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State v. Spaniol

Supreme Court of South Dakota

May 3, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
JOSHUA THOMAS SPANIOL, Defendant and Appellant.

          Considered On Briefs February 13, 2017


          MARTY J. JACKLEY Attorney General CAROLINE SRSTKA Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          TERRY J. SUTTON of SUTTON LAW OFFICES, P.C. Watertown, South Dakota Attorneys for defendant and appellant.

          KERN, Justice.

         [¶1.] 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 affirm.


         [¶2.] 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.

         [¶3.] 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 treating gonorrhea.

         [¶4.] 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 ended.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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 22-22-7.

         [¶8.] 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 moral responsibility."

         [¶9.] 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.

         [¶10.] 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 served concurrently.

         [¶11.] 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 confrontation.
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 11.


         1. Whether the circuit court abused its discretion by finding A.S. competent to testify.

         [¶12.] 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).

         [¶13.] "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.

         [¶14.] 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 know."

         [¶15.] 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.

         [¶16.] 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 cross-examination:

Q: You said that you had a dad, Josh; do you see him today?
A: No.
Q: You don't see him at all; do you?
A: (Inaudible.)
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 you?
A: Nope.
Q: And you don't recall being in a bathtub with your dad; do you?
A: No.
Q: And that's the truth, isn't it? You have to answer out loud. We are making a record, ...

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