State v. Steichen

• Decision Date: 23 December 1998
• Docket Number: No. 20347,20347
• Citation: 1998 SD 126,588 N.W.2d 870
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert STEICHEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 870

588 N.W.2d 870

1998 SD 126

STATE of South Dakota, Plaintiff and Appellee, v. Robert STEICHEN, Defendant and Appellant.

No. 20347.

Supreme Court of South Dakota.

Argued Sept. 15, 1998.

Decided Dec. 23, 1998.

Mark Barnett, Atty. Gen., Anthony M. Sanchez, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Rodney Freeman, Kent Shelton, and Jeff Burns of Churchill, Manolis, Freeman, Kludt and Shelton, Huron, for defendant and appellant.

MILLER, Chief Justice.

¶1 Steichen appeals his conviction on several charges, including first-degree rape, third-degree rape, and sexual contact with a child under sixteen. We affirm.

FACTS

¶2 Steichen was charged in Aurora County with three counts of first-degree rape and in Jerauld County with seven counts of third-degree rape and one count of sexual contact with a child under sixteen. He pleaded not guilty on all counts. The judge granted Steichen's motion for consolidation, and all charges were tried in Aurora County.

¶3 The Aurora County charges arose out of Steichen's sexual acts against HF, his six-year-old stepdaughter. It was alleged that between January 10 and February 12, 1997, Steichen penetrated HF's anus and mouth with his penis. The acts all occurred at night in the Steichen home, when his wife Phyllis was away. HF testified that Steichen threatened to kill her if she told anyone what he had done to her.

¶4 The Jerauld County charges stemmed from Steichen's sexual acts against KC. The alleged acts began in 1996, when KC was fourteen years old and baby-sitting Steichen's children and stepchildren, and occurred at night in the Steichen home while Phyllis was away. According to KC, in July of 1996, Steichen kissed her, fondled her breasts, and digitally penetrated her vagina. In the middle of July, Steichen again digitally penetrated KC's vagina, kissed her, fondled her breasts, and vaginally penetrated her with his penis. In another mid-July incident, Steichen fondled KC's breasts, penetrated her anally with his penis, kissed her, and told her he loved her. In August, Steichen kissed KC, told her he loved her, fondled her breasts, and penetrated her vaginally with his penis. Again in August, Steichen fondled KC's breasts and forced her to perform fellatio on him. In December, Steichen vaginally penetrated KC with his penis, kissed her, told her he loved her, and fondled her breasts. In January of 1997, Steichen kissed KC, fondled her breasts and digitally penetrated her vagina. KC also testified that Steichen told her he would kill her if she told anyone what he had done to her.

¶5 Prior to trial, the State filed a motion for admission of evidence of Steichen's "other acts." After a hearing, the trial court granted the motion, finding the other acts evidence was relevant to show motive, common scheme and plan, opportunity, lack of mistake or accident, and continuing course of criminal conduct. The court further found that the probative value of the other acts substantially outweighed the potential for unfair prejudice.

¶6 Steichen was found guilty on all eleven counts. On the three counts of first-degree rape in Aurora County, he was sentenced to thirty years on count one, seventy-five years on count two, and to life imprisonment on count three. On the Jerauld County charges, Steichen was sentenced to eight years for one count of third-degree rape, fifteen years on each of six counts of third-degree rape, and fifteen years for the one count of sexual contact with a child under sixteen. Steichen is responsible for up to $35,000 in restitution for each victim for any counseling received.

¶7 On appeal, Steichen raises the following issues:

1. Whether the trial court abused its discretion in allowing other acts evidence to be admitted.

2. Whether the trial court erred in not allowing Steichen to confront MF concerning other sexual acts with HF.

DECISION

¶8 1. The trial court did not abuse its discretion in allowing other acts evidence to be admitted.

¶9 Steichen argues the trial court abused its discretion in allowing other acts evidence to be admitted. We disagree.

a. Other Acts Evidence

¶10 Steichen would have us believe that fourteen witnesses provided other acts evidence at trial. Upon review of the record, however, we find that number to be inaccurate. ¹ The other acts evidence admitted at trial included testimony from KC, the victim in the Jerauld County charges. ² Other acts evidence also came from the testimony of two of Steichen's former stepchildren and two former baby-sitters.

¶11 KC testified that in June of 1996, Steichen was driving a van with his children, stepchildren and KC as passengers. Steichen asked KC if he could feel her breasts. When she refused, Steichen reached over, lifted her shirt, and fondled her breasts. KC also witnessed Steichen strike his children, stepchildren and Phyllis when she was pregnant.

¶12 MF, HF's older sister and Steichen's stepdaughter, testified to sexual acts Steichen committed against her when she was between the ages of nine and eleven or twelve. These acts all occurred at night in the Steichen home when MF's mother was away from the home. She testified that Steichen touched her vagina with his fingers, performed cunnilingus on her more than ten times, fondled her breasts, and kissed her. Steichen told her he would kill her if she told anyone what he had done to her. MF also testified that Steichen had struck her, her sisters, and her mother.

¶13 LR, a former baby-sitter for Steichen's children and stepchildren, testified that, in June 1992 when she was fourteen years old, she had "consensual" sex with Steichen. ³ This occurred at night in the Steichen home, when Phyllis was hospitalized after giving birth to a daughter. Steichen kissed her and vaginally penetrated her with his penis. In 1993, Steichen and LR also had "consensual" sex in the home of one of LR's friends. Steichen penetrated LR vaginally with his penis and performed cunnilingus on her. LR also witnessed Steichen strike his wife.

¶14 CP, Steichen's former stepson, testified to acts that occurred in 1989, when CP was only six or seven years old. The acts occurred at night in the Steichen home. Steichen anally penetrated CP with his penis and performed fellatio upon him.

¶15 BC, a former baby-sitter for the Steichen children and stepchildren, testified that Steichen had sexual contact with her at the end of July or beginning of August 1996. BC was thirteen years old at the time. Steichen rubbed BC's vaginal area under her shorts, but above her underwear. He attempted to kiss her and grabbed one of her breasts. This took place at night in the Steichen home.

b. Analysis

¶16 A trial court's decision to allow the admission of other acts evidence will not be reversed unless the trial court abused its discretion. State v. Christopherson, 482 N.W.2d 298, 300 (S.D.1992). The review 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.' " Id. at 302 (quoting State v. Rose, 324 N.W.2d 894, 895-96 (S.D.1982) (citation omitted)).

¶17 Evidence of a defendant's other crimes or acts is generally not admissible, unless an exception can be met. SDCL 19-12-5; State v. Moeller, 1996 SD 60, p 12, 548 N.W.2d 465, 471; State v. Chamley, 1997 SD 107, p 9, 568 N.W.2d 607, 611. The admission of other acts evidence is governed by SDCL 19-12-5, which provides:

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.

See State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995). "[P]rior bad acts evidence is not admissible to show that, merely because a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged." Moeller, 1996 SD 60, p 12, 548 N.W.2d at 471 (citations omitted). However, it may be admitted for other purposes, such as those listed in the statute. State v. Champagne, 422 N.W.2d 840, 842 (S.D.1988). ⁴

¶18 Before other acts evidence can be admitted, the trial court must engage in a two-prong analysis:

(1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case (factual relevancy); and (2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect (legal relevancy).

Ondricek, 535 N.W.2d at 873 (citing State v. Steele, 510 N.W.2d 661, 667 (S.D.1994)).

¶19 Generally, " 'it is preferable to delay the admission of [other acts] evidence until the defense rests.' " State v. Werner, 482 N.W.2d 286, 290 (S.D.1992) (quoting United States v. Estabrook, 774 F.2d 284, 289 (8th Cir.1985)). Once the defense rests, the trial court is then in the "best position to determine whether the issue sought to be proved by the extrinsic evidence is really in dispute, and if so, to assess its probative worth and possible prejudicial effect." Id. However, admission of other acts evidence may be properly admitted during the State's case-in-chief. Id. ("[W]here it is made clear at the outset of the trial that the defendant's principal defense is lack of knowledge or intent, and thus the issue is unarguably in dispute, the government may introduce the [other acts] evidence in its case-in-chief."). "[T]he order of proof is within the sound discretion of the trial court[.]" Id.

(1) Relevancy

¶20 First, for other acts evidence to be admissible it must be relevant. Relevant evidence is "[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." SDCL 19-12-1; see State...