State v. Rose, 13628

• Decision Date: 07 September 1982
• Docket Number: No. 13628,13628
• Citation: 324 N.W.2d 894
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Richard ROSE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 894

324 N.W.2d 894

STATE of South Dakota, Plaintiff and Appellee, v. Richard ROSE, Defendant and Appellant.

No. 13628.

Supreme Court of South Dakota.

Sept. 7, 1982.

Decided Oct. 13, 1982.

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

David M. Husby, Pennington County Public Defender, Rapid City, for defendant and appellant.

FOSHEIM, Chief Justice.

Appellant was convicted by a jury of sexual contact with a child under fifteen in violation of SDCL 22-22-7. ¹ He was sentenced to five years in the South Dakota State Penitentiary and appeals from the judgment. We affirm.

SDCL 22-22-7.1 defines the term sexual contact used in SDCL 22-22-7. It specifies that the requisite intent is arousal or gratification of the sexual desire of either party. Before trial the State sought a ruling from the trial court on the admissibility of other crimes to prove intent, motive, opportunity, preparation, knowledge and plan pursuant to SDCL 19-12-5, which reads:

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.

At the pre-trial hearing on the State's request, evidence was offered that appellant had sexual contact with or raped children under fifteen years of age on several occasions prior to the January 17, 1981, act with C. K. with which he was charged. This evidence was introduced through three witnesses: C. K., K. H. and T. H., the alleged victims of the other crimes (nine, eight and twelve years old respectively at the time of trial). They testified at length that the other crimes occurred on numerous occasions when appellant was helping his wife babysit. Appellant cross-examined each witness. The trial court ordered the other crimes evidence admitted solely as to the element of intent and limited such evidence to C. K.'s testimony of two other crimes alleged to have occurred in November 1980 and December 1980 respectively; K. H.'s testimony of one other crime alleged to have occurred in December 1980 or January 1981; and T. H.'s testimony of other crimes alleged to have occurred during the weekend of the Days of '76 in Deadwood, South Dakota, in August 1980. The trial court's order was based on its opinion that the State had established such other crimes by substantial evidence and that the dates of each incident were fixed with sufficient certainty to allow refutation. The court disallowed the balance of the other offered evidence because it did not meet these standards.

The sole issue raised by appellant on appeal is whether the trial court abused its discretion when it admitted other crimes evidence as to appellant's intent to commit the crime charged. Appellant argues that the other crimes evidence was inadmissible because it was irrelevant to the question of appellant's intent or, if relevant, its probative value was substantially outweighed by its prejudicial effect.

Since evidence of other crimes is inadmissible to prove the bad character of the accused, it must first pass the test of relevancy to one of the SDCL 19-12-5 exceptions. State v. Johnson, 316 N.W.2d 652 (S.D.1982); State v. Houghton, 272 N.W.2d 788 (S.D.1978). In this case the evidence must be relevant to appellant's intent to commit the crime charged. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." SDCL 19-12-1. Appellant's defense was that he did touch the genitalia of C. K. but not with the intent to sexually arouse or gratify; rather, he did so in the course of cleaning her after she wet herself and in the course of examining her for eczema and applying medication for eczema. A psychiatrist, called by the defense, testified that appellant is obsessed with cleanliness and that is why appellant had the children in his care take frequent showers and why he checked them thoroughly for cleanliness. The testimony of C. K., K. H. and T. H., however, clearly indicates that appellant touched them for his sexual gratification. Their testimony is relevant because it tends to make the existence of the specific intent required by SDCL 22-22-7.1 more probable than it would be otherwise.

The next question is whether the other crimes evidence, even though relevant, should nevertheless have been excluded under SDCL 19-12-3 ² because "its probative value is substantially outweighed by the danger of unfair prejudice." Johnson, supra; State v. Brown, 285 N.W.2d 843 (S.D.1979); Houghton, supra. The standard of review in this court is whether the trial court abused its discretion in admitting the evidence. Id. In making such review we are bound by the rule that the question is "not whether the judges of this court would have made an original like ruling, but rather whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion." F. M. Slagle & Co. v. Bushnell, 70 S.D. 250, 16 N.W.2d 914, 916 (1944); Myron v. Coil, 82 S.D. 180, 143 N.W.2d 738 (1966); Davis v. Kressly, 78 S.D....