State v. Weisenstein

• Decision Date: 29 November 1984
• Docket Number: No. 14588,14588
• Citation: 367 N.W.2d 201
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kurtis Lee WEISENSTEIN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 201

367 N.W.2d 201

STATE of South Dakota, Plaintiff and Appellee, v. Kurtis Lee WEISENSTEIN, Defendant and Appellant.

No. 14588.

Supreme Court of South Dakota.

Considered on Briefs Nov. 29, 1984.

Decided May 1, 1985.

Robert B. Vrooman, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

John C. Wiles of Osheim, Fox, Bartron & Wiles, Watertown, for defendant and appellant.

MORGAN, Justice.

This action involves a violation of SDCL 22-22-7, which proscribes sexual contact with children under fifteen. ¹ Kurtis Lee Weisenstein (Kurtis) was arraigned under a grand jury indictment and pled "not guilty." The case was tried before a jury and Kurtis was found guilty as charged. A mitigation, aggravation, and sentencing hearing was held and Kurtis was sentenced to eight years' imprisonment in the South Dakota State Penitentiary with credit for two hundred days served. Kurtis appeals from the judgment of conviction and the sentence. We affirm.

Kurtis attended a small party given by the victim's mother in her trailer home. The five-year-old victim, his three-year-old sister, his mother, and the mother's roommate lived in the trailer house. The party apparently moved to another trailer house and then to a local bar. The roommate stayed behind to babysit the children, who were asleep in the back bedroom. Sometime around 11:30 p.m., Kurtis returned to the first trailer house and sat down at the kitchen table. Eventually, he said that he was tired and asked the roommate if he could rest in the bedroom. The roommate gave her consent and Kurtis left the kitchen and went into the bedroom area of the trailer house.

The trailer house had two bedrooms. The mother's bedroom was just off the living room area and provided the only access to the children's bedroom at the back of the trailer. The roommate assumed that Kurtis intended to rest in the mother's unoccupied bedroom. She eventually discovered, however, that Kurtis was sleeping in the children's bedroom. She then left the trailer and returned five minutes later with the mother and two of the mother's friends. Upon hearing that Kurtis was in bed with her children, the mother asked her friends to wake him up and send him home. Kurtis came out of the bedroom and left the trailer after he was awakened.

Later that morning, the victim told his mother that the night before Kurtis had made him touch himself on the penis and had made the victim's three-year-old sister touch the victim's penis. The victim also told his mother that Kurtis had placed the victim's penis in his mouth.

The incident was reported to the police that morning. A grand jury indicted Kurtis and he was convicted by a jury of sexual contact with a child under fifteen.

Kurtis raises four issues on appeal: (I) Whether the trial court erred (1) when it determined that the victim, who was five years old at the time of the incident and six at time of trial, was competent to testify at trial, and (2) when it admitted the victim's testimony in response to leading questions; (II) whether Kurtis' motion to dismiss based on the absence of an in-court identification of him as the perpetrator was wrongfully denied; (III) whether the trial court's refusal to give Kurtis' proposed jury instructions 9, 13, and 18 constituted reversible error; and (IV) whether the eight-year sentence imposed by the trial court was excessive and constituted cruel and unusual punishment in violation of the South Dakota and United States Constitutions.

The first issue, whether the trial court erred in its determination that the victim was competent to testify at trial, requires consideration of SDCL 19-9-7 (Rule 104(a)) which provides in pertinent part that "[p]reliminary questions concerning the qualification of a person to be a witness ... shall be determined by the court[.]"

As long ago as 1895, this court upheld the general rule that determination of a witness' competence "is left in the first instance to the discretionary judgment of the trial court, after informing itself by proper examination." State v. Reddington, 7 S.D. 368, 377, 64 N.W. 170, 172-73 (1895). In State v. Phipps, 318 N.W.2d 128, 130-31 (S.D.1982), we summarized the more recent cases as follows:

"There is no arbitrary age which prohibits a child from testifying." State v. Lutheran, 76 S.D. 561, 564, 82 N.W.2d 507, 509 (1957). In order to be a competent witness, a child must have "sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility ...." State v. Leonard, 60 S.D. 144, 145, 244 N.W. 88-89 (1932). The determination of the witness' competency is within the discretionary power of the trial judge and may be reversed only upon a showing of abuse of discretion. Moser v. Moser, 82 S.D. 149, 143 N.W.2d 369 (1966).

The tests set out in Leonard, supra, are joint, not several, and the trial court must be satisfied that all four requirements are met.

Kurtis contends that the victim did not meet the South Dakota test established in Leonard, supra. Kurtis claims the victim (1) only responded to leading questions, (2) provided no narrative of the events, (3) could not recall general details of events, (4) was not verbally responsive to most of the trial court's questions, and (5) failed to perceive the serious purpose for which the questions were asked.

In an interview conducted apart from the jury, the victim communicated to the trial judge that (1) he remembered the night Kurtis entered his bedroom, (2) that he knew Kurtis, (3) that he knew the difference between telling the truth and telling a lie, and (4) that he would tell the truth. The trial judge recognized the victim's reluctance to communicate verbally but went on to state at the end of the interview that:

The Court is satisfied that he (the victim) does have a good capacity to communicate, and he understands the questions that the Court has put to him. He may have a hesitancy to answer, but he does make answers that are understandable for a youngster of his age. I do feel that he does have the capacity to know that he has to tell the truth ... I think that he does have a moral understanding that he does have to tell the truth, and that he does have the ability to observe and to recollect. I think that he would be competent to testify at the trial.

The trial judge's determination of the victim's capacity and competence to testify was based on the Leonard standard, and was the result of a searching preliminary examination apart from the jury as required by SDCL 19-9-9. See also State v. Southmayd, 37 S.D. 375, 158 N.W. 404 (1916).

Kurtis also contends as part of his first issue, that his attempts to examine the victim's competence were thwarted by the trial court's refusal to permit him to examine the victim and denial of his request to submit a written hypothetical fact pattern with eleven written questions as a test of the victim's ability to observe, recollect, communicate and express an understanding of moral distinctions. Kurtis also contends that the trial court's refusal to ask eighteen questions regarding the incident that defense counsel submitted was an abuse of discretion; but, he cites no authority to support his argument on this point.

SDCL 19-9-7 also provides: "In making its determination [the trial court] is not bound by the rules of evidence except those with respect to privileges." SDCL 19-9-7 is a verbatim adoption of Federal Rule of Evidence 104(a). In the Advisory Committee Notes, we find these pertinent comments: If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue. The rule provides that the rules of evidence in general do not apply to this process. Again, common practice calls for considering the testimony of a witness, particularly a child, in determining competency. Fed.R.Evid. 104(a) Advisory Committee Note.

Pursuant to SDCL 19-9-7, the trial court below decided on the questions it wanted to ask in order to test the victim's competence as a witness. Neither side was allowed to question the victim.

When reviewing the exercise of judicial discretion, the members of this court may not consider whether they would have made a similar ruling; rather, they must consider whether, in view of the law and the circumstances of the particular case, a judicial mind could reasonably have reached such a conclusion. Myron v. Coil, 82 S.D. 180, 143 N.W.2d 738 (1966); Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961). Control of the examination and determination of the victim/witness' competence were within the trial court's discretion and the judge who heard this case did not abuse his discretion.

Kurtis also complains that the State used leading questions in its direct examination of the victim. At the competency hearing, the trial judge ruled that he would permit leading questions only if attempts to elicit narrative responses failed. Kurtis contends that the State did not attempt to examine the victim without leading questions. The record reveals that the State elicited four brief narrative responses before asking a yes or no question and that the State asked no leading questions until the examination centered on the events surrounding the charge against Kurtis. At that point, the victim responded to several key questions with only a shake or nod of his head.

SDCL 19-14-20 states, in part: "Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony." (Emphasis added.) As we said in State v. Brown, 285 N.W.2d 843, 845 (S.D.1979),

[i]t is settled law that permitting the use of leading questions is within the discretion of the trial court. This is a broad discretion when the witness is a young person. The allowance of leading questions by the trial court will not be disturbed where it is not apparent that this discretion has been abused or shown to have resulted in...