APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE JEFF W. DAVIS Judge.
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON AUGUST 24, 2009
[¶1.] James Big Crow was charged with two counts of incestuous sexual contact involving his niece. After a hearing, the circuit court allowed admission of acts of incestuous sexual contact involving two other nieces. The court admitted the other acts evidence to prove a common plan, design or scheme under SDCL 19-12-5 (Rule 404(b)). The jury convicted and Big Crow appeals.
Facts and Procedural History
[¶2.] Big Crow was charged with incestuous sexual contact with his niece, D.P., in violation of SDCL 22-22-19.1 (2004).*fn1 According to the State's evidence, the abuse occurred when D.P. was approximately eight or nine years-old. At that time, D.P. was doing tasks for Big Crow in his home. On the first occasion, D.P. was lying on a couch watching a movie. D.P testified that while she was watching the movie, Big Crow came into the room naked and began playing a pornographic movie. Big Crow then called D.P.'s name. She testified that she was uncomfortable because he was naked, so she pretended to sleep. Big Crow, however, continued to call D.P.'s name and she answered. Big Crow asked D.P. if she liked the pornographic movie, and she shrugged her shoulders. She then went to the bathroom to be by herself. While on her way to the bathroom, Big Crow asked her to go into the kitchen and get a tape measure so she could measure his penis. She obeyed. Big Crow then had D.P. touch his erect penis.
[¶3.] D.P testified that about a week later, she was at Big Crow's house doing dishes when she laid down on the couch to watch television. Big Crow again came out naked and asked her to give him a "big hug," which she did. Big Crow then said he was going to take a shower. While in the bathroom, he told her to come in. D.P. went into the bathroom and Big Crow said: "Feel this. Feel this." Big Crow took her hand, placed it on his erect penis, and moved her hand back and forth. D.P. testified that the stroking lasted about thirty seconds until she pulled her hand away. Big Crow subsequently went to his room and began calling D.P.'s name again, telling her to come to his room. She complied and saw him lying on the bed naked. Big Crow asked for a hug, and D.P. hugged him for a short time until he grabbed her and sat her on top of him. She testified that she was wearing clothes, that she could tell his penis was erect, and that Big Crow began "moving up and down."
[¶4.] At trial, Big Crow denied D.P.'s allegations. Rapid City Police Department Detective Steven Neavill had interviewed Big Crow. Neavill testified Big Crow admitted that on one occasion he was in his bed naked and he asked D.P. to give him a hug. Big Crow, however, claimed that he had covers on top of him, and he denied that he ever had D.P. touch his penis.
[¶5.] Over Big Crow's objection, the State presented evidence from two other alleged victims. M.H., another niece of Big Crow's, testified that when she was ten or eleven, she was asleep on the floor at her mother's home when Big Crow woke her and placed her hand on top of his pants and started rubbing her hand over his erect penis. Big Crow denied M.H.'s accusations.
[¶6.] The other alleged victim was B.M., Big Crow's great-niece. B.M. testified that when she was fourteen, she was sleeping at her grandmother's home when she woke to find Big Crow feeling her between her legs on top of her clothes. According to B.M., Big Crow also put her hand on his bare, erect penis. Big Crow testified that he did not have his hand between her legs, but that he may have placed his hands on her chest or stomach.
[¶7.] The circuit court allowed M.H.'s and B.M.'s testimony under SDCL 19-12-5 (Rule 404(b)), finding the evidence relevant and not substantially more prejudicial than probative. With respect to relevance, the court found that Big Crow had a "scheme, intent, design, [ ] to single out young females for which he did exert some influence as their [respected] elder and family member. So the type of the actions that were allegedly performed and the age range of the young ladies at the time involved are consistent with those sorts of patterns." With respect to prejudice, the court found: "This type of evidence is always prejudicial, there is no question about it. That's why the balancing test is there to determine whether it's more probative to allow it in." The court continued, "I do feel it meets the requirements . . . as to Mr. Big Crow's actions at the time in question." We review these rulings under the abuse of discretion standard. State v. Chernotik, 2003 SD 129, ¶28, 674 NW2d 264, 274. An abuse of discretion is "discretion exercised to an end or purpose not justified by and clearly against, reason and evidence." State v. Machmuller, 2001 SD 82, ¶9, 630 NW2d 495, 498.
[¶8.] The admission of other acts evidence is governed by SDCL 19-12-5 (Rule 404(b)), 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.
In interpreting the "plan" exception in the statute, this Court has followed those authorities allowing other acts not only where the charged and uncharged acts are part of a single, continuing conception or plot, but also where the uncharged misconduct is sufficiently similar to support the inference that they are manifestations of a common plan, design or scheme to sexually abuse different victims. See State v. Ondricek, 535 NW2d 872, 875 (SD 1995) (citing State v. Champagne, 422 NW2d 840, 842 (SD 1988)). A "'common plan, design or scheme' refers to a larger continuing plan, scheme or conspiracy of which the present crime charged at trial is only a part[.]" Id. (quoting Champagne, 422 NW2d at 842). Although we acknowledged that "'common plan, design or scheme' . . . is often relevant to show motive, intent, knowledge or identity," we also acknowledged "[b]y showing that the earlier schemes bore a singular strong ...