Considered on Briefs January 11, 2016.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA. THE HONORABLE RICHARD A. SOMMERS, Judge.
MARTY J. JACKLEY, Attorney General, GRANT FLYNN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
ADAM ALTMAN, Aberdeen, South Dakota, Attorney for defendant and appellant.
WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.
[¶1] A jury convicted defendant of fourth-degree rape in violation of SDCL 22-22-1(5). Defendant appeals. He asserts that his trial counsel was ineffective for her failure to understand the rules of evidence, namely SDCL 19-19-412. Defendant also claims the circuit court erred when it concluded that defendant was not entitled to a Rule 412 hearing because defendant did not file a motion for a hearing 14 days before trial. Defendant contends the circuit court abused its discretion when it restricted his cross-examination of the victim to questions related to the victim's sexual encounters with defendant. Lastly, defendant claims the
circuit court improperly considered his juvenile psychological records when it sentenced defendant to fifteen years in the South Dakota State Penitentiary. We affirm.
[¶2] In October 2013, A.A. invited Joseph Allen Golliher-Weyer (Weyer) to watch television at a mutual friend's house in Aberdeen, South Dakota. After watching television with A.A. for some time, Weyer left the living room to go to a bedroom. It is disputed whether Weyer went to the bedroom alone or with A.A. Weyer claimed he entered the bedroom alone to sleep. One witness claimed A.A. and Weyer entered the bedroom together. Regardless, A.A. later alleged that while in the bedroom she and Weyer had sexual intercourse. At that time, Weyer was 18 years old and A.A. was 14 years old. Under SDCL 22-22-1(5) an act of sexual penetration is rape " [i]f the victim is thirteen years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim." A warrant issued for Weyer's arrest on January 14, 2014, for his violation of SDCL 22-22-1(5). Weyer denied that he had sexual intercourse with A.A. and requested a jury trial.
[¶3] During the jury trial, Weyer's counsel sought to introduce evidence that A.A. had made prior false allegations of sexual intercourse with other individuals. The State objected during defense counsel's opening statement. The court held a discussion outside the presence of the jury. The State argued that SDCL 19-19-412 precludes the admission of evidence related to A.A.'s prior sexual encounters and that the evidence does not meet the statutory exceptions. The State also argued that Weyer cannot introduce evidence of A.A.'s prior sexual history because he failed to request a hearing to determine admissibility 14 days prior to trial. Counsel for Weyer responded that she did not need to request a hearing because she sought to admit the evidence to impeach A.A., not to prove A.A.'s sexual predisposition.
[¶4] The circuit court granted the State's objection. It ruled " that it appears that based on this case law there should have been some advanced notice given if we're going to talk about her sexual history." According to the court, " both the federal rule and this case law talk about the opportunity to have that hearing in advance of trial" for the court " to conduct an in camera hearing and make a ruling on [it] after the evidence of the other allegations would be presented, and the victim would have a right to attend and be heard." Because Weyer did not request a hearing 14 days prior to trial, the court held that " based on that case and federal rule that you don't have that opportunity to have that hearing at this point in time, so that testimony would not be admissible[.]"
[¶5] A.A. testified at trial. During cross-examination, A.A. mentioned that she listed the names of " everybody that I did" and corresponding dates in a school agenda. Defense counsel asked A.A. about these other individuals, and the State objected. The circuit court instructed defense counsel to limit the questions to entries in the agenda implicating Weyer. Other witnesses testified at trial, and the court prohibited Weyer from ...