State v. Svihl

• Decision Date: 14 January 1992
• Docket Number: No. 17499,17499
• Citation: 490 N.W.2d 269
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Randy SVIHL, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 269

490 N.W.2d 269

STATE of South Dakota, Plaintiff and Appellee, v. Randy SVIHL, Defendant and Appellant.

No. 17499.

Supreme Court of South Dakota.

Considered on Briefs Jan. 14, 1992.

Decided Aug. 19, 1992.

Mark Barnett, Atty. Gen., Craig M. Eichstadt, Deputy Atty. Gen., Pierre, for plaintiff and appellee.

Catherine E. Mattson, Rapid City, for defendant and appellant.

AMUNDSON, Justice.

Randy Svihl (Svihl) appeals from his jury conviction and trial court's judgment and sentence on nine counts of rape. We affirm.

FACTS

The victim in this case, E.U., was born January 4, 1977. Her biological parents were married at the time of her birth, but divorced when she was four years old. The victim's mother moved in with Svihl in the fall of 1981. The two were married in 1983 shortly after the divorce of E.U.'s parents.

E.U. lived in North Dakota with her mother, her brother, and Svihl and attended school there through the end of the third grade. In 1986, E.U. moved back to Lead, South Dakota, with her new family. The record reflects E.U. was raised in a dysfunctional home where her mother was alcoholic and abused drugs, her mother was physically abusive to her, and E.U observed frequent violence and assaultive behavior exhibited by her mother and Svihl in the home.

The record also reflects E.U. was an "A" and "B" student in grades one through five, but in the sixth grade, her grades dropped sharply. It further reflects she had numerous sexual partners between the fifth and seventh grade and began using alcohol at the same time. E.U. spent several months in 1990 at the Human Services Center (HSC) in Yankton, South Dakota, for court-ordered drug and alcohol treatment.

E.U. first reported an incident of sexual abuse to her mother in August, 1988. She told her mother that she had been lying on the living room floor half asleep when Svihl laid down next to her, rubbed her back, put his tongue in her ear and asked her to go upstairs to the bedroom. Although E.U. was upset and crying when she told her mother about the incident, her mother did not act until September, 1988, when she placed E.U. with friends outside the home.

From September 1988 until mid-1989, E.U. remained with friends or in foster care. E.U.'s mother underwent drug and alcohol treatment followed by a jail term during this time period. E.U. returned to her mother in mid-1989 until January, 1990, when State filed simple assault charges against mother for physically abusing E.U. E.U. was the complaining witness and the judge found mother not guilty.

Over a period of time after moving to Lead, E.U. spoke with several different persons regarding sexual abuse by Svihl. She spoke to her school counselor in Lead, who contacted the Department of Social Services (DSS). When DSS spoke to E.U., she denied the allegations. She spoke to Mark Ventrella, a counseling associate with West River Mental Health in Spearfish, South Dakota, on March 6, 1990. When she was at HSC, she confided in Kevin Haley, Kay Cox and James Charles, who all counseled her regarding sexual abuse. E.U. also consulted with Cindy Cihak at HSC in a sexual abuse "survivor's group."

During her counseling, E.U. recounted numerous instances of sexual contact with Svihl dating from the time she was approximately seven years old. These instances included vaginal intercourse, anal intercourse, and oral contact. With each individual she confided in, E.U. often denied any abuse occurred before opening up and discussing it, and details of the incidents as related by E.U. were often inconsistent.

These incidents of sexual contact and rape were referred to the Lawrence County State's Attorney's Office. In September of 1990, Svihl was indicted by a grand jury on nine counts of rape and he pleaded not guilty. Trial was held March 6, 7, and 8, 1991, and the jury returned a verdict of guilty to all nine counts. The judge sentenced Svihl to fifteen years on Count 1 and five years each on Counts 2, 3, 4, and 5, all to run consecutively. On Counts 6, 7, 8, and 9, Svihl received five years for each, to run concurrent with the other sentences. Thus, the total sentence was for thirty-five years. All of the sentences from this conviction were made to run concurrent with another penitentiary sentence presently being served by Svihl for sexual contact with another child. This appeal followed. Further facts will be discussed below as necessary.

ISSUES

1. Whether trial court erred in admitting into evidence expert testimony concerning the characteristics of sexually abused children and the credibility of the complaining witness?

2. Whether the evidence is sufficient to sustain a verdict of guilty beyond a reasonable doubt on all nine counts of rape?

ANALYSIS

1. Expert Testimony

Prior to trial, State requested that it be allowed to offer the testimony of Kathy Peil (Peil), who is an expert with regard to the behavioral manifestations of sexually abused children (rape trauma syndrome). Svihl made a motion to exclude Peil's testimony on the grounds that State could not lay the foundation to Peil's expertise in the field, the testimony was not accepted within the scientific community, and the testimony had no relevance.

The trial court held a pretrial motion hearing at which it took testimony from the expert and heard arguments from both parties. Svihl expressed concern at the hearing that Peil's testimony would be offered to enhance E.U.'s credibility. State told the court it would only be relying generally on Peil's expertise and would ask hypothetical questions relative to the evidence regarding behavior and statements being retracted by E.U. Trial court asked Svihl's counsel if she would object to the use of Peil's testimony to support State's theory of the case if State adequately established its theory, to which she replied she would have no objection. ¹

The trial court concluded Peil's testimony was being offered as a possible explanation for E.U.'s initial denials of abuse, and later retractions of her testimony and was therefore relevant and admissible to establish general characteristics of child sexual abuse syndrome. ²

State informed trial court at a pretrial motion hearing that it would be using hypothetical questions to elicit Peil's opinion as to general characteristics of sexually abused children, but would not ask Peil her opinion as to whether or not E.U. was sexually abused or for an opinion on the victim's credibility. Expert testimony is admissible without the use of hypothetical questions, as long as the expert is able, if asked, to specify the data upon which his/her opinions are based. SDCL 19-15-4. Generally, a hypothetical question asks an expert to assume the truth of selected facts and then state an opinion based upon those facts. McCormick on Evidence, 3rd Ed., 1984. The questions, as State propounded to Peil at trial, were not in the form of a hypothetical but went beyond an assumption of facts and referred specifically to E.U. Peil's solicited opinion based on those facts, and whether or not E.U. had been sexually abused, clearly exceeded State's legal position in support of Peil's testimony, as stated at the pretrial motion hearing. The questions actually asked of this witness came perilously close to an attempt on the part of State to bolster the credibility of the complaining witness.

Svihl moved to exclude Peil's testimony prior to trial but, in fact, never renewed the objection to any of the so-called hypothetical questions asked of Peil during her direct examination. Our review of the record reveals Svihl only requested a standing objection to Peil's testimony after having moved for acquittal at the close of State's case-in-chief and having such motion denied.

In State v. Gallipo, 460 N.W.2d 739 (S.D.1990), we stated:

This court has repeatedly held that reversible error cannot be predicated upon the denial of a motion in limine and that failure to specifically object to the evidence during trial forecloses complaint on the issue on appeal.

Id. at 743 (citing State v. Novaock, 414 N.W.2d 299 (S.D.1987); State v. Olson, 408 N.W.2d 748 (S.D.1987)). Svihl's objection to Peil's testimony at the pretrial hearing went to Peil's qualifications and the relevance of her testimony. Svihl never specifically objected to the hypotheticals at trial, and thus is precluded from presenting this issue on appeal. Gallipo, supra.

We further hold Svihl failed to preserve the issue because the trial court never ruled on Svihl's request for a standing objection. Svihl's attorney requested a standing objection after her motion for acquittal was denied, and the court's only response was: "We'll take a recess." We have previously held [I]f the trial court fails to decide or rule on a motion, nothing is presented for review in the appellate court.... The burden of demanding a ruling rests upon the party desiring it. If a party permits the court to proceed to judgment without action upon his motion or objection, he will be held to have waived the right to have the motion or objection acted upon.

State v. Sickler, 334 N.W.2d 677, 679 (S.D.1983) (citing American Fed. Sav. & Loan Ass'n v. Kass, 320 N.W.2d 800, 803 (S.D.1982)). Thus, since the court was never asked to rule on the request for a standing objection, under our previous holdings we cannot review the issue.

As is stated in Justice Henderson's special concurrence in State v. Floody, 481 N.W.2d 242, 258 (S.D.1991), "[m]embers of our Court have been troubled by [the use of expert testimony to enhance credibility] on several occasions." Again, this case raises a concern for the potential for trial by experts.

Much has been written on this subject in appellate decisions and treatises by professionals involved in the specialty of treating and counseling sexually abused children and the abuser. In the case of United States v. St. Pierre, 812 F.2d 417 (8th Cir.1987), the court of appeals affirmed convictions on charges alleging carnal...