APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA THE HONORABLE JOHN W. BASTIAN Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON JANUARY 9, 2012
[¶1.] A jury found Leonard Alan Toohey guilty of first degree rape of a child.
On appeal, he asserts that the child victim was not available for cross-examination as required under the Confrontation Clause, that the circuit court abused its discretion when it admitted evidence of other acts, and that there was insufficient evidence to support proof of penetration.
[¶2.] On June 9, 2010, C.M. and her daughter, K.M. (age ten), went to the post office. K.M. decided to wait in the car while her mother went inside. In the post office, C.M. ran into Toohey. He and his wife had been friends of C.M.'s family for years, but had not been spending as much time together recently. C.M. and Toohey exchanged small talk. Upon returning to her car, K.M. asked her mom why she did not like Toohey anymore. C.M. explained that she did not like some of the things Toohey, a military veteran, said in front of the children about the war. K.M. said, "Mom, I hate him." C.M. was shocked by her daughter's statement and questioned her. K.M. began crying. She asked her mother, "Do you remember when we went fishing?" C.M. responded, "Yeah." K.M. said, "Remember when me and [Toohey] went to look for something for the fish?" C.M. remembered that Toohey and K.M. had gone to an abandoned farmhouse to look for some rope to string fish. K.M. said, "He kissed me and called me his secret girlfriend." C.M. said, "Is that it?" K.M. said, "No." C.M. asked, "Well, what else happened?" K.M. replied, "He had me pull down my shorts and my panties and he touched me down there."
[¶3.] C.M. called the sheriff's office, and within a few days, K.M. was taken to the Child Advocacy Center in Rapid City. There, Hollie Strand, a forensic interviewer, conducted a videotaped interview of K.M. K.M. described Toohey's actions during the fishing trip much the same as she did to her mother. She would not or could not give a name to her pudendum, but she agreed with Strand that it could be called her "private." On a diagram of a child, she pointed at the pudendum and said that Toohey touched her there with his "finger." When asked what it felt like when Toohey touched her there, K.M. said "it hurt." Strand asked, "do you know how on our privates on us girls we have that line right there [pointing to the pudendal area on the diagram], did [Toohey's] hand do something with that line?" When the child did not respond, Strand asked again, "[D]id [Toohey's] hand do something with that line?" K.M. then said, "[H]e put his finger there." Strand asked, "After [Toohey] bothered your private, did you notice anything when you went potty?" K.M. replied, "It kind of hurt."
[¶4.] K.M. also described a later incident to Strand that happened when
Toohey came to her family's home to help fix a car. K.M. asked Toohey to come into a room to see her cat. In the room, Toohey kissed her on her mouth and told her "not to tell anybody," saying she was his "secret girlfriend."
[¶5.] Butte County Sherriff Fred Lamphere interviewed Toohey. The audio of the interview was recorded and played for the jury. Toohey admitted to fishing with K.M.'s family and to being alone with K.M. in a house together. He also admitted to being at K.M.'s residence to help work on a car. But he denied that he touched K.M., kissed her, or called her his secret girlfriend during either time he was with her.
[¶6.] Toohey was indicted on one count of first degree rape in violation of SDCL 22-22-1(1). The date of the offense was alleged to be "the spring or summer of 2007," three years before K.M. first reported the incident to her mother. The State asked the court to allow admission of Toohey's act of kissing K.M. at K.M.'s house on the grounds that the kiss was relevant to prove motive, intent, opportunity, and lack of mistake or accident. See SDCL 19-12-5 (Rule 404(b)). Toohey responded that this subsequent act was insufficiently connected to the rape charge and was not relevant to any material fact at issue. He further asserted that any probative value of this evidence was substantially outweighed by the danger of unfair prejudice. See SDCL 19-12-3 (Rule 403). The court found the subsequent act admissible to prove intent, opportunity, and absence of mistake or accident, and not unfairly prejudicial.
[¶7.] K.M. testified at trial. When the State asked her specifically what Toohey did to her, she often failed to respond, as can be seen in the following excerpts from her direct examination: State: Can you kind of begin from where you start to feel uncomfortable? Or why you felt uncomfortable?
K.M.: Because he had me pull down my shorts and everything.
State: Okay. Where were you at when that happened?
State: By the table. Okay. You said he had - - Did he tell you to do that?
State: Okay. And after he told you to pull down your shorts, what happened?
State: Okay. So you're standing by the table and he tells you to pull your shorts down, and then what happened?
State: Okay. And then what happened?
K.M.: He had me pull down my underwear. State: Okay. And then did you do that, too?
State: Okay. And after he did that, what did you do?
K.M.: He put me on the table.
State: Okay. Were you sitting up or laying down?
K.M.: At first I was sitting up.
State: Okay. Then what happened?
K.M.: He had me lay down. . .
State: When you were laying down, were your shorts up or down?
State: And your underwear?
K.M.: (Nodding head.) State: Down?
K.M.: (Nodding head.) Yes.
State: And where was [Toohey] when you were laying down?
State: Okay. Do you remember if he said anything to you?