State v. Schnaidt

• Decision Date: 19 May 1987
• Docket Number: No. 15530,15530
• Citation: 410 N.W.2d 539
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Fenius Otto SCHNAIDT, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 539

410 N.W.2d 539

STATE of South Dakota, Plaintiff and Appellee, v. Fenius Otto SCHNAIDT, Defendant and Appellant.

No. 15530.

Supreme Court of South Dakota.

Considered on Briefs May 19, 1987.

Decided July 22, 1987.

Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

William D. Gerdes, Aberdeen, for defendant and appellant.

SABERS, Justice.

Fenius Otto Schnaidt (Schnaidt) appeals his conviction for sexual contact with a child. We affirm.

Facts

In September of 1985, a twelve-year-old boy was in Schnaidt's dental office in Aberdeen, South Dakota. The boy was one of Schnaidt's orthodontic patients and came in for the purpose of having his braces tightened. Schnaidt's dental assistant began to adjust the boy's braces in the examining room and, encountering some difficulty, called Schnaidt over to assist. While the assistant had her back to the boy who was seated in a reclining chair, Schnaidt walked over, slid his hand between the child's legs, and grabbed his genitals through the outside of his clothing. At the time of this incident, Schnaidt was sixty-one years old.

When questioned by a law enforcement officer, Schnaidt initially denied any inappropriate contact. Upon further questioning he admitted it. He further admitted deriving pleasure from this experience by using the incident as a masturbation fantasy later on in the evening. Schnaidt told the officer that he had been impotent for two years and that he touched the child to see if he could still become sexually aroused.

On June 24, 1986, Schnaidt was charged with sexual contact with a child under the age of sixteen years in violation of SDCL 22 22 7. Schnaidt was tried on September 30, 1986, and found guilty of the offense charged.

Schnaidt's Claims

Schnaidt claims that the evidence was insufficient to support a conviction for sexual contact because he only touched the clothing which covered the victim's genitals, rather than the genitals themselves. He further claims that SDCL Secs. 22 22 7 and 22 22 7.1 are unconstitutionally vague as applied in this case.

1. SUFFICIENCY OF THE EVIDENCE TO CONVICT UNDER SDCL 22 22

7

In determining the sufficiency of the evidence in a criminal appeal, the question is whether there is evidence in the record which, if believed by the jury or the court, is sufficient to sustain the finding of guilt beyond a reasonable doubt. State v. Halverson, 394 N.W.2d 886, 887 (S.D.1986); State v. Vogel, 315 N.W.2d 321, 322 (S.D.1982); State v. Brammer, 304 N.W.2d 111, 113 (S.D.1981).

SDCL 22 22 7 provides in part:

Sexual contact with child under sixteen.... Any person, fourteen 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 sixteen years is guilty[.]

SDCL 22 22 7.1 defines "sexual contact":

"[S]exual contact," means any touching, not amounting to rape, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.

Schnaidt argues that there was no sexual contact as defined in SDCL 22 22 7.1 because he placed his hand on the outside of the victim's clothing. It is undisputed that Schnaidt grabbed the child's genitals through the clothing and that Schnaidt initiated the contact with the specific intent to gratify his sexual desires. Schnaidt contends that absent "skin to skin" contact between himself and the child, there was no violation of SDCL 22 22 7.

The construction of all criminal statutes is controlled by SDCL 22 1 1 which provides:

Common-law rule of strict construction abrogated. The rule of the common law that penal statutes are to be strictly construed has no application to this title. All its criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.

The legislative purpose behind SDCL 22 22 7 is "to protect the morals of children and to prevent their defilement." State v. Shields, 81 S.D. 184, 186, 132 N.W.2d 384, 385 (1965) (construing a forerunner of SDCL 22 22 7). "The obvious intent of the legislature is to deal with those who molest young children for sexual gratification without raping them." Brammer, supra at 114. SDCL 22 22 7.1 states that "any touching" results in a violation of SDCL 22 22 7 if the other elements of the offense are proven. The legislature chose only to limit what specific portions of the body were affected. Thus, any touching of the female breasts and the genitalia or anus of any person is prohibited under SDCL 22 22 7.1.

One of the primary rules of statutory construction is to give words and phrases their plain meaning and effect. Board of Regents v. Carter, 89 S.D. 40, 46, 228 N.W.2d 621, 624 625 (1975). "Courts may not interpret or construe a statute in a manner inconsistent with the plain language employed by the legislature." State v. Galati, 365 N.W.2d 575, 577 (S.D.1985). Considering the intent and purpose of SDCL 22 22 7 and 22 22 7.1, and construing them in accordance with SDCL 22 1 1, the meaning of these statutes is plain on its face. "Any touching" means precisely that and is not limited to "skin to skin" contact.

Schnaidt also argues that since SDCL 22 22 7.1 does not expressly prohibit touching the victim's clothing, he had no reasonable notice that his conduct was prohibited, which violates his due process rights. State v. Big Head, 363 N.W.2d 556 (S.D.1985). He further argues that the language of the statute is ambiguous and that if the legislature determines the definition of "sexual contact" incomplete, it may expand the definition but it is not the function of this court to do so. Galati, supra at 578. However, Schnaidt did not merely touch the child's clothing. He fondled the child's genitals through his trousers. The plain language of SDCL 22 22 7.1 prohibits any touching of the genitalia. There is nothing in the statute to suggest that the prohibited conduct can only be committed by skin-to-skin contact. When the language of a statute is clear, certain, and unambiguous, there is no occasion for construction, and this court's only function is to declare the meaning as clearly expressed in the statute. St. Paul Ramsey Medical Center v. Pennington County, 402 N.W.2d 340, 344 (S.D.1987).

While this is a case of first impression in South Dakota, other courts have considered whether skin-to-skin contact is necessary to constitute a violation of substantially similar statutes.

In State v. Reich, 186 Neb. 289, 183 N.W.2d 223, cert. denied, 404 U.S. 846, 92 S.Ct. 149, 30 L.Ed.2d 83 (1971), the statute prohibited the indecent fondling or massaging of the sexual organs of a female child. In appealing his conviction, the defendant argued that because the ten-year-old girl had on shorts and there was no showing that he placed his hand underneath her shorts, there was no fondling or massaging of the sexual organs within the meaning of the statute. Id., 183 N.W.2d at 224. In rejecting this argument, the court wrote:

The defendant asks us to read into the statute a meaning and a requirement that the massaging and the fondling referred to in the statute requires that it be on the naked body of the victim of the offense. While penal statutes must be construed strictly, it is not proper to give them a strained or an unnatural construction. They should be construed so as to give effect to the plain meaning of the words employed, and where of doubtful meaning, or application, the court should adopt the sense that best harmonizes with the context and the apparent policy and objects of the Legislature. [citation omitted] It is apparent that the statute was not intended to protect only unclothed small girls or permit the accomplishment of the act sought to be prohibited by the statute as long as they were performed on a clothed girl victim.

Id.

In Resnick v. State, 574 S.W.2d 558 (Tex.Crim.App.1978), the defendant was convicted of public lewdness. The court used a dictionary definition of "touch" ¹ to rule that the Texas statute defining sexual contact did not require flesh-to-flesh contact to constitute a touching. Id. at 559. The court wrote:

This definition makes it quite plain that the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest knowledge that the interposition of a layer of fabric between a person's hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed. Were we to accept appellant's contention that he did not 'touch' the officer's genitals because no flesh-to-flesh contact was made, absurd results would follow.

Id. at 560.

In State v. Samson, 388 A.2d 60 (Me.1978), the defendant was convicted of taking indecent liberties with a ten-year-old girl. Specifically, he touched her on the outside of her panties. Id. at 62. On appeal, the question was whether the crime of indecent liberties was consummated by the touching of the child's sexual organs from the outside of her clothing, or whether skin-to-skin contact was necessary to constitute a violation. Id. at 63. In holding that skin-to-skin contact was unnecessary, the court said:

We cannot believe that our Legislators intended that a piece of clothing, as flimsy and truth-revealing as a female's panties in the instant case, would insulate a child molester from the reach of our indecent liberties statute. The legislative intent was to protect children against the perpetration of sexual indignities to their person in a manner abhorrent to society and to save them from being subjected to iniquitous conduct having a tendency to produce serious emotional and psychological impact on such minors who, because of their tender age, are deemed incapable of protecting themselves. The statutory purpose would be frustrated to a very substantial...