State v. Packed

#24040-rev & rem-JKK

2007 SD 75

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

FRED PACKED, JR., Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
BENNETT COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN F. TRANDAHL
Judge

* * * *

LAWRENCE E. LONG
Attorney General

FRANK GEAGHAN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

TIMOTHY J. RENSCH of
Rensch Law Office, APLC Attorney for defendant
Rapid City, South Dakota and appellant.

* * * *
ARGUED ON APRIL 24, 2007

OPINION FILED 07/18/07
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KONENKAMP, Justice

[¶1.] Defendant was convicted in a jury trial of first degree rape and sexual

contact with a child who lived in his home. He was sentenced to life plus twenty–

five years. Because we conclude that several trial errors deprived him of a fair trial,

we reverse and remand for a new trial.

Background

[¶2.] E.S.B., who was eight at the time of the incidents in question, lived

with Shanna and Fred Packed, Jr. (defendant). The child referred to them as

“mom” and “dad,” but Shanna is actually E.S.B.’s maternal grandmother.

According to Shanna, E.S.B.’s natural mother, Betty DuBray, and natural father,

Gordon DuBray, “didn’t want her,” and so the child moved in with Shanna when she

was two. In the summer of 2003, Shanna, defendant, and E.S.B. lived in a brown

house in Martin, South Dakota. Her natural mother and father lived at Sunrise

Housing Addition, several miles away.

[¶3.] Around June 6, 2003, Shanna was hospitalized in Rapid City, South

Dakota with a broken jaw. According to Shanna, defendant drove her to Rapid City.

Shanna recounted that while she was in the hospital, defendant was E.S.B.’s

primary caretaker. During this same time, defendant said he was working two jobs.

When Shanna returned from the hospital, she noticed some blood in E.S.B.’s

underwear and questioned her about it. E.S.B. denied that anything had happened

to her and said that the underwear belonged to her sister. Shanna did nothing

further.

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[¶4.] Later that summer or early fall, Shanna, defendant, and E.S.B. moved

into a blue house in Sunrise Housing Addition. They were now living close to

E.S.B.’s natural mother, Betty. In September 2003, Shanna and Betty noticed “a

light green stain” on E.S.B.’s underwear. She and Betty questioned E.S.B. about it.

According to Shanna, Betty angrily asked E.S.B. who had been messing around

with her. When E.S.B. gave no response, Betty asked if “Gordon” or “Fred” had

been messing around with her, to which E.S.B. replied that Fred (defendant) had.

According to Betty, she did not do anything with this information, except leave the

room upset.

[¶5.] In January 2004, the Department of Social Services (DSS) received a

report about alleged abuse of E.S.B. A social worker investigated by first speaking

with E.S.B. at her school in Allen, South Dakota. E.S.B. was in the third grade.

She told the DSS worker that defendant had touched her sometime between

Halloween and Thanksgiving and her mom, Shanna, had found baby oil when they

moved. She also told the social worker that her younger sister was there and saw it

all happen. Although the authorities first thought E.S.B. was describing abuse that

had occurred recently, they later realized that E.S.B. was speaking about an

incident of improper touching that had happened while she was living in the brown

house the previous summer.

[¶6.] Law enforcement officers continued their investigation. They spoke

with Shanna and attempted to collect the underwear and baby oil as evidence. The

underwear had been washed, but Shanna gave it to them anyway. She also gave

them the bottle of baby oil. Shanna told the officers that when she noticed the stain

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in the underwear she told defendant about it and he told her to take E.S.B. to the

doctor. Shanna also told the authorities about a neighbor boy who had called her,

swore at her, and said rude things to her, all while claiming he was E.S.B.’s

boyfriend. Sheriff John Walker gave the information about the neighbor boy, D.H.,

to Martin City Police Chief Shane Valendra. Nothing else was done with regard to

this information by Sheriff Walker or Police Chief Valendra.

[¶7.] Police Chief Valendra and Sheriff Walker took E.S.B. and her younger

sister to Rapid City for a forensic interview and medical examination. Lora

Hawkins conducted a forensic interview of E.S.B. and Dr. Lori Strong, a

pediatrician specializing in the field of child abuse, examined her. The videotape

recording of E.S.B.’s interview shows a shy and reticent child, who volunteered little

information. Each bit of detail about the incidents had to be painstakingly obtained

with careful, age-appropriate questions. The interview lasted approximately forty-

five minutes. When the questions centered on inconsequential activities, E.S.B.

answered without reluctance. However, when questioned about defendant and

inappropriate touching, E.S.B.’s demeanor noticeably changed. Her answers were

reserved and given in a low voice.

[¶8.] E.S.B. told Hawkins that defendant had touched her four times in her

room in the brown house while her mom was in the hospital. She also said that he

touched her “peaches” with his hand. Later during the interview she said that

defendant had laid on top of her with her pants down and touched her “peaches”

with his “hot dog.” This was after E.S.B. repeatedly stated that her pants were up,

as were his, and that he never went inside her underwear. During the interview,

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Hawkins left to speak with Sheriff Walker and Police Chief Valendra to see if there

was anything they wanted her to explore. When she returned, she questioned

E.S.B. about the baby oil and whether her younger sister was in the room when the

touching occurred. E.S.B. denied that her younger sister was there and had no

information about the baby oil. Nothing was asked of her about D.H., the neighbor

boy.

[¶9.] Defendant was indicted on charges of first degree rape of a child under

ten and sexual contact with a child under sixteen “on or between June, 2003 and

January 6, 2004.” Defendant moved for a bill of particulars, which was granted.

The State filed the bill limiting the time of the alleged offense to “on or between

June 6-11, 2003.” At trial, upon motion of the defense, the time frame was further

limited to “on or between June 6-9, 2003.” When the indictment was read to the

jury, the State agreed to modify the time frame to comply with the agreed dates.

Also, in the court’s preliminary jury instructions, the dates recited were “on or

between June 6-9, 2003.”

[¶10.] Before trial, the State moved in limine to preclude defendant from

presenting evidence of a third-party perpetrator. Defense counsel responded that

what he intended to introduce was not necessarily third-party perpetrator evidence.

He intended to cross examine Shanna, Sheriff Walker, and E.S.B. about the

neighbor boy, D.H., and how Shanna and Betty had concerns about E.S.B. “running

around” with him. This line of questioning, counsel asserted, supported his theory

of the defense that E.S.B. was fabricating the allegations against defendant to avoid

getting in trouble for having a boyfriend. The court granted the State’s motion in

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limine, concluding that nothing linked D.H. to the alleged crimes, and thus, as

third-party perpetrator evidence, it was inadmissible.

[¶11.] While testifying at trial, E.S.B. was even more reticent than when she

was interviewed by the forensic interviewer. On a number of occasions, the State

had to repeat its questions before she would respond. On the specifics of the rape

charge, she said that while her underwear was down and defendant’s pants and

underwear were down, defendant touched her “middle” with his “middle.” Shanna

and Betty also testified. They described how they found the stains in E.S.B.’s

underwear and questioned her about it. Shanna was asked about D.H. by defense

counsel in an offer of proof outside the presence of the jury. She acknowledged that

she had concerns. Betty admitted to angrily questioning E.S.B. with Shanna there.

[¶12.] Sheriff Walker testified that he felt Shanna was uncooperative during

the investigation. He believed that she was attempting to protect defendant. Again

outside the presence of the jury, defense counsel asked Sheriff Walker whether one

of the reasons he believed Shanna was uncooperative was because she mentioned

that D.H. claimed to be E.S.B.’s boyfriend. Sheriff Walker agreed that such

contributed to his opinion, but that there were other factors.

[¶13.] Dr. Strong told the jury that E.S.B.’s examination was normal.

However, she explained that the majority of children who are sexually abused have

normal physical examinations. She testified that it would not be unusual to see

such reluctance in testifying for a child of E.S.B.’s age. Forensic examiner Hawkins

testified about her interview and how in her opinion E.S.B. was molested at least

twice, even though she claimed to have been touched four times. Hawkins

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explained that she believed E.S.B.s’ revelation was not a “purposeful disclosure.”

E.S.B., according to Hawkins, loved defendant and “it is hard to separate the person

from the actions sometimes.” The video from her interview with E.S.B. was played

for the jury.

[¶14.] Defendant presented the testimony of his previous attorney, Alvin

Pahlke. Apparently, Shanna had taken E.S.B. to see Pahlke for a private interview

during the time he was representing defendant. Pahlke testified that E.S.B. told

him that defendant did not touch her “peaches” and she wanted him to come home.

[¶15.] In its final instructions to the jury, the court included an instruction,

over defendant’s objection, stating that although “[t]he Indictment charges that the

offense was committed ‘on or between’ a certain date[,]. . . [i]t is sufficient if the

evidence establishes beyond a reasonable doubt that the offense was committed on a

date reasonably near the date alleged.”

[¶16.] Defendant was found guilty of both charges, admitted to being a

habitual offender, and was sentenced to life plus twenty-five years. He appeals

asserting that (1) he was improperly prevented from pursuing evidence of his theory

of the defense; (2) the court erred when it used the “on or about” instruction; (3)

there was insufficient evidence of penetration to support the rape conviction; (4)

Sheriff Walker was improperly permitted to testify that a victim’s statements are

likely to change during the course of an investigation; and (5) the court erred when

it allowed certain testimony of the forensic interviewer.

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Standard of Review

[¶17.] Decisions to admit or deny evidence are reviewed under the abuse of

discretion standard. Steffen v. Schwan’s Sales Enterprises, Inc., 2006 SD 41, ¶19,

713 NW2d 614, 621 (citations omitted). For jury instructions, the following is our

standard of review:

A trial court has discretion in the wording and arrangement of
its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under
the abuse of discretion standard. See Luke v. Deal, 2005 SD 6,
¶11, 692 NW2d 165, 168; Parker v. Casa Del Rey-Rapid City,
Inc., 2002 SD 29, ¶5, 641 NW2d 112, 115-16. However, no court
has discretion to give incorrect, misleading, conflicting, or
confusing instructions: to do so constitutes reversible error if it
is shown not only that the instructions were erroneous, but also
that they were prejudicial. First Premier Bank v. Kolcraft
Enterprises, Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448 (citations
omitted).

Vetter v. Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶10, 711 NW2d 612, 615. “The

denial of a motion for judgment of acquittal presents a question of law, and thus our

review is de novo.” State v. Disanto, 2004 SD 112, ¶14, 688 NW2d 201, 206 (citing

United States v. Staula, 80 F3d 596, 604 (1stCir 1996)).

Analysis and Decision

1. Theory of the Defense

[¶18.] Defendant asserts that “the third-party perpetrator ruling was

misapplied in contravention of the rules of evidence in such a way as to disallow the

presentation of a complete defense theory and to violate rights of confrontation.”

When the court prevented the defense from inquiring into whether E.S.B. fabricated

the allegations because of her supposed relationship with a neighbor boy, its ruling

was based on its belief that defendant was attempting to offer evidence of a third-
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party perpetrator. 1 Defendant maintains that while the evidence was construed as

third-party perpetrator evidence, it was, in fact, evidence establishing his defense.

In pursuit of this defense, defendant argues that he had the right to cross examine

Shanna, Betty, Sheriff Walker, and E.S.B. about the neighbor boy. 2

[¶19.] In regard to Sheriff Walker, defendant claimed that the State opened

the door on the neighbor boy issue when it inquired into why the sheriff believed

Shanna was not cooperative during the investigation. The court prohibited

1. In ruling on the State’s motion in limine, the court stated, “I don’t think you
can say both things. I don’t think you can say, well, we are just going into
inconsistent statements, but they do point a finger at a third person.”
Defense counsel responded, “So, to order me at this point not to get into
anybody else possibly doing something that would have caused her to say
these things, would be to deprive a defendant of a meaningful opportunity to
be heard and an opportunity to cross-examine the key witness in a case that
revolves around credibility.” The court’s final ruling: “I agree, he can go into
inconsistent statements. If you are going to go into further evidence, then
you are going to have to come in and — so the motion is granted, I will allow
inconsistent statements. But if you go further than that, you will have to
come back and ask permission.”
2. In response to the State’s motion in limine, defense counsel argued,
I am not conceding that it is third party perpetrator evidence. I can
see where someone would say it is that. If she has made statements to
others it was someone else, certainly we would have a right to ask her
about that. I don’t have a – you know, it is not like the State versus
Luna case where they brought in a bunch of witnesses saying that a
guy had blood on his hand and was off like that. I really think that I
can get into this stuff without providing any notice, because it involves
statements of the alleged victim, and my cross-examination of her is
what it will be. I just wanted the [c]ourt to know that, yeah, we’ve got
some statements out there where she said different things and I plan
on getting into those, and I don’t want to be precluded based upon a
granting of third-party perpetrator motion. I don’t have people lined
up to come in and show that, you know, someone else did this. It is our
position that this did not occur, that Fred did not do this. So from that
standpoint, the third-party perpetrator is really irrelevant in the sense
(continued . . .)

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defendant from engaging in this line of questioning. In making his offer of proof,

defendant elicited the following testimony from Sheriff Walker:

Q: Sir, on cross-examination, we were talking a little bit
about the matter that you felt that Shanna Packed was
misleading you on. I’m looking at page five of five of your report,
where there is a statement about [D.H.].
A: Yes.
Q: Is that what you were talking about?
A: That was one of the incidents, but I don’t recall
specifically when you were asking the question. Now that you
brought it to my attention, yes, that is one of the incidents.
Q: What was it she said to you that you felt was misleading?
A: I felt that she was trying to lead me away from Mr.
Packed in the investigation. And point blame to, on a - - this
young man.
Q: Okay. And tell the [c]ourt what she said in that regard.
A: She said that he had called, [D.H.] had called her, and
that he said that he was her boyfriend. And that he called her a
fat bitch on the phone.
Q: Okay, and what did you say immediately before, which
caused her to say that?
A: Can I look at my - -
Q: Please.
A: The only other people that would be taking care of
Shanna [sic], I asked her who all would be taking care of Shanna
[sic].
Q: Okay.
A: And she said the only other people would be Shanna’s
[sic] mother and father.
Q: You mean [E.S.B.]’s?
A: [E.S.B.]’s mother and father.
Q: Which would be Betty and Gordon.
A: Gordon, yeah.
Q: It was after that then, she was telling you the story about
the neighborhood boy?
A: Yeah, she went right into the story about the neighbor
boy.
Q: And you felt that was [a] reference to the stains in the
panties, is that correct?

__________________
(. . . continued)
that we are not saying that was what she said happened with Fred,
even happened. So that’s our position.

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A: I felt that - - I had been talking to her about the panties
and about Mr. Packed, and she wanted - - I felt she was leading
me to think that somebody else may have had contact with her,
and that [E.S.B.] had this boyfriend, this [D.H.].
Q: Say that last part again, I didn’t hear you.
A: I felt that she was trying to point me in the direction of
another suspect in the investigation. Which would be this young
boy [D.H.].
Q: Did you take any steps to track this boy down?
A: The information was given to Chief Valendra, because it
was in Martin, and he said he was going to conduct a follow-up
investigation. So he would have been given that information.
Q: All right. So you didn’t do anything more in that regard?
A: I don’t recall if I did when I got back, other than told
Chief Valendra.
Q: And just so we are clear, when you said, on direct, that
she was in denial and misleading me at times, you were
referring in part to this [D.H.] situation?
A: That, and also when we were discussing the panties, she
initially told me that she didn’t know anything about it and
demanded that I tell her who made these allegations, and she
turned around and told me that she has seen this green
substances in the panties.

The court did not allow defendant to introduce this evidence, concluding that it

would violate its previous ruling on third-party perpetrator evidence. However, the

State was permitted to inquire into how Shanna was uncooperative during the

investigation.

[¶20.] In holding to its ruling, the court also limited defendant’s inquiry of

Shanna and her concerns about D.H. Shanna had previously said that when Betty

angrily questioned E.S.B. about the underwear there were concerns about her

“running around” with D.H. This information, according to defendant, supported

his theory that E.S.B. was motivated to blame defendant because she “was worried

about her elders interfering with her relationship with a boyfriend[.]” Defendant

believes that he should have been allowed to question E.S.B. about “whether or not

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she was making the story up to deflect possible trouble at the time her elders

questioned her about a stain in her panties.” Allowing cross examination of the

witnesses on this subject, defendant asserts, could establish a “justification for the

victim to lie about the allegations, could give context to the statements of the

alleged victim, and could show reasons other than sexual molestation for claims

made.”

[¶21.] In response to these arguments, the State contends that the court

properly excluded this evidence because there was nothing linking D.H. to the

crimes charged and, therefore, the evidence was “highly unreliable” and of “little

probative value.” The State further asserts that the door was not opened during

Sheriff Walker’s testimony on why he believed Shanna was being uncooperative

because Sheriff Walker had other reasons for finding her uncooperative. Regardless

of whether the state opened the line of inquiry with its questions of Sheriff Walker,

we think the court erred in restricting cross examination on the neighbor boy.

[¶22.] At the outset, we must emphasize that there is no special rule in South

Dakota dealing solely with third-party perpetrator evidence. Relevant evidence is

admissible; irrelevant evidence is inadmissible, subject to the considerations of

SDCL 19-12-3 (Rule 403). SDCL 19-12-2 (Rule 402). Labeling an offer “third-party

perpetrator” evidence will not automatically exclude it. When third party

perpetrator evidence is challenged as unfairly prejudicial, confusing, or misleading,

trial courts are required to apply, on the record, the probative versus prejudicial

balancing test of SDCL 19-12-3 (Rule 403) in deciding to admit or exclude such

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evidence. See State v. Jenner, 451 NW2d 710, 722 (SD 1990); State v. Braddock,

452 NW2d 785, 789-90 (SD 1990).

[¶23.] More to the point here, however, it must be recognized that there is a

distinction between evidence offered to prove the guilt of another uncharged

individual and evidence offered to show that a witness has a motivation to accuse

the wrong person. To deny without rational basis evidence of the latter contravenes

a defendant’s due process rights. In Davis v. Alaska, the United States Supreme

Court explained:

A more particular attack on the witness’ credibility is effected by
means of cross-examination directed toward revealing possible
biases, prejudices, or ulterior motives of the witness as they may
relate directly to issues or personalities in the case at hand. The
partiality of a witness is subject to exploration at trial, and is
‘always relevant as discrediting the witness and affecting the
weight of his testimony.’ 3 A J. Wigmore, Evidence § 940 at 775
(Chadbourn rev. 1970). We have recognized that the exposure of
a witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of cross-
examination.

415 US 308, 316-17, 94 SCt 1105, 1110, 39 LEd2d 347 (1974) (citing Greene v.

McElroy, 360 US 474, 496, 79 SCt 1400, 1413, 3 LEd2d 1377 (1959)). “[D]ue process

is in essence the right of a fair opportunity to defend against the accusations. State

evidentiary rules may not be applied mechanistically to defeat the ends of justice.”

State v. Luna, 378 NW2d 229, 233 (SD 1985) (citing Chambers v. Mississippi, 410

US 284, 93 SCt 1038, 35 LEd2d 297 (1973)); see also Holmes v. South Carolina, 547

US 319, 321, 126 SCt 1727, 1731-32, 164 LEd2d 503 (2006).

[¶24.] We afford broad discretion to the court in deciding whether to admit or

exclude evidence. Steffen, 2006 SD 41, ¶19, 713 NW2d at 621 (citations omitted).

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However, “[w]hen a trial court misapplies a rule of evidence, as opposed to merely

allowing or refusing questionable evidence, it abuses its discretion.” State v.

Guthrie, 2001 SD 61, ¶30, 627 NW2d 401, 415 (citing Koon v. United States, 518 US

81, 100, 116 SCt 2035, 2047, 135 LEd2d 392 (1996)). By considering the relevancy

of defendant’s proposed cross examination to his defense and then not weighing the

probative value of this evidence against its prejudicial impact, the court misapplied

SDCL 19-12-2 (Rule 402) and SDCL 19-12-3 (Rule 403). The court simply concluded

that defendant was attempting to offer evidence of a third-party perpetrator and

excluded any reference by defendant to D.H. for any purpose. Completely

disregarded was defendant’s interest in presenting his defense that E.S.B. was

motivated to fabricate the allegations to avoid getting in trouble with Shanna and

Betty.

[¶25.] In Chambers v. Mississippi, the United States Supreme Court declared

that “[t]he right of cross-examination is more than a desirable rule of trial

procedure. It is implicit in the constitutional right of confrontation, and helps

assure the ‘accuracy of the truth-determining process.’” 410 US at 295, 93 SCt at

1046, 35 LEd2d 307 (quoting Dutton v. Evans, 400 US 74, 89, 91 SCt 210, 220, 27

LEd2d 213 (1970); Bruton v. United States, 391 US 123, 135-37, 88 SCt 1620, 1628-

29, 20 LEd2d 476 (1968)). When a defendant’s theory “is supported by law and . . .

has some foundation in the evidence, however, tenuous[,]” the defendant has a right

to present it. United States v. Grimes, 413 F2d 1376, 1378 (7thCir 1969) (citing

Tatum v. United States, 190 F2d 612, 617 (DCCir 1951); United States v. Phillips,

217 F2d 435, 442-43 (7thCir 1954)); see also United States v. Chatham, 568 F2d

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445, 450 (5thCir 1978); State v. Lujan, 967 P2d 123, 127 (Ariz 1998); Lewis v. State,

591 So2d 922, 925-26 (Fla 1991).

[¶26.] Evidence tending to establish a motive of E.S.B. to fabricate the

allegations against defendant was certainly relevant and probative, as it casts

doubt on the State’s evidence that defendant committed the crimes. See SDCL 19-

12-1; see Olden v. Kentucky, 488 US 227, 231-32, 109 SCt 480, 483, 102 LEd2d 513

(1988). At the time E.S.B. implicated defendant, after Betty angrily questioned her

in regard to a greenish stain in her underwear, Shanna and Betty had concerns

about E.S.B. and the neighbor boy, D.H. E.S.B. did not make the accusations

against defendant until the questioning from Betty and Shanna, which was about

five months after the alleged touching. Allowing defendant an effective cross

examination of Sheriff Walker, Shanna, Betty, and E.S.B. would not result in

confusion of the issues, delay, waste of time, or presentation of cumulative evidence.

[¶27.] An accused must “be afforded a meaningful opportunity to present a

complete defense.” State v. Iron Necklace, 430 NW2d 66, 75 (SD 1988) (citation

omitted); see also State v. Mixon, 998 P2d 519, 523 (KanCtApp 2000) (citing State v.

Bradley, 576 P2d 647 (Kan 1978)). Those denied the ability to respond to the

prosecution’s case against them are effectively deprived of a “‘fundamental

constitutional right to a fair opportunity to present a defense.’” State v. Lamont,

2001 SD 92, ¶16, 631 NW2d 603, 608-09 (quoting Crane v. Kentucky, 476 US 683,

687, 106 SCt 2142, 2145, 90 LEd2d 636 (1986)). By excluding all references to D.H.,

the court’s ruling in all probability affected the final result and prejudiced

defendant’s right to a fair trial, requiring a new trial. See State v. Hage, 532 NW2d

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406, 412 (SD 1995) (citing State v. Phillips, 489 NW2d 613, 617 (SD 1992); State v.

Michalek, 407 NW2d 815, 818-19 (SD 1987)).

2. Jury Instruction

[¶28.] Defendant next asserts that the court erred when it instructed the jury

that defendant could be found guilty if the jury concluded that the alleged crime

occurred “on or about” the dates alleged in the indictment. According to defendant,

the State agreed to limit the time frame to “on or between June 6-9, 2003.” When

the State read the indictment to the jury, it recited “on or between June 6-9, 2003”

and the court’s preliminary jury instructions used “on or between June 6-9, 2003.”

However, over defendant’s objection, the court told the jury in its final instructions

that even though the indictment charged “on or between,” to find defendant guilty

the evidence must establish “beyond a reasonable doubt that the offense was

committed on a date reasonably near the date alleged.” 3 (Emphasis added).

[¶29.] Defendant argues that the court’s “on a date reasonably near”

instruction was improper. He asserts that E.S.B. was at Betty’s home while

Shanna was in the hospital in Rapid City, which was from June 6 to at least June 9,

2003. Therefore, because E.S.B. was not with him, defendant claims that the jury

would not have found him guilty if the instruction used only the “on or between

June 6-9, 2003,” rather than “on a date reasonably near” the charged dates.

3. Instruction 29 of the court’s final instructions stated in its entirety:
The indictment charges that the offense was committed “on or
between” a certain date. The proof need not establish with certainty
the exact date of the offense alleged. It is sufficient if the evidence
(continued . . .)

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[¶30.] When time is a material element of the crime or when time is of the

essence, it may be error for a trial court to instruct the jury that a defendant can be

found guilty if the jury finds that the crime occurred at a date reasonably near the

date alleged. See State v. Sonen, 492 NW2d 303, 305 (SD 1992) (citing State v.

Nelson, 310 NW2d 777, 779 (SD 1981)). Although defendant claims that E.S.B. was

staying at Betty’s when the alleged crimes occurred, there is also evidence that she

stayed with defendant while Shanna was in the hospital. Shanna testified at trial

that while she was in the hospital defendant was E.S.B.’s primary caretaker. Betty

also testified that E.S.B. was with defendant. Therefore, defendant’s “inverse alibi”

defense is not sufficient in itself to make time of the essence. This is especially true

considering that “in cases of sexual abuse of minors” we have held “that time is not

a material element of the offense.” See State v. Darby, 1996 SD 127, ¶10, 556

NW2d 311, 316 (citing State v. Floody, 481 NW2d 242, 247 (SD 1992); State v.

Basker, 468 NW2d 413, 416 (SD 1991); State v. Wurtz, 436 NW2d 839, 842 (SD

1989); State v. Swallow, 350 NW2d 606, 608 (SD 1984)).

[¶31.] Yet, in this case, there was a specific agreement between the State and

the defense that the crime was committed “on or between June 6-9, 2003.”

Defendant relied on this agreement and defended the case in accordance with the

time alleged. See Sonen, 492 NW2d at 306. Because of the agreement in this case,

the court erred when it gave the jury the “on a date reasonably near” instruction.

__________________
(. . . continued)
establishes beyond a reasonable doubt that the offense was committed
on a date reasonably near the date alleged.

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This error substantially prejudiced defendant’s rights. See Hage, 532 NW2d at 412

(citing Phillips, 489 NW2d at 617; Michalek, 407 NW2d at 818-19).

3. Sufficiency of the Evidence

[¶32.] According to defendant, because the evidence at trial established

through the testimony of Dr. Strong that the “genital opening” is the hymen, the

State was required to establish that defendant penetrated E.S.B.’s hymen before

the jury could find him guilty of rape. Under SDCL 22-22-2, “[s]exual penetration

means an act, however slight, of sexual intercourse . . . or any intrusion, however

slight, of any part of the body or of any object into the genital or anal openings. . . .”

We have never held that SDCL 22-22-2 requires hymenal penetration to constitute

“an act, however slight, . . . into the genital” opening. See SDCL 22-22-2. When the

State presents evidence of vulval or labial penetration, however slight, this act, if

believed by the jury to have occurred, is sufficient to establish penetration of the

genital opening. See People v. Bristol, 320 NW2d 229, 230 (MichCtApp 1981);

Jackson v. State, 452 So2d 438, 440-41 (Miss 1984); State v. Hirsch, 511 NW2d 69,

80 (Neb 1994).

4. Investigating Officer’s Testimony

[¶33.] Over defendant’s objection, the State asked Sheriff Walker, “During

the thousands of investigations you’ve done in your 20-some years of law

enforcement, have things changed from what you originally thought when you

started the investigation, to when you completed it?” The question was asked in

relation to E.S.B.’s inconsistent statements. Sheriff Walker responded:

Witnesses can change their statements. The dates can change.
Perceptions that one individual has of seeing one thing, they
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may add to it or take away from it. Two individuals may see
something differently. Any event in an investigation is subject
to change. That is why you continue your investigation.

According to defendant, this “self-serving speculation, without foundation is in

effect the officer’s unqualified and bare expert opinion about how things routinely

change to make the victim’s inconsistent statements seem insignificant.”

[¶34.] “[I]t is the function of the jury to resolve evidentiary conflicts,

determine the credibility of witnesses, and weigh the evidence.” State v. Svihl, 490

NW2d 269, 274 (SD 1992) (citing State v. Battest, 295 NW2d 739, 742 (SD 1980)).

“The general rule . . . is that one witness may not testify [on the credibility of

another witness] . . . because such testimony would invade the exclusive province of

the jury to determine the credibility of a witness.” McCafferty v. Solem, 449 NW2d

590, 592 (SD 1989), overruled on other grounds, State v. Raymond, 540 NW2d 407

(SD 1995).

[¶35.] Although we have allowed experts in sexual abuse cases to testify

generally about child victims, Sheriff Walker was not offered as an expert on

investigations involving child victims. See State v. McKinney, 2005 SD 73, ¶35, 699

NW2d 471, 482 (citing Floody, 481 NW2d at 249). However, even if the court erred

in allowing this line of questioning, defendant has not argued that the court’s error

produced some effect on the outcome of the trial. See Hage, 532 NW2d at 412 (citing

Phillips, 489 NW2d at 617; Michalek, 407 NW2d at 818-19). Instead, he claims that

this error was prejudicial when considered with other trial errors. In light of the

remand on the first issue, we need not determine if this error was prejudicial. See

Shamburger v. Behrens, 380 NW2d 659, 664-65 (SD 1986).

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5. Forensic Interviewer’s Testimony

[¶36.] Defendant next argues that the court improperly allowed Hawkins to

testify about the credibility of E.S.B. According to defendant, Hawkins’s testimony

was not general in regard to all child victims, but was specific to E.S.B. and,

therefore, invaded the province of the jury. The State asked Hawkins, “And so if I

tell you that [E.S.B.]’s testimony was that, when she was here yesterday, was that

this happened in her room. And I think on the tape we saw it was in her mom’s

room. . . . Does that cause you any great concern as someone who spends their

career, 30 years, of working with children and doing forensic interviews?” Over

defendant’s objection, Hawkins responded,

I guess, had it been a radically different location, for instance, if
she had said it happened in a car when she came and talked to
the jury, or if she had said it happened out of doors, that would
be a radically different environment, versus one bedroom in a
home as another bedroom apparently in the same house? That
would not surprise me at all that a child would do that. What
we know about children talking about their abuse is that they
tell things piece by piece, bit by bit, and much of that is based on
what they feel is going to happen, once they tell all.

(Emphasis added). According to defendant, “This is a far cry from talking about

characteristics of abused children.”

[¶37.] “Generally, ‘one witness may not testify as to another witness’[s]

credibility or truth-telling capacity because such testimony would invade the

exclusive province of the jury to determine the credibility of a witness.’” McKinney,

2005 SD 73, ¶32, 699 NW2d at 481 (quoting Raymond, 540 NW2d at 409-10

(citations omitted)). However, an expert’s testimony does not invade the province of

the jury when it is a “generalized explanation of a child’s capacity to testify[.]” Id.

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¶33. We have also declined to find that an expert’s testimony invaded the province

of the jury when the expert testified “to the general characteristics of a sexually

abused child.” State v. Edelman, 1999 SD 52, ¶22, 593 NW2d 419, 423. Although

the State’s question was specific to E.S.B., and therefore improper, the response

Hawkins gave was general and did not touch on E.S.B.’s credibility. Instead, she

spoke about how this type of testimony would not surprise her based on her

experience with children in general. Thus, although the objection to the

prosecutor’s question should have been sustained, the answer itself was not

improper.

[¶38.] Reversed and remanded.

[¶39.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY,

Justices, concur.

[¶40.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice (concurring in part and dissenting in part).

[¶41.] I concur in Issues 1, 2, 3 & 4. I dissent in Issue 5 because the Court

improperly allowed forensic examiner Hawkins to testify about the credibility of

E.S.B. As stated, her testimony was not general in regard to all child victims but

specific to E.S.B. and invaded the province of the jury. See McKinney, 2005 SD 73,

¶¶32-36, 699 NW2d at 481.

[¶42.] Even the majority opinion concedes that “the State’s question was

specific to E.S.B. and therefore improper . . . .” Supra ¶36. However, the majority

opinion deludes itself into concluding that the response was general and did not

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touch on E.S.B.’s credibility. I disagree. The State’s question was specific as to

E.S.B., was improper, and the answer to the specific question was responsive to the

specific question. The State basically asked if there was a problem with E.S.B.’s

credibility because she switched locations of the alleged abuse during her testimony.

The forensic examiner improperly bolstered E.S.B.’s credibility when she essentially

testified that she had no concern with the inconsistencies in E.S.B.’s testimony.

Specifically, when responding to the improper question the forensic examiner

explained:

I guess, had it been a radically different location, for instance, if
she had said it happened in a car when she came and talked to
the jury, or if she had said it happened out of doors, that would
be a radically different environment, versus one bedroom in a
home as another bedroom apparently in the same house? That
would not surprise me at all that a child would do that. What
we know about children talking about their abuse is that they
tell things piece by piece, bit by bit, and much of that is based on
what they feel is going to happen, once they tell all.

Supra ¶35 (emphasis added). The majority opinion emphasizes the portions of the

testimony which allegedly refer to children generally. However, the preceding

statements specifically refer to “she.” The forensic examiner’s answer, taken as a

whole, demonstrates that the jury could not have reasonably concluded that the

response only went to the general characteristics of a sexually abused child. The

response vouched for the credibility of the victim despite the fact that she was

confused and incorrect about the room where the alleged incident occurred.

[¶43.] This case is going back for a re-trial. It would be a serious mistake if

this Court puts its stamp of approval on an improper question which resulted in an

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improper and prejudicial answer that bolstered E.S.B.’s credibility and invaded the

province of the jury. This would be built in error for the next appeal and I dissent.

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