Considered On Briefs February 13, 2017
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS
J. JACKLEY Attorney General CAROLINE SRSTKA Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
J. SUTTON of SUTTON LAW OFFICES, P.C. Watertown, South Dakota
Attorneys for defendant and appellant.
A jury convicted Joshua Spaniol of three counts of
first-degree rape and one count of sexual contact with a
child under sixteen years of age. Spaniol appeals, alleging
the circuit court erred by finding the child competent to
testify at trial. After the child testified on direct
examination, Spaniol contends the child became unavailable
because of her poor memory, depriving him of
cross-examination as required by the Confrontation Clause. He
further contends the circuit court erred by denying his
pretrial motion to suppress his own statements to law
enforcement and by giving Instruction 11 to the jury. We
In early October 2014, H.S. (Mother) noticed her
four-year-old daughter, A.S., had a brown vaginal discharge.
On October 6, Mother took A.S. to see Doctor Rebecca
Pengilly. Dr. Pengilly took a sample and sent it to a lab for
testing, expecting results in several days.
On October 7, Joshua Spaniol, Mother's husband and
A.S.'s father, told Mother that his penis was painful,
inflamed, and he had a discharge. Spaniol went to a clinic
and saw Doctor Daniel Reifenberger on October 8. Because
Spaniol reported that he was in a monogamous sexual
relationship, Dr. Reifenberger did not check him for sexually
transmitted diseases. Instead, he took a urine sample to
determine if Spaniol had a urinary tract infection. Pending
the test results, Dr. Reifenberger gave Spaniol a
prescription for Cipro, an antibiotic, to be taken twice a
day for ten days. The test results revealed that Spaniol did
not have a urinary tract infection, although some type of an
infection, sexually transmitted or otherwise, was present.
Spaniol later tested negative for gonorrhea but only after he
had taken 10 doses of Cipro in the days preceding the test.
Cipro is recognized as being potentially effective in
By October 9, A.S.'s discharge worsened, and Mother took
her to the emergency room at a local hospital. Medical staff
suspected a venereal disease and alerted Child Protective
Services (CPS) and the Watertown Police Department (PD) of
A.S.'s condition. Detective Ahmann responded and
interviewed Mother at the hospital. He called Spaniol at
about 3:30 p.m. and asked him to come to the police station
for an interview. Spaniol drove himself to the station and
spoke with Detective Ahmann. The interview was brief and
cordial, and Detective Ahmann asked about A.S.'s symptoms
and the family. Spaniol offered that he and A.S. bathed
together and that he had a genital rash but not a discharge
like A.S. He left the police station after the interview
On October 10, A.S.'s test results revealed she had
gonorrhea. Dr. Pengilly informed Detective Stahl and CPS of
the results. When Detective Stahl learned that A.S. tested
positive for gonorrhea, he wrongly presumed that Spaniol had
also tested positive for the disease. He then called Mother
and requested that she and Spaniol come to the police station
for interviews. They agreed and drove to the police station
together. Law enforcement interviewed Spaniol, and he made
numerous admissions, which resulted in his arrest at the end
of the interview.
On October 13, Mother took A.S. for an interview at
Child's Voice, an advocacy center in Sioux Falls, South
Dakota, for children who may have been abused. A.S.
participated in a recorded interview with forensic
interviewer Robyn Niewenhuis. A.S. told Niewenhuis that her
dad hurt her on more than one occasion, and when asked where,
she pointed to her vaginal area. She stated that her dad used
his finger, and when asked where his finger would go, she
stated right in her body, pointing to her vaginal area. A.S.
is diagnosed with autism spectrum disorder, which limits her
ability to communicate.
On November 14, 2014, a Codington County Grand Jury indicted
Spaniol on four counts of rape in the first degree in
violation of SDCL 22-22-1(1) and one count of sexual contact
with a child under sixteen years of age in violation of SDCL
Spaniol filed several pretrial motions. On January 14, 2015,
Spaniol filed a motion to suppress the statements he made to
law enforcement on October 10, 2014. After a hearing, the
circuit court issued findings of fact and conclusions of law,
denying Spaniol's motion. On October 15, 2015, Spaniol
filed a motion to determine A.S.'s competency to testify
at trial. At the time the motion was filed, A.S. was five
years old, and Spaniol alleged that because of her age and
autism diagnosis, she could be difficult to understand as her
speech was delayed. The circuit court held a hearing on
A.S.'s competency on October 21, 2015, at which A.S.
testified. On January 5, 2016, the circuit court issued
findings of fact and conclusions of law, holding that A.S.
was competent to testify. Specifically, the circuit court
found that "[a]lthough A.S. has several developmental
delays and limitations in her ability to communicate, A.S.
has sufficient mental capacity to observe and recollect, A.S.
has an ability to communicate, and A.S. has some sense of
Spaniol's case proceeded to a jury trial from February 29
through March 3, 2016. During the trial, the State introduced
into evidence the recording of A.S.'s interview at
Child's Voice and the Forensic Interview Summary.
Additionally, A.S., who was six at the time of trial,
testified that her "daddy hurt [her] potty" with
his hand. A.S. was then subject to cross-examination. Due to
some of A.S.'s responses, Spaniol's attorney asked
the circuit court to declare A.S. unavailable for
cross-examination because of her lack of memory. The circuit
court denied this motion. At the close of the State's
case, Spaniol's attorney moved to dismiss Count IV of the
indictment, one of the first-degree rape charges, which the
circuit court granted. During the settlement of the jury
instructions, Spaniol's attorney objected to Instruction
11, which defined sexual penetration. The circuit court
overruled the objection and gave the instruction to the jury.
On March 3, 2016, the jury convicted Spaniol on the four
remaining counts in the indictment. On May 18, 2016, the
court sentenced Spaniol to three consecutive twenty-year
sentences for the first-degree rape convictions and to a
ten-year sentence for the sexual contact conviction to be
Spaniol appeals his conviction, raising four issues:
1. Whether the circuit court abused its discretion by finding
A.S. competent to testify.
2. Whether the circuit court's denial of Spaniol's
motion to have A.S. declared unavailable for the purposes of
cross-examination violated his Sixth Amendment right to
3. Whether the circuit court erred in refusing to suppress
Spaniol's statements to law enforcement.
4. Whether the circuit court erred by giving jury Instruction
Whether the circuit court abused its discretion by
finding A.S. competent to testify.
A circuit court's decision to find a witness competent to
testify "will only be reversed upon a showing of an
abuse of discretion." State v. Carothers
(Carothers II), 2006 S.D. 100, ¶ 11, 724 N.W.2d
610, 616. "An abuse of discretion 'is a fundamental
error of judgment, a choice outside the range of permissible
choices, a decision, which, on full consideration, is
arbitrary or unreasonable.'" Gartner v.
Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850
(quoting Arneson v. Arneson, 2003 S.D. 125, ¶
14, 670 N.W.2d 904, 910).
"Every person is competent to be a witness unless
otherwise provided in this chapter." SDCL 19-19-601.
"There is no general rule regarding a child's
inherent reliability nor is there any arbitrary age at which
a child is deemed competent to testify." Carothers
II, 2006 S.D. 100, ¶ 12, 724 N.W.2d at 616.
"Instead, the standard for determining whether a child
is competent to testify is whether she or he has
'sufficient mental capacity to observe, recollect, and
communicate, and some sense of moral
responsibility.'" Id. (quoting State
v. Anderson, 2000 S.D. 45, ¶ 23, 608
N.W.2d 644, 653). We have said that it is "[o]ur
preference to allow the child to testify in order for the
jury to evaluate the child's credibility." State
v. Guthmi ler, 2003 S.D. 83, ¶ 11, 667 N.W.2d 295,
301; see Anderson, 2000 S.D. 45, ¶ 30,
608 N.W.2d at 654.
Spaniol argues that A.S.'s short responses combined with
her young age and developmental delays rendered her
incompetent to testify. He reaches this conclusion by
pointing to A.S.'s answers to questions asked at the
competency hearing, which he contends were mostly one-word
responses to the State's leading questions. A.S. also
answered many questions with head nods or "I don't
At the time of the competency hearing, A.S. was five years
and eight months old. In addition to the child's
testimony, the circuit court admitted and reviewed a number
of exhibits, including the video of A.S.'s interview at
Child's Voice, medical progress notes, psychological and
occupational therapy evaluations, and a multidisciplinary
evaluation report from the school. The circuit court noted
the medical records showed A.S. suffered from autism spectrum
disorder, obsessive compulsive disorder, and an anxiety
disorder. The circuit court acknowledged that these disorders
limited A.S.'s ability to communicate at the hearing but
concluded that A.S. was competent to testify at trial.
It is evident that A.S. had moments that may be indicative of
suggestibility or confusion. For example, near the end of the
competency hearing, the following exchange occurred on
Q: You said that you had a dad, Josh; do you see him today?
Q: You don't see him at all; do you?
Q: He is not here today; is he?
A: (Inaudible.) Where is he?
Q: And is that the truth or a lie?
A: The truth.
Q: The truth?
A: (Witness nods head.) (Inaudible.)
Q: You don't recall your dad living with you either; do
Q: And you don't recall being in a bathtub with your dad;
Q: And that's the truth, isn't it? You have to answer
out loud. We are making a record, ...