State v. Watson, 12206

• Decision Date: 06 April 1978
• Docket Number: No. 12206,12206
• Citation: 264 N.W.2d 519
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Michael WATSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 519

264 N.W.2d 519

STATE of South Dakota, Plaintiff and Respondent, v. Michael WATSON, Defendant and Appellant.

No. 12206.

Supreme Court of South Dakota.

Argued Feb. 14, 1978.

Decided April 6, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Sidney B. Strange of Strange, Breit & Strange, Sioux Falls, for defendant and appellant.

WOLLMAN, Justice.

Defendant appeals from the judgment of conviction entered upon the verdict of a jury which found him guilty on a charge of rape. We reverse and remand for new trial.

The information filed by the state charged that on July 11, 1976, defendant had accomplished an act of sexual penetration with a female person, not his wife, who was then less than sixteen years of age. As then in effect, SDCL 22-22-1 provided:

"Rape is an act of sexual penetration accomplished with any person under any one or more of the following circumstances:

(2) Where the victim is incapable, because of physical or mental incapacity, of giving consent to such act; a person sixteen years of age or less shall be presumed incapable of consenting to such acts; . . ."

The trial court gave the following instructions to the jury:

"Instruction No. 9:

The essential elements of the offense of rape as charged in the Information which the State must prove beyond a reasonable doubt, are:

1. That the defendant at the time and place alleged in the Information accomplished an act of sexual intercourse with Holly Bryant, a female person, not the wife of the defendant, who then was under the age of sixteen years."

"Instruction No. 10:

In legal contemplation, a female person under the age of 16 years and not the wife of the perpetrator is incapable of consenting to an act of sexual intercourse. Therefore, if the alleged act of sexual intercourse has been proved beyond a reasonable doubt, the defendant has no defense in the fact, if it be a fact, that the female person consented to the act."

In State v. Heisinger, S.D., 252 N.W.2d 899, which was decided after the date of the trial in the instant case, we held that the presumption contained within SDCL 22-22-1(2) is not conclusive and that it was reversible error to instruct the jury to the contrary. Although the state argues that our decision in the Heisinger case does not mandate reversal in the instant case because defendant did not introduce any evidence tending to show that the victim was capable of consenting to the act of sexual penetration, we conclude that this argument is without merit. It is true that the victim was only thirteen years of age on the date of the alleged offense, but the jury might very well have concluded from her appearance and demeanor on the witness stand, together with the testimony concerning the circumstances of the alleged offense, that she was in fact capable of consenting to the act of sexual penetration.

Defendant made a pretrial motion that the victim be ordered to undergo a psychiatric examination and that he himself be medically examined at state expense to determine whether he was, as he alleged, impotent and thus physically incapable of...