State v. Smith
| Decision Date | 23 March 1999 |
| Docket Number | No. 20384,20384 |
| Citation | 599 N.W.2d 344,1999 SD 83 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Bruce Edgar SMITH, Sr., Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for plaintiff and appellee.
Thomas E. Adams, Deadwood, for defendant and appellant.
¶1 Bruce Edgar Smith, Sr., (Smith) was indicted on twenty-five counts of rape in violation of SDCL 22-22-1(2) (forcible rape) or in the alternative rape in violation of SDCL 22-22-1(5) (statutory rape) and sexual contact with a minor in violation of SDCL 22-22-7 and SDCL 22-4-1. Following a jury trial, he was found guilty of eighteen counts of forcible rape. Smith appeals. We affirm.
¶2 Smith was married to Doris Smith (Doris) in 1989. Doris had one child, N.F. who was born in 1980. Smith had two sons, B.S. born in 1974, and S.S. born in 1977.
¶3 In the summer of 1994 the family moved to Custer, South Dakota from Colorado. In September 1994, they moved to Lead, South Dakota, with the exception of S.S. He had been sent to live with his mother as Doris found out N.F. was pregnant and believed S.S. to be the father. N.F. became pregnant prior to the family's departure from Colorado. N.F.'s child, C.S., was born February 13, 1995.
¶4 In 1996, Doris filed a CHINS 1 petition to have N.F. admitted to Our Home, a group facility in Parkston, South Dakota. N.F. was continuing to have a sexual relationship with S.S., against the wishes of Smith and Doris. While she was at Our Home, she confided in a counselor that Smith had repeatedly molested her. The counselor turned this information over to law enforcement.
¶5 When the officers interviewed N.F. she told them the sexual abuse by Smith began when she was 12. At first, Smith began to touch her "private parts." He next took her in his van to places outside of town and made her remove her clothes. She was uncooperative. He then threatened her stating she would never see her mother or little sisters 2 again if she did not cooperate. He attempted to have sexual intercourse with her but was unsuccessful due to her small size. When she was 13 and the family was living in Ashland, Wisconsin, Smith successfully had intercourse with N.F. for the first time. For the next few years, N.F. reported, Smith had sexual intercourse or oral sex with her on almost a daily basis. N.F. claims Smith told her not to tell anyone, threatening her and later threatening her unborn child. N.F. told officers that she had told her mother she was worried about becoming pregnant. At that time her mother replied: "you don't have much to worry about because Bruce is almost completely sterile."
¶6 On November 18, 1996 Deputy Sheriff Duane Russell (Russell) and DCI Agent Dave Mueller (Mueller) contacted Smith in his hotel room in Deadwood, South Dakota. They asked that he come to the Sheriff's Office to answer questions about his stepdaughter. Doris drove Smith to the Sheriff's Office where he was interviewed.
¶7 Smith was given his Miranda warning before the interview began. He indicated he understood his rights and was willing to waive his rights and allowed the interview to proceed. Smith denied having any type of sexual relationship with N.F. He stated N.F. was "full of shit" and if he did have a sexual relationship with N.F. he would "blow [his] head off." He did, however, relate to the police a dream he had involving N.F. He had dreamed he was drunk and "her and I had gone to bed." He told officers he later asked Doris if he and N.F. had ever had sex, to which she replied, "you never had sex with her, did you?" During the interview he did agree to take a DNA test to prove the paternity of C.S.
¶8 On February 26, 1997, Deputy Russell obtained a search warrant to obtain a blood sample from Smith. The purpose of the sample was to compare the DNA of N.F.'s son C.S. to Smith's DNA. He was again given his Miranda warning. He invoked his rights and declined to answer any questions. Russell asked no further questions. When he was walking down the hall at the Sheriff's department, Smith spontaneously stated to Russell, "What am I going to do if I am the father of that child?"
¶9 The results of the DNA test showed S.S. could not be the father of the child. However, there was a 99.9% chance Smith was the father of C.S. A second test was conducted. It produced the same results.
¶10 The jury found Smith guilty on eighteen counts of forcible rape in violation of SDCL 22-22-1(2). A trial to the court was subsequently held on the habitual offender charge and Smith was adjudicated a habitual offender. He was sentenced to 18 terms of twenty (20) years each with five of those sentences to be consecutive and the remainder to be concurrent.
¶11 Smith appeals raising the following issues:
1. Whether the trial court erred in permitting "other bad acts" testimony by allowing DNA evidence showing Smith was the father of N.F.'s child.
2. Whether the indictment failed to adequately apprise Smith of the crimes charged in violation of his right to due process.
3. Whether the trial court erred in denying Smith's motion to suppress statements he made to law enforcement officers.
4. Whether the prosecutor committed prosecutorial misconduct in the closing arguments.
¶12 1. Whether the trial court erred in allowing "other bad acts" testimony by allowing DNA evidence showing Smith was the father of N.F.'s child.
¶13 We recently stated our standard of review for a trial court's evidentiary rulings in Veeder v. Kennedy:
Evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Oster, 495 N.W.2d 305, 309 (S.D.1993). The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).
Veeder v. Kennedy, 1999 SD 23, p 41, 589 N.W.2d 610, 619 (citing State v. Goodroad, 1997 SD 46, p 9, 563 N.W.2d 126, 129).
¶14 The trial court admitted "[N. F.'s] sexual relations (consisting of sexual contact and sexual intercourse) from the time that it first began up to and including the acts immediately preceding the acts charged." Smith claims the trial court abused its discretion when it admitted into evidence this "other bad acts" evidence, and in particular the DNA results, which showed Smith to be the father of N.F.'s child. Because N.F. was impregnated in Colorado, Smith claims the results of the DNA test are not admissible under SDCL 19-12-5 (FedREvid 404(b)).
¶15 The trial court properly reviewed the 404(b) request by (1) making a determination as to the relevance of the prior acts evidence to a material issue in the case and identifying the specific criteria which are the basis for its admission and (2) weighing the probative value of the evidence against its prejudicial effect. State v. Moeller, 1996 SD 60, p 13, 548 N.W.2d 465, 472; State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995).
¶16 "[E]vidence 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" is relevant. SDCL 19-12-1; see also State v. McDonald, 421 N.W.2d 492, 494 (S.D.1988). The trial court admitted the prior acts evidence for the specific limited purpose of: "disclosing the relationship between the parties, the opportunity and inclination of the Defendant to commit the acts complained of in the indictment, and to corroborate the charges."
¶17 The State must prove each and every element of both rape and sexual contact, which included the identity of the perpetrator. Thibodeau v. State, 298 N.W.2d 818, 819 (S.D.1980). Evidence that is relevant to the charge of sexual contact is that of the alleged perpetrator's intent. State v. Champagne, 422 N.W.2d 840, 843 (S.D.1988). When considering the sexual contact charge, the State must prove beyond a reasonable doubt that the perpetrator's intent was to "arouse or produce sexual gratification" in himself or his victim. Id.
¶18 In State v. Sieler, 397 N.W.2d 89 (S.D.1986), we upheld admission of prior sexual acts perpetrated by a father upon a daughter. We did so because in part the prior acts identified a "course of continuous criminal action." Id. at 93. It was probative towards defining the nature of the family relationship. Likewise in State v. Roden, 380 N.W.2d 669 (S.D.1986), we upheld prior bad acts evidence which allowed admission of evidence that the defendant, who was charged with rape of a fourteen-year-old girl who resided in defendant's household, had on previous occasions repeatedly raped a stepdaughter under similar circumstances. We allowed the admission of this evidence on the grounds it defined the relationship of the defendant to young girls in his household. Id. at 671. Admission of prior bad acts is not limited to those instances listed in the statute as it uses the prefatory phrase "for other purposes." State v. Dale, 439 N.W.2d 98, 109 (S.D.1989). Admission of this prior bad acts evidence for the reasons set forth by the trial court is a "purpose" under this statute. Sieler, 397 N.W.2d at 93; Roden, 380 N.W.2d at 671.
¶19 After making its finding of relevance and identifying which criteria justify its admission, the trial court engaged in the balancing process of ascertaining whether the "danger of unfair prejudice substantially outweighs the probative value of the 'evidence in view of the availability of other means of proof' and other factors under SDCL 19-12-3 (Rule 403)." State v. White, 538 N.W.2d 237, 243 (S.D.1995). Prejudice does not mean infliction of damage to the opponent's case that results from the legitimate probative force from the evidence;...
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State v. Pursley, 27445.
...occurs, “we will reverse the conviction only if the misconduct has prejudiced the party as to deny him or her a fair trial.” State v. Smith, 1999 S.D. 83, ¶ 44, 599 N.W.2d 344, 354. We must disregard “[a]ny error, defect, irregularity, or variance which does not affect substantial rights.........