State v. Thomas

• Decision Date: 22 January 1986
• Docket Number: No. 14852,14852
• Citation: 381 N.W.2d 232
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Eugene J. THOMAS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 232

381 N.W.2d 232

STATE of South Dakota, Plaintiff and Appellee, v. Eugene J. THOMAS, Defendant and Appellant.

No. 14852.

Supreme Court of South Dakota.

Argued Oct. 22, 1985.

Decided Jan. 22, 1986.

Mark A. Moreno, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard Braithwaite, Braithwaite Law Offices, Sioux Falls, for defendant and appellant.

HERTZ, Acting Justice.

This is a criminal appeal from a judgment and sentence in Beadle County, entered on a jury verdict, which found the appellant guilty of rape in the third degree and sentenced him to serve a term of ten years in the South Dakota State Penitentiary. We affirm.

On July 31, 1984, Eugene J. Thomas, (Thomas), was charged with three counts of rape pursuant to SDCL 22-22-1(5). The information charged him with raping his step-daughter on three separate occasions in the family home in Huron, South Dakota. Each alleged incident comprised a separate count. Thomas was convicted on Count I but he was found not guilty on Counts II and III.

The first incident and the one upon which Thomas was convicted occurred in mid-June of 1982. The circumstances surrounding this incident included not only the defendant and his step-daughter, Phyllis Thomas, (Phyllis), but also Phyllis' friend Toni Severson, (Toni), who was residing with the Thomas family at the time.

Phyllis had experienced problems with her parents for many years and had been involved with the juvenile court since she was 11 years of age. Thomas and his wife Vicki Thomas, (Vicki), who is Phyllis' natural mother, voluntarily terminated their parental rights over Phyllis in 1983 due to their inability to cope with her violent temper and attempts to run away from home. Toni Severson moved into the Thomas home at the end of May 1982. She had experienced similar trouble with her parents and had spent the previous year living in foster homes.

Thomas, Phyllis and Toni were together in the living room of the Thomas residence on the morning of the first incident. At that time, Phyllis was 13 years of age and Toni was 17 years of age. Vicki Thomas was in the hospital during this period. Thomas and Vicki were divorced at the time of trial.

Based on Phyllis' testimony the June 1982 incident was reconstructed as follows. Thomas, Phyllis and Toni were watching television. Thomas and Toni were seated together on the south couch and Phyllis was seated on the east couch. Sometime around 10:30 a.m., Toni began making sexual advances toward the appellant which culminated in Thomas putting his finger in Toni's vagina. Phyllis remained in the room and acted as lookout while this activity took place. Thereafter, Phyllis went into the kitchen to fix lunch. Shortly after the parties had eaten their meal, they were all once again seated in the living room watching television. Similar to Toni's conduct that morning, Phyllis began making sexual advances toward Thomas. According to her testimony, Thomas responded by fingering Phyllis in an identical manner. Later on that same afternoon, Toni again initiated sexual acts with the appellant. This time, however, their activity commenced with digital penetration and concluded with Toni and Thomas having sexual intercourse in his bedroom. Again, Phyllis served as the lookout.

The second and third rape incidents purportedly occurred in June and July of 1983 respectively. Similar to the first one, these subsequent incidents also involved the appellant's alleged acts of digital penetration upon Phyllis. In each incident, Phyllis either initiated or acquiesced to Thomas' sexual advances.

Over defense counsel's objection, Phyllis was permitted to testify that subsequent to the third rape incident in July of 1983, she and Thomas began having sexual intercourse. At trial, Thomas testified that none of the three incidents involving Phyllis ever took place because he was away from Huron on truck driving excursions at the time. Additionally, he denied ever having any kind of sexual contact with her whatsoever. Thomas admitted, however, to having sexual intercourse with Toni.

Toni testified in connection with the first rape incident that Thomas did not put his finger in Phyllis' vagina but only touched her breasts. She admitted, however, telling the prosecutor otherwise just two days earlier. Additionally, Toni acknowledged making sexual advances toward the defendant and having sexual intercourse with him.

The issues on appeal will be separately stated and so treated.

I WHETHER EVIDENCE OF APPELLANT'S 'OTHER (SEXUAL) ACTS' WAS ADMISSIBLE?

Over defense counsel's objection, the trial court admitted evidence that placed the appellant in the family home on the day the first alleged rape took place. This evidence showed that Thomas and Toni Severson engaged in two separate sexual encounters while Phyllis was present or nearby. The digital rape of Phyllis allegedly occurred during the interval between Thomas and Toni's two sexual encounters. Thus, there can be no dispute that this evidence was relevant because it tended to connect Thomas with the commission of the first rape.

A trial court has within its power the ability to admit evidence of other crimes, wrongs, or acts, so long as the evidence is relevant. State v. Means, 363 N.W.2d 565, 568 (S.D.1985). Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value. State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982). If the trial court determines that the evidence is relevant, it must then decide whether the probative value of the evidence substantially outweighs its prejudicial effect in compliance with SDCL 19-12-3. If, although relevant, the court decides its admission will produce unfair prejudice to the defendant, it cannot be admitted. State v. Means, supra. The delicate balancing process is within the trial court's sound discretion. Our standard of review is whether the trial court has abused its discretion. State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983).

Using the foregoing principles as guidelines, we initially examine whether the evidence at issue herein was admissible under the statutory exceptions codified in SDCL 19-12-5.

Generally, evidence of crimes or acts other than the ones with which a defendant is charged are inadmissible. The general rule and its exceptions are set forth in 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.

Here, the trial court had the discretion to admit evidence of Thomas' sexual activity with Toni if the evidence fell within one of the enumerated exceptions and was not unduly prejudicial. Thomas argues that admission of the "other acts" evidence was not relevant to any of the foregoing statutory exceptions. Moreover, Thomas contends that this evidence unfairly prejudiced him in the eyes of the jury. He urges that any probative value gained from the evidence was far outweighed by its inflammatory nature which served to characterize him as a "bad man", regardless of his guilt or innocence.

We disagree. Thomas put his identity in issue when he denied the charges, and tried to establish an alibi by stating that he was out of town on truck driving trips when the incidents occurred. Indeed, he denied ever having any sexual contact with Phyllis whatsoever. It follows, therefore, that the evidence served the purpose of proving the appellant's identity.

Our ruling herein is supported by substantial authority from other jurisdictions. Thus, in Sanford v. State, 76 Wis.2d 72, 250 N.W.2d 348 (1977), the defendant appealed his conviction for rape. The Wisconsin Supreme Court stated that since the defense here was alibi, the sole issue at the time of trial was identity, i.e., whether this defendant committed the rape against the complaining witness. In affirming the trial court, therefore, the court held that a prior act of sexual perversion against another person was admissible on the issue of identity only. Similarly, in People v. Williams, 115 Cal.App.3d 446, 171 Cal.Rptr. 401, 404 (1981), the defendant was convicted of numerous sexual and related crimes against four female victims. He denied committing any of the charged crimes. The trial court admitted evidence of two uncharged, but similar sexual offenses that the defendant allegedly committed five years earlier. In affirming the trial court, the court held that, "evidence of other sex offenses having distinctive, similar characteristics to those charged is generally admissible on the issue of defendant's identity if such offenses are not too remote in time, are sufficiently similar to the offense charged, and are committed upon persons similar to the prosecuting witness." Thereafter the court found that the similarities between the prior and charged offenses were striking, and thus, highly probative on the issue of defendant's identity.

The defendant in State v. Freeman, 303 N.C. 299, 278 S.E.2d 207, 209 (1981), appealed his conviction for first-degree rape, sexual offense and first-degree burglary. Not unlike Thomas in the instant action, the defendant in Freeman denied the charges, and tried to establish an alibi through several witnesses. The trial court admitted evidence of defendant's prior sexual misconduct with another person who testified at trial. In affirming the trial court's admission of this testimony as substantive evidence of defendant's guilt, the North Carolina Supreme Court stated that the defendant's identification was the principal issue, because although the complaining witness positively identified the defendant, his evidence of alibi made the question of whether defendant was, indeed, the perpetrator the "very heart...