CONSIDERED ON BRIEFS JANUARY 8, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE
COUNTY, SOUTH DAKOTA, THE HONORABLE JON R. ERICKSON Judge.
J. JACKLEY Attorney General CULLEN P. MCNEECE Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
P. PILCHER Rapid City, South Dakota Attorney for defendant
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.
and Procedural History
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.
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.
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.
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?
Q: Do you have a curiosity about them sexually?
Q: Did you ever have a curiosity about them sexually?
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.
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. 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. 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
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,