State v. Ree

• Decision Date: 19 April 1983
• Docket Number: No. 13756,13756
• Citation: 331 N.W.2d 557
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Timothy Owen REE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 557

331 N.W.2d 557

STATE of South Dakota, Plaintiff and Appellee, v. Timothy Owen REE, Defendant and Appellant.

No. 13756.

Supreme Court of South Dakota.

Argued Nov. 15, 1982.

Decided March 23, 1983.

Rehearing Denied April 19, 1983.

Curtis G. Wilson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard Braithwaite, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

Timothy Owen Ree, appellant (Ree), appeals from his conviction for sexual contact with a child under fifteen years of age. We affirm.

Ree was charged with rape in the third degree and sexual contact with a child under fifteen years of age (sexual contact) when on November 21, 1981, he was found hiding in a closet off a bedroom in which a thirteen-year-old girl (Francine) was on the bed, clad only in a shirt with a blanket over her. This discovery was made by Francine's mother and her boyfriend when they returned home from a downtown bar and entered the bedroom. Further details of Ree's conduct will be discussed where appropriate to dispose of the issues.

At trial, at the close of the State's evidence, the trial court dismissed the rape charge and submitted the sexual contact charge to the jury, which returned a verdict of guilty. Ree was sentenced to serve three years in the State Penitentiary.

On appeal Ree raises three issues, two of which go to the sufficiency of the evidence and a third to the propriety of an instruction. We will consider the sufficiency of the evidence issues first.

Ree was charged under SDCL 22-22-7 which reads:

Any person, fifteen years of age or older, who knowingly engages in sexual contact with another person, other than his spouse when such other person is under the age of fifteen years is guilty of a Class 4 felony. If the actor is less than three years older than the other person, he is guilty of a Class 1 misdemeanor.

Ree's contention is that the State failed to prove by competent evidence that he was at least three years older than Francine so that the offense constituted a felony.

The evidence to establish Ree's birthdate consisted principally of a document denominated a Complaint Record of one Timothy Owen Ree, which showed his date of birth (d.o.b.) to be 11-20-58. This record had been prepared in 1975. The record was offered and received into evidence under SDCL 19-16-12 as a public document exception to the hearsay rule. Foundation for the report was laid by the testimony of the officer who had prepared the report, who testified that Ree had stated to him that he was born on November 20, 1958.

SDCL 19-16-12, which embodies Federal Rules of Evidence 803(8), provides:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

(1) the activities of the office or agency, or

(2) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or

(3) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law,

are not excluded by Sec. 19-16-4, even though the declarant is available as a witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

Ree contends that the foundation was defective because the d.o.b. was not "observed pursuant to duty imposed by law as to which matters there was a duty to report," inasmuch as his d.o.b. was not "observed" by the individual completing the Complaint Record.

While Weinstein's Evidence states that personal knowledge should be required under F.R.E. 803(8)(b), 4 Weinstein's Evidence p 803(8) at 803-196 (1981), this requirement apparently does not preclude admittance of "routine matters" noted on records. United States v. Grady, 544 F.2d 598 (2d Cir.1976), 37 A.L.R.Fed. 819 (N.Y.Crt.App.1976); Annot., 37 A.L.R.Fed. 831 (1978). In United States v. Grady, the court, pursuant to F.R.E. 803(8)(b) admitted reports containing serial numbers of firearms for the limited purpose of showing that those weapons were found in Northern Ireland on certain dates. That court stated that the reports did not concern observations of commission of crimes by police, but rather simply related to the "routine function" of recording serial numbers.

F.R.E. 803(8) seeks to preclude admittance of a record tending to prove the prosecution's case since it would deprive the defendant of cross-examination. Thus, this rule is primarily concerned with recordings of an officer's "first hand observation of a crime." Annot., 37 A.L.R.Fed. at 835. As in Grady, however, the record in the present case does not show an observation of a crime; rather the record includes data related to a "routine function." In Grady, the routine function was listing serial numbers of firearms. In the present case, the routine function was the listing of a birthdate on a juvenile record. Accordingly, the juvenile Complaint Record was properly admitted. ¹

Ree next contends that the evidence was insufficient to convict him of sexual contact because the evidence failed to show a touching of Francine's genitalia. At the time of this incident, SDCL 22-22-7.1 defined the term "sexual contact" as used in SDCL 22-22-7 to mean, "any touching, not amounting to rape, of the breasts of a female or the genitalia of any person with the intent to arouse or gratify the sexual desire of either party." Ree points to the child's reluctance and lack of response in her testimony to perhaps indicate that a "sexual contact" did not occur. The State points out that it is clearly understandable that Francine, who at the time of trial was fourteen years old, would be hesitant about testifying as to such an attack.

In State v. Grey Owl, 316 N.W.2d 801 (S.D.1982), this court stated the status by which this court reviews the sufficiency of the evidence.

In determining the sufficiency of evidence on appeal the test is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt. In making this determination, this court will accept that evidence and the most favorable inferences that can be fairly drawn therefrom which will support the verdict.

316 N.W.2d at 804 quoting from State v. Wilson, 297 N.W.2d 477 (S.D.1980); see State v. Lien, 305 N.W.2d 388 (S.D.1981); State v. Brammer, 304 N.W.2d 111 (S.D.1981).

When the fourteen-year-old prosecution witness was called to the witness stand she showed some hesitancy about relating in detail the intimate facts of the encounter. She testified that she knew what her genitals and vagina are. When asked where Ree touched her she responded, "between the legs," but was unable to be more specific. After a short recess and conference between the deputy state's attorney and the witness, the following testimony was elicited:

Q (BY MRS. BREKKE) I know this is really hard for you, Francine, because I'm asking you such minor, minor details. But, we have to have you be more specific and you've got to tell us. You said that the defendant touched you between the legs. We need to know more specifically where and what kind of touching, if any.

A He tried to stick his fingers in my vagina.

Q Did he ever get his fingers in your vagina?

A I don't know.

Q When you say you don't know--does--what do you mean by you don't know?

A I don't remember. I don't know.

The issue here is merely whether there was a touching of the genitals, not whether Ree succeeded in putting his finger into her vagina. Only a mere touching is necessary. SDCL 22-22-7.1. Considering the testimony detailed above, in a light most favorable to the jury's verdict, it is sufficient to support the conviction of sexual contact.

Finally, Ree complains that the trial court deleted a portion of one of his requested instructions to the jury. The instruction as proposed, with the deleted portion underlined, is as follows:

The charges against the defendant are one which, generally speaking, are easily made, and once made are difficult to disprove--even if the defendant is innocent--and even though he has no duty to disprove them.

From the nature of a case such as this the complaining witness usually is the only witness for the prosecution testifying directly as to the alleged acts constituting the crimes. Therefore, the law requires that you examine the testimony of the prosecuting witness with caution and consider and weigh it in the light of all the circumstances shown.

In giving this instruction, the court does not mean to imply an opinion as to the credibility of any witness or the weight to be given his or her testimony.

The trial court gave the balance of the instruction. Ree contends that the trial court erred under our decision in State v. Fulks, 83 S.D. 433, 160 N.W.2d 418 (1968), although he does not equate such error with a violation of his constitutional rights.

In Fulks, the appellant objected to the trial court giving a somewhat similar instruction, claiming that a portion of it violated his fifth amendment rights against self-incrimination. The Fulks instruction, with the part objected to underlined, was as follows:

It is not essential to a conviction in this case that the testimony of the prosecuting witness be corroborated by other evidence provided that from all the evidence you are convinced beyond a reasonable doubt and to a moral certainty of defendant's guilt. However, a charge such as that made against the defendant in this case is one which, generally speaking, is easily made, and once made difficult to disprove even if the defendant is innocent.

From the nature of a case such as this the complaining witness and defendant are usually the only witnesses to the actual act or acts constituting the crime. Therefore, you are instructed...