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State v. Wills

Supreme Court of South Dakota

February 28, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JONATHAN CHARLES WILLS, Defendant and Appellant.

          CONSIDERED ON BRIEFS JANUARY 8, 2018

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA, THE HONORABLE JON R. ERICKSON Judge.

          MARTY J. JACKLEY Attorney General CULLEN P. MCNEECE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          AARON P. PILCHER Rapid City, South Dakota Attorney for defendant and appellant.

          ZINTER, JUSTICE.

         [¶1.] Jonathan Wills was convicted of first-degree rape and sexual contact with a child under sixteen. He appeals, challenging the circuit court's rulings (1) permitting his impeachment with inconsistent statements he made to law enforcement in a prior, unrelated criminal investigation, and (2) precluding his expert witness from testifying about the methods used by the forensic interviewer who interviewed the child. We affirm the impeachment ruling, reverse the expert disqualification ruling, and remand for new trial.

         Facts and Procedural History

         [¶2.] Wills lived with his girlfriend Lisa Trebelcock and Trebelcock's three children, E.G., A.G., and R.T. Shortly after Wills and Trebelcock's relationship ended, Trebelcock reported Wills for sexual abuse of E.G. Law enforcement scheduled E.G. for a forensic interview at Child's Voice, a child advocacy center. [¶3.] Robyn Niewenhuis, a social worker trained in the CornerHouse protocol of forensic interviewing, conducted the interview. E.G. told Niewenhuis that Wills had sexually abused her. E.G. stated that on multiple occasions, Wills touched and rubbed the inside of her vaginal area. E.G. also stated that on another occasion, Wills had her rub his penis until "white stuff" came out.

         [¶4.] Wills was indicted for first degree rape and sexual contact with a child under sixteen. E.G. testified to the events at trial. The State also called Niewenhuis as an expert witness on forensic interviews. Niewenhuis explained the CornerHouse protocol for forensic interviewing of sexually abused children and how she utilized her training when interviewing E.G. The jury was also shown a video of the interview. Niewenhuis testified that she saw no "red flags" in the child's description of the abuse.

         [¶5.] Wills called Dr. Sarah Flynn, a forensic psychiatrist, to point out a number of alleged weaknesses in Niewenhuis's interview. Dr. Flynn specialized in several areas of psychiatry, including psychiatry relating to children and adolescents. The circuit court, however, ruled that Dr. Flynn was not qualified to give an expert opinion because she was not sufficiently familiar with the CornerHouse protocol.

         [¶6.] Wills testified in his own defense. He denied ever touching E.G. He also alleged that Trebelcock "set up" the allegations to obtain custody of the children. On cross-examination, he also denied having an attraction to and sexual curiosity about young girls:

Q: Are you attracted to younger girls?
A: No.
Q: Do you have a curiosity about them sexually?
A: No.
Q: Did you ever have a curiosity about them sexually?
A: No.

         Following these denials, the State attempted to impeach Wills's claims with inconsistent statements he had made to law enforcement during a prior, unrelated child pornography investigation. Wills objected, and the court held a hearing outside the presence of the jury.

         [¶7.] The State argued that because Wills denied touching E.G. and because he denied an attraction to and sexual curiosity about young girls, it could use the prior inconsistent statements to impeach Wills's trial testimony.[1] Although the statements had been reported in a Division of Criminal Investigation report, the agent who had prepared the report was not then available to testify. The State informed the circuit court that it could produce an agent who was present at the interview if Wills denied making the statements and if the State needed to prove the statements in rebuttal. Wills argued the impeachment evidence was unduly prejudicial because it would suggest to the jury that Wills had unlawfully possessed child pornography even though the prior charges had been dismissed.[2] The circuit court ruled that Wills's prior statements could be used to impeach his trial testimony and that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice.

         [¶8.] The jury returned, and the State resumed its cross-examination of Wills. The State asked two foundational questions concerning the interview in which Wills allegedly made the statements.

Q: What was the purpose of the interview. Why was [the DCI agent] interviewing you?
A: I was accused of a crime so he was interviewing me.
Q: And that crime had something to do with child pornography, ...

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