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State of South Dakota, Plaintiff and Appellee v. Dennis Most

June 6, 2012

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
DENNIS MOST, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA THE HONORABLE STEVEN R. JENSEN Judge

The opinion of the court was delivered by: Konenkamp, Justice

ARGUED ON MARCH 21, 2012

[¶1.] Dennis Most, Sr. was convicted in a bench trial of four counts of sexual contact with a child. On appeal, he contends that the trial court erred in denying his motion to exclude prior acts evidence and his motion to offer the victim's prior allegation of sexual assault. He also argues that there was insufficient evidence to sustain his convictions.

Background

[¶2.] K.D.'s paternal grandmother, Gail Ford, and Most, Ford's boyfriend, lived together in North Sioux City, South Dakota. When K.D. was three or four years old, her mother took a new job that required working on the weekends, and K.D. began staying at Ford's home. Eventually, she would spend the night and often entire weekends with Ford and Most. At the time, K.D. was the only grandchild. Ford owned a barber shop and worked Saturdays. K.D. would either stay with Ford at the shop or go home with Most. In addition, if Ford had errands to run, K.D. would sometimes come along, while other times she would stay at home with Most. K.D. considered Most her grandfather.

[¶3.] In March 2009, shortly after Ford passed away, K.D. told her mother that Most had sexually molested her during the time she was four-to-eleven years old. K.D. was seventeen at the time. She came forward at that time because she was no longer fearful that the disclosure would hurt her grandmother. K.D.'s mother reported the allegations to the authorities and an investigation ensued. Amy Scarmon, a forensic interviewer with the Child Advocacy Center, interviewed K.D. about the allegations.

[¶4.] Law enforcement officers interviewed Most. The officers observed that Most was not shocked or angry by the allegations. He was very talkative, even initiating a second interview to clarify certain points and tell his side of the story. He denied the allegations, but admitted that he tickled and wrestled around with K.D. He said that he may have touched K.D.'s breasts, inner thighs, and vaginal region during these times, and that some of the touching may have been inappropriate, but that all the touching was accidental and unintentional. Most also told the officers that obviously something happened that probably should not have, and acknowledged K.D.'s honesty. The officers assisted K.D. in recording three phone conversations with Most. During these calls, she confronted him with her allegations, but Most neither admitted nor denied them.

[¶5.] K.D. identified four incidents of sexual molestation. She explained that Most molested her more than four times, but that she was only able to establish approximate time frames for the four separate incidents. The first incident occurred between December 1995 and January 1996, when K.D. was four years old. She isolated this time frame because the molestation occurred after Christmas but before she and her mother moved into a new home. During that incident, Most told K.D. that he had something for her in his bedroom. When she went into the bedroom, Most began tickling her and removed her clothing. According to K.D., Most asked her if she wanted to have sex, digitally penetrated her vagina, and then resumed tickling her. K.D. said that Most stopped when Ford came home. Most told K.D. to go out into the living room and threatened that if she told Ford about the incident, he would hurt Ford.

[¶6.] The second incident occurred during the summer months of 1999.*fn1 Most again told K.D. that he had something for her in his bedroom. When K.D. went into the bedroom, Most began tickling her and removed her clothing. According to K.D., Most digitally penetrated her vagina, asked her if she liked it, and then resumed tickling her.

[¶7.] The third incident occurred in October 2001, just before K.D.'s tenth birthday. She said that Most duct taped her, put her in a blue Neon car, drove behind the Gateway building, and digitally penetrated her vagina.*fn2 Most asked K.D. if she liked what he was doing. She asked Most to stop. He then removed the duct tape and acted as though nothing had happened.

[¶8.] The fourth incident occurred in October 2003, when K.D. was eleven years old.*fn3 K.D. was in Ford's and Most's bedroom when Most came in and asked her what she was doing. She replied that she was simply looking around. Most began tickling her. She became nervous and did not know what to do. Most laid her on the bed, removed her clothing, and digitally penetrated her vagina. She finally got Most to stop by telling him that she needed to use the bathroom. After these incidents, Most gave her money, candy, or gifts.

[¶9.] During the investigation, officers discovered that two other family members claimed that Most molested them as young girls. L.S., Most's stepdaughter, said that Most molested her between the ages of four and eleven. Most would take L.S. to his bedroom, tickle her, and touch her breasts and genitals. He often gave her gifts or money after the acts. In addition, when L.S. was about fifteen years old, she learned she was pregnant, ran away from home, and moved in with Most. During this time, Most continued to sexually abuse her. In June 2009, immediately after being interviewed by law enforcement officers about K.D.'s allegations, Most unexpectedly arrived at L.S.'s home. He told L.S. about K.D.'s allegations, and L.S. then confronted Most about her abuse. Most admitted to sexually molesting L.S. When she asked why he did it, Most explained that he loved her and thought it made her feel good.

[¶10.] Most and L.S. also discussed Most's prior abuse of S.M., Most's niece. Starting when she was five or six years old, Most would take S.M. to a bedroom or in a car to a park. He would touch her genitals and masturbate in front of her. The abuse stopped when S.M.'s mother discovered that S.M.'s pants were on backwards after spending time alone with Most. Most also gave S.M. money to buy candy after the acts. L.S. and S.M. confronted Most about the sexual abuse while secretly tape-recording the conversation for law enforcement investigators. He admitted to sexually molesting both women. When L.S. and S.M. asked about K.D.'s sexual abuse, however, Most denied the allegations.

[ΒΆ11.] The State charged Most with four counts of first-degree rape under SDCL 22-22-1(1) and, alternatively, with four counts of sexual contact with a child under the age of sixteen under ...


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