State v. Peterson, 19511

• Decision Date: 23 October 1996
• Docket Number: No. 19511,19511
• Citation: 1996 SD 140,557 N.W.2d 389
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ralph Dean PETERSON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 389

557 N.W.2d 389

1996 SD 140

STATE of South Dakota, Plaintiff and Appellee, v. Ralph Dean PETERSON, Defendant and Appellant.

No. 19511.

Supreme Court of South Dakota.

Considered on Briefs Oct. 23, 1996.

Decided Dec. 4, 1996.

Mark Barnett, Attorney General, Wade A. Hubbard, Deputy Attorney General, Pierre, for plaintiff and appellee.

Michael W. Hanson, Sioux Falls, for defendant and appellant.

SABERS, Justice

¶1 Peterson was convicted of rape and attempted rape of his two minor daughters. He claims that certain out-of-court statements made by one daughter were improperly admitted. He was sentenced to two terms of life imprisonment to be served concurrently with sentences of 100 years and 25 years. He also argues his sentence is excessive and constitutes cruel and unusual punishment. We affirm.

FACTS

¶2 Ralph Peterson (Peterson) and his former wife, Cheryl Ann Peterson (Cheryl), were indicted in 1993 by a Minnehaha County grand jury on various charges of child sexual abuse. Four of the counts were directed at Peterson, all involving attempted rape and rape of their minor daughters, A.R.P., then six years of age, and A.L.P., then age three. In Peterson's first trial, the jury found him guilty on all four counts and Circuit Court Judge Srstka sentenced him to life imprisonment with 165 years to be served concurrently and another 320 years to be served consecutively.

¶3 Peterson appealed. This court agreed that Judge Srstka should have recused himself and the case was remanded for a new trial. See State v. Peterson, 531 N.W.2d 581 (S.D.1995). In August of 1995, a second trial was held, presided over by Circuit Court Judge Severson.

¶4 Prior to the trial, State moved to allow hearsay statements made by the children to a social worker and a police officer. ¹ At the motion hearing, the trial court decided A.R.P., then eight years of age, was competent to testify. The court ruled her hearsay statements were sufficiently reliable and therefore admissible as corroboration to her testimony, but only after she testified.

¶5 At trial, Coreen Carroll (Carroll), a social worker with the Department of Social Services who interviewed A.R.P. on two occasions, was allowed to testify to statements made by her concerning sexual abuse by Peterson. Carroll testified that A.R.P. told her that her father: Fondled and licked her chest area; penetrated her vagina with his finger, which "really hurt"; performed oral sex on her; touched and put Vaseline on her anal area; and that once he tried to penetrate her vagina with his penis, but she was "too small." She also described an incident to Carroll where Cheryl took A.R.P.'s hand and placed it on Peterson's penis, and then moved it in an up and down motion. Another time, A.R.P. told her, she lay face down on the couch, while her father kneeled behind her with his penis on her back until "water" covered her back.

¶6 On the second day of trial, the jury found Peterson guilty of two counts of first degree rape of A.R.P., one count of attempted first degree rape of A.R.P., and one count of first degree rape of A.L.P. Peterson appeals.

¶7 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING THE OUT-OF-COURT STATEMENTS.

¶8 Peterson claims A.R.P.'s out-of-court statements were unreliable and inconsistent and should not have been admitted into evidence. Our standard of review of evidentiary rulings is well established:

For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred. Once again, an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.

State v. Buller, 484 N.W.2d 883, 885(SD), cert. denied, 506 U.S. 887, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992) (citations omitted).

¶9 Out-of-court statements made by a minor victim of sexual abuse are admissible under SDCL 19-16-38, which provides, in relevant part:

A statement made by a child under the age of ten ... describing any act of sexual contact or rape performed with or on the child by another ... not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant ... in the courts of this state if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

The factors to be considered in deciding whether these statements are sufficiently reliable under SDCL 19-6-38 are:

The age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, the consistency of repetition and the reliability of the assertions, and the reliability of the child witness.

Buller, 484 N.W.2d at 886; State v. Floody, 481 N.W.2d 242, 251 (S.D.1992); State v. Thompson, 379 N.W.2d 295, 297 (S.D.1985). Peterson does not claim the trial court conducted the hearing in an improper manner, nor he does assert the court overlooked any of the factors in determining reliability.

¶10 "The determination of reliability must be made prior to the admission of the hearsay." Buller, 484 N.W.2d at 886 (citation omitted). The evidence which was available to the court at the motion hearing supports the court's finding A.R.P.'s out-of-court statements were sufficiently reliable. Carroll testified to what A.R.P. told her in their two interviews. A.R.P. was questioned by the State and defense counsel, as well as the judge. It was clear she knew the difference between the truth and lies, and she consistently reported all she had been instructed to tell was the truth. The trial court found she passed the threshold test of State v. Phipps, 318 N.W.2d 128, 130 (S.D.1982) ("In order to be a competent witness, a child must have 'sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility ....' ") (citation omitted).

¶11 At the motion hearing and in this appeal, Peterson argues her out-of-court statements were unreliable because, while she reported the abuse suffered at his hands, she omitted her mother's involvement. He points out that she did not tell Carroll at their first interview that Cheryl also abused her, or that A.R.P. ever touched Peterson's penis. Cheryl was present at the first meeting because A.R.P. was reluctant to leave her presence. During the second interview, which Cheryl did not attend, A.R.P. did tell Carroll about her mother's involvement, including the incident when Cheryl placed A.R.P.'s hand on Peterson's penis. At trial, she testified Peterson "told me to touch his front private and go up and down." Carroll testified it was not unusual for a child to avoid implication of a parent who is within earshot: "Sometimes children don't always want to admit or be honest about everything when a parent [is] present."

¶12 Peterson also argues her statements lacked sufficient indicia of reliability because at trial she stated she did not remember speaking to Carroll. Two years passed between their interviews and the trial; it is not surprising that an eight-year-old does not remember speaking to a person she met briefly on two occasions two years earlier. Carroll also investigated possible abuse in the Peterson household at an earlier date and A.R.P. did not remember Carroll from that meeting either.

¶13 At trial, A.R.P. responded, "I don't remember that" when asked, "[D]id you tell people that [Peterson] put his finger in you and went back and forth real hard?" This testimony, Peterson claims, is inconsistent with the statements Carroll attributes to her. The fact that she did not recite verbatim the language she used in an interview she no longer remembers is somewhat irrelevant. She testified on cross-examination what Peterson did to her was painful: "When I'd use the bathroom, I think why it hurt, because probably he put [Vaseline] in it, too much [Vaseline] in."

¶14 Peterson claims her statements were inconsistent whether he inserted his finger partially or completely into her vagina. Dr. Willman, who examined A.R.P. and testified at trial, stated that a six-year-old child neither could nor would fully comprehend any particular degree of vaginal penetration. We also note that the degree of penetration is irrelevant to his rape convictions. See SDCL 22-22-2 (defining sexual penetration, in part, as "any intrusion, however slight").

¶15 Peterson also complains A.R.P.'s testimony is unreliable because she was instructed by Cheryl to lie or omit facts. However, during the first interview with Carroll, A.R.P. turned to her mother and asked if she would be in trouble for telling--Cheryl replied, "No." Furthermore, she testified at trial that Cheryl had not told her to deny her role in the abuse. Even if she was told to lie, the consistency with which she told, and retold, the nightmare which was her life indicates she could not or would not follow those instructions. As the State puts it, Peterson is "searching for unreliability in a fountain of truth."

¶16 The picture which emerges from the version related by Carroll essentially mirrors the one A.R.P. told in her own words from the witness stand. The fact that A.R.P. no longer remembered Carroll or the precise words she used when she spoke to her may strengthen her reliability because her account did not change.

¶17 It has not been shown that the trial court abused its discretion in admitting A.R.P.'s out-of-court statements. Buller, 484 N.W.2d at 887 (citing Floody, 481 N.W.2d at 252).

¶18 2. WHETHER THE SENTENCE IS EXCESSIVE AND AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT.

¶19 Peterson claims his sentence is excessive, disproportionate to his crimes, that it shocks the conscience, and constitutes cruel and unusual punishment under both the South Dakota and the United States Constitutions. See ...