State v. Werner, 17434

• Citation: 482 N.W.2d 286
• Decision Date: 13 April 1992
• Docket Number: No. 17434,17434
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Edward J. WERNER, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 286

482 N.W.2d 286

STATE of South Dakota, Plaintiff and Appellee, v. Edward J. WERNER, Defendant and Appellant.

No. 17434.

Supreme Court of South Dakota.

Argued Oct. 23, 1991.

Decided March 4, 1992.

Rehearing Denied April 13, 1992.

Mark W. Barnett, Atty. Gen., Ronald D. Campbell, Karen E. Cremer, Asst. Attys. Gen., Pierre, for plaintiff and appellee.

James C. Roby of Green, Schulz, Roby & Oviatt, Watertown, for defendant and appellant.

MILLER, Chief Justice.

Edward J. Werner, a Lutheran minister, appeals his conviction of five counts of sexual contact and two counts of attempted sexual contact with a child under the age of sixteen. We affirm.

FACTS

Werner became the pastor for St. Peter's Lutheran Church in Goodwin, South Dakota, in 1963. In 1967, he became pastor of several combined churches, principally serving Our Savior's Lutheran Church in South Shore, South Dakota, and St. Peter's Lutheran Church in Goodwin.

As pastor, Werner was responsible for conducting Sunday services and supervising the programs at each church. He taught confirmation classes on Saturday mornings in South Shore for seventh and eighth grade children of the two parishes.

On April 16, 1990, a complaint was filed charging Werner with six counts of sexual contact with a child under the age of 16 (a violation of SDCL 22-22-7) and two counts of attempted sexual contact with a child under the age of sixteen (a violation of SDCL 22-22-7 and 22-4-1). An amended complaint dated May 22, 1990, added an additional charge of sexual contact with a child under the age of sixteen. All of the complaints alleged the sexual contact between Werner and the young female parishioners occurred during church-related activities during the period from October 1987 to March of 1990.

These five young girls, all members of Werner's parish, claimed Werner had touched or attempted to touch their breasts, lower backs and buttocks. This contact was initiated at different times and at different locations, including: the hallway of the church, during a Christmas party at the church, during a church swimming party in Watertown, in the confirmation classroom, and in the fellowship hall of the church. At the time the contact was initiated, the girls ranged in age from eight to fourteen years old.

State notified Werner on three separate occasions of its intention to use testimony from witnesses claiming that Werner had previous sexual contact with them. State intended to use this testimony, pursuant to SDCL 19-12-5, to show proof of Werner's intent, motive, opportunity, common scheme or plan, and absence of mistake or accident in his commission or attempts to commit acts of sexual contact.

The other acts witnesses also were members of Werner's parish when they were young women. The testimony of these grown women described encounters with Werner where he fondled their breasts, and kissed and embraced them. The testimony elicited from these women indicated that Werner had sexual contact with young women of his parish for every year from 1962 to 1990 with the exception of 1983 and 1986.

After receiving the first notice, Werner filed a motion in limine seeking to prohibit the admission of this other acts testimony because it was not relevant and its probative value was substantially outweighed by its prejudicial effect.

On July 10, 1990, a hearing was held on the motion in limine. The trial court denied Werner's motion and set forth its decision and findings of fact and conclusions of law on August 27, 1990. In its conclusions of law, the trial court specified each reason other acts testimony could be admitted. The court concluded that State presented clear and convincing evidence that this testimony was relevant to show proof of opportunity, common scheme or plan, motive, intent for sexual gratification, absence of mistake, or accident.

Furthermore, the trial court addressed the issue of remoteness and concluded that when considered with other factors such as reliability, necessity, nature of the offenses, and similarity of the occasions and locations, the other acts were not remote in time.

Finally, the trial court concluded that the other acts testimony would not confuse the jury, and had probative value as evidence of the crimes charged. The court performed the appropriate balancing test and determined that the probative value was not substantially outweighed by the danger of unfair prejudice.

Thereafter, the State made a motion to admit the testimony of another other acts witness. On October 17, 1990, pursuant to this motion, a hearing was held. The trial court granted State's motion and again filed findings of fact and conclusions of law.

At the commencement of the trial, State made a motion to admit the testimony of one more witness. This witness claimed that she had also been touched by Werner when she was a member of his parish. The trial court granted State's motion.

At trial, Werner offered expert testimony on the generalized theory of human memory. The trial court did not allow this testimony. However, the expert was permitted to testify as to the effect that investigative techniques have on memory. The jury convicted Werner of five counts of sexual contact and two counts of attempted sexual contact with a child under the age of sixteen. He was acquitted of two counts of sexual contact. Thereafter, Werner was sentenced to the South Dakota State Penitentiary.

ISSUES

I.

WHETHER THE TRIAL COURT IMPROPERLY ADMITTED TESTIMONY OF OTHER ACTS WITNESSES TO SHOW PROOF OF OPPORTUNITY, COMMON SCHEME OR PLAN, MOTIVE, INTENT AND LACK OF MISTAKE OR ACCIDENT.

On appeal, Werner contends that the trial court abused its discretion in admitting the other acts testimony. Specifically, Werner claims that the trial court improperly admitted the evidence because it failed to specify a particular exception to SDCL 19-12-5 (Fed.R.Evid. 404(b)) and because the other acts testimony was too remote. Finally, Werner claims it was improper to allow the other acts testimony to be presented before State established the basic elements of the crime.

The trial court's decision to admit other act evidence will not be overruled absent an abuse of discretion. State v. Chapin, 460 N.W.2d 420 (S.D.1990). The admissibility of other acts testimony is governed by SDCL 19-12-5, which is almost identical to Federal Rule of Evidence 404(b):

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.

Recently, in State v. Basker, we discussed the two-step approach which must be followed when the trial court is ruling on the admissibility of other acts testimony:

(1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case, and

(2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect.

468 N.W.2d 413, 415 (S.D.1991), State v. Dickey, 459 N.W.2d 445 (S.D.1990); State

v. Klein, 444 N.W.2d 16 (S.D.1989); State v. Champagne, 422 N.W.2d 840 (S.D.1988).

The first inquiry pertains to the factual relevancy of the evidence, since evidence of other bad acts is inadmissible to prove bad character. For example, "whether the proffered evidence has any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence." Basker, 468 N.W.2d at 416. The second inquiry concerns legal relevancy: "Whether the probative value of the proffered evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id.; SDCL 19-12-3 ¹ (Fed.R.Evid. 403).

Furthermore, the trial court must identify the exception:

In each case in which bad act evidence is sought to be admitted, the trial court should identify the applicable exception and perform an analysis of the facts and nature of the prior bad acts.

Chapin, 460 N.W.2d at 422. The list of exclusions in the statute is not exhaustive as evidenced by the language "such as." "[T]he statute lists the most usual instances in which 'other acts' will be admissible as long as proof of the intended purpose is relevant to some material issue in the case." Champagne, 422 N.W.2d at 842; State v. Dokken, 385 N.W.2d 493 (S.D.1986).

The trial court held three evidentiary hearings on the other acts evidence. State filed interviews of seventeen witnesses describing Werner's sexual contact with them. At trial, eleven of these women were subpoenaed to testify. All of the women testifying at trial were, at various times, members of Werner's parish. Except for two women, the sexual contact always occurred during a church-related activity. Both women who claimed the contact did not take place at church-related activities stated the contact occurred when Werner drove them home after babysitting. One woman testified that in addition to the sexual contact initiated during church activities, that Werner, who was an emergency medical technician, fondled her while she was being transported in an ambulance. These women were from 12 to 16 years old when Werner first initiated contact with them.

The trial court examined the factual relevancy of the proffered testimony and concluded that this testimony was factually relevant to the issues on trial for the purpose of proving opportunity, common scheme or plan, motive, intent, and absence of mistake or accident.

Once factual relevancy is determined, the trial court must perform a balancing test to determine whether the prejudicial effect of the evidence substantially outweighs its probative value. Werner claims the other acts testimony was too remote from the...