trial court determined that the evidence was admissible as proof of a common scheme or plan and as proof of intent. We review the trial court's decision to admit such evidence under the abuse of discretion standard. Id.

Prior bad act evidence is not admissible to show that, since a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged. SDCL 19-12-5; Steele, 510 N.W.2d at 668 n. 8; 2 J. Weinstein & M. Berger, Weinstein's Evidence, p 404 at 404-26 (1994).

In this case, the trial court followed all proper procedural steps and then admitted evidence of prior sexual contact with minors as proof of a common scheme or plan and as proof of intent. The trial court properly admitted the evidence under both the intent and plan exceptions.

1. Intent.

Ondricek argues that a defendant's complete denial of any wrongdoing negates the prosecution's need to offer evidence of intent. Ondricek would have the trial court defer such evidence until a defendant places intent in dispute or unless intent is clearly in dispute from the outset. Under this rationale, intent is only disputed when, for example, a defendant admits the physical contact with a minor but asserts the contact was inadvertent or by mistake.

Imposing this stringent "in dispute" standard would require overruling settled South Dakota case law. In State v. Champagne, 422 N.W.2d 840 (S.D.1988), this Court held "where specific intent is an element of an offense, proof of similar acts may be admitted to carry that burden even if the defense to the charge is a complete denial." Id. at 843 (citing State v. Means, 363 N.W.2d 565, 568 (S.D.1985)). In Champagne, we expressly considered and rejected the viewpoint put forward by Ondricek. Id. We reasoned the question of intent is always in issue in the case of sexual contact with a child, because an element of the offense charged is the specific intent to arouse or produce sexual gratification. Id. at 843-44; SDCL 22-22-7; SDCL 22-22-7.1. Consequently, "[e]xtrinsic evidence of intent is admissible in order for the state to meet its burden under a specific intent crime." Champagne, 422 N.W.2d at 844.

In a line of subsequent cases, we have reaffirmed this rule. In State v. Klein, 444 N.W.2d 16, 19 (S.D.1989), we wrote: "[W]here specific intent is an element of an offense, proof of similar acts may be admitted so that the State may carry its burden even if the defense to the charge is a complete denial." Similarly, in State v. Basker, 468 N.W.2d 413, 416 (S.D.1991), this Court opined: "Because the State must prove the touching was done with the intent to arouse or produce sexual gratification, the offense of sexual contact with a minor is a specific intent crime, and evidence of such intent may be proved by other acts evidence." Finally, in State v. Christopherson, 482 N.W.2d 298, 302 (S.D.1992), we held that bad acts evidence was admissible to prove intent where the defendant was accused of sexual contact with a minor, a specific intent crime.

We are aware of case law from the Second, Eighth, and Ninth Circuit Courts of Appeals that conflicts with our holdings. These cases stand for the proposition that if a defendant denies the act occurred, then intent is not in dispute and other acts evidence may not be admitted under the intent exception. United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir.1993); United States v. Figueroa, 618 F.2d 934, 941-42 (2nd Cir.1980); United States v. Powell, 587 F.2d 443, 448-49 (9th Cir.1978). However, as we noted when deciding this issue previously, a majority of other federal circuits have adopted the contrary and, in our opinion, better view. United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir.1994) (ruling that where the crime charged is one requiring specific intent, the prosecutor may use other acts evidence to prove the defendant acted with the specific intent, notwithstanding any defense the defendant might raise), cert. denied, 513 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995); United States v. Mounts, 35 F.3d 1208, 1215 (7th Cir.1994) (noting that the Seventh Circuit permits the government to present other acts evidence in its case-in-chief if the crime requires proof of specific intent), cert. denied, --- U.S. ----, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995); United States v. Suntar Roofing, Inc., 897 F.2d 469, 479-80 (10th Cir.1990) (holding that similar acts evidence is admissible to prove intent where intent to restrain competition was an element of the crime charged); United States v. Carter, 760 F.2d 1568, 1579 (11th Cir.1985) (ruling that extrinsic evidence could be used to prove intent, despite assertion of an alibi defense, because intent was an essential element of the crime charged).

Accepting Ondricek's rationale would improperly allow a defendant to foreclose the State from offering relevant evidence on an essential element of the crime. United States v. Chaimson, 760 F.2d 798, 805-06 (7th Cir.1985). We have previously rejected this outcome and, in light of the force of thoughtful precedent and persuasive authority, continue to do so.

2. Common Plan or Scheme.

Ondricek argues that his alleged sexual contact with his other nieces falls outside of the plan exception. We disagree.

" '[C]ommon plan, design or scheme' refers to a larger continuing plan, scheme or conspiracy of which the present crime charged at trial is only a part and which is often relevant to show motive, intent, knowledge or identity." Champagne, 422 N.W.2d at 842. Furthermore, where the defendant denies doing the charged act, evidence of a common plan or scheme to achieve the act is directly relevant to refute this general denial. United States v. Weidman, 572 F.2d 1199, 1202 (7th Cir.1978), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). By showing that the earlier schemes bore a singular strong resemblance to the pattern of the offense charged, the government establishes a preexisting plan or design which, in turn, tends to show the doing of the act designed. Id. at 1202-03 (citing United States v. Jones, 438 F.2d 461, 466 (7th Cir.1971); 2 Wigmore, Evidence § 304 at 202 (1979)).

In Christopherson, 482 N.W.2d 298, we explored the dimensions of the plan exception in a sexual molestation case. The State accused Christopherson of five counts of sexual contact with a...