#24807-a-RWS
2008 SD 112
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KASEY L. ONKEN, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOHN J. DELANEY
Judge
* * * *
LAWRENCE E. LONG
Attorney General
FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
BRYAN T. ANDERSEN
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellant.
* * * *
ARGUED OCTOBER 1, 2008
OPINION FILED 11/12/08
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SABERS, Justice.
[¶1.] Kasey L. Onken was prosecuted for five counts of criminal pedophilia
and, in the alternative, five counts of sexual contact with a child under sixteen. He
was found guilty of one count of sexual contact with a child under sixteen. During
trial, Onken questioned witnesses about V.B., a witness the defense believed did not
exist, and discovered that V.B. does in fact exist. Onken requested a continuance
for time to interview V.B. to gather potential exculpatory evidence in support of his
defense. His request was denied. Onken appeals. We affirm.
FACTS
[¶2.] Onken and Heather Thomas began dating in 1996, and during the
course of their relationship had two children: J.O., a daughter, was born August 14,
1997, and A.O., a son, was born May 14, 1999. Onken and Thomas’s relationship
ended in May 2000. J.O. and A.O. did not resume contact with Onken until August
2004, when Thomas’s protection order against Onken expired. 1 Onken exercised
visitation with J.O. and A.O. from August 2004 until December 3, 2004, at which
time Thomas petitioned for another protection order against Onken. 2
1. Thomas said she allowed Onken to have visitation with J.O. and A.O. at this
time because she was currently pregnant with her third child, fathered by
her current boyfriend, and the children were asking questions about their
own father. Further, Thomas testified that she was now a different person
and thought Onken possibly was as well.
2. The purpose for the protection order does not stem from the charges in this
case, but rather from an argument Onken had with either J.O. or A.O., or
both, the basis for which is unclear in the record.
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[¶3.] During this August to December 3, 2004 timeframe, J.O. claims that
on several occasions Onken came to where she was sleeping, took off her clothes,
and forced her to have sexual intercourse with him. She explained that Onken “put
his private part into her private part and sticky, white or yellow stuff would come
out of his private part.”
[¶4.] J.O. said that the first time Onken did this to her was the night before
her seventh birthday, and he repeated the act during each visitation thereafter.3
J.O. said Onken did this to her at least five times. A.O., J.O.’s then four-year-old
brother, was present in the room during these occurrences and “woke up because
the bed was moving” and “creaking.” He stated that when he saw Onken’s body
“going up and down” on top of J.O., he “tried to push him off.” A.O. testified that
Onken would “finally [get] off” J.O. and leave the room. J.O. stated that the last
time Onken did this to her was the weekend of December 3, 2004, which was the
last time Onken had visitation with J.O. and A.O.
[¶5.] J.O. explained that V.B., a friend of hers from daycare, was the first
person she told about what her father was doing to her. 4 V.B. told J.O. to tell her
mother what her father was doing. J.O. told V.B. that she was scared to tell anyone
3. The dates visitation occurred is disputed.
4. J.O. told Lora Hawkins, the forensic interviewer, that V.B. was “in
counseling,” and it was later determined that this was for a “relationship
between V.B. and an older person.”
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else. 5 J.O. said V.B. told her, “If you are scared to tell your mom, then just tell your
brother to tell her.”
[¶6.] On Thanksgiving Day 2005, Thomas, J.O., A.O., and Thomas’s baby
were traveling to Chamberlain to spend the holiday with Thomas’s family. Thomas
and A.O. were in the front of the car, while J.O. and the baby were in the back seat.
Thomas testified that out of nowhere, A.O. said, “[Onken] had S-E-X with J.O.”
Thomas further explained that when she looked at J.O. in the rearview mirror, she
saw J.O.’s facial expression and knew it was true.
[¶7.] The next day, Thomas called law enforcement to file a report. On
November 30, 2005, J.O. was interviewed by Lora Hawkins, a forensic interviewer
with Child Advocacy Center of the Black Hills at Black Hills Pediatrics in Rapid
City. Hawkins followed an interview protocol approved by the National Children’s
Alliance to establish a comfort level with the child and set several ground rules for
the interview. 6 She is also trained to “be aware of markers and indicators for when
a child might have had planted ideas or some sort of contamination.” During the
interview, J.O. described the events that occurred during the August to December 3,
5. J.O. said Onken warned her that if she reported this to anyone, he would
hurt her. J.O. told Hawkins that Onken “said he would hurt me but I didn’t
know what he meant by hurting me or what he would do.”
6. Some of the standard rules include the following: (1) if the child does not
know the answer to the question, she is to indicate so or that she does not
remember, rather than fabricate an answer; (2) the child is advised that the
same question may be asked more than once, not to test whether the child is
lying, but rather to make sure the interviewer understands the given answer;
(3) the child is told to correct the interviewer if anything is misstated; (4) the
child is to notify the interviewer if a question is confusing; and (5) the child
must commit to telling the truth.
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2004, timeframe. J.O. disclosed that she had confided in her daycare friend V.B.,
and that V.B. was the “very first person she told what happened.” Hawkins
testified during a motions hearing that, in her interview, J.O. did not appear to
have been coached by another individual.
[¶8.] On June 8, 2006, Onken was indicted for five counts of criminal
pedophilia and, in the alternative, five counts of sexual contact with a child under
sixteen. A Part II Information for Habitual Offender was also filed against Onken.7
On May 15, 2007, Onken filed Defendant’s First Motion for Discovery, requesting,
among other things:
10. All statements considered by the prosecution to be relevant
to the alleged crimes made by any person which would tend to
incriminate or exculpate the defendant, whether reduced to
writing or not;
***
18. Any other evidence, statements, or materials known to the
prosecution, including law enforcement officers or investigators,
which is exculpatory in nature or favorable to the defendant or
which may lead to exculpatory material or which aids in the
preparation of the defense, including evidence relevant to guilt
or innocence of said defendant not otherwise specifically
requested by this motion.
Furthermore, on the same date Onken requested V.B.’s, as well as other
individuals’, Department of Social Services records. Although the trial court
ordered the release of records belonging to the other individuals, it did not include
7. Onken had been convicted of Driving or Control of a Vehicle while under the
Influence of Alcohol (Third Offense) on August 29, 2005.
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V.B.’s records in its order. 8 Defense counsel was not provided with any information
regarding V.B., other than what J.O. disclosed to Hawkins during the videotaped
interview. In fact, defense counsel indicated the State gave him the impression that
V.B. did not exist. 9
[¶9.] A two-day jury trial was conducted for the charges of criminal
pedophilia and sexual contact with a child under sixteen. During the trial, the
defense questioned three of the State’s witnesses about V.B. However, the
substance of the witnesses’ answers did not amount to much more than the fact that
V.B. was a real person with whom J.O. was friends.
[¶10.] At the close of the State’s case-in-chief, defense counsel argued that the
State violated the discovery request by failing to provide any information regarding
V.B. The court directed the State to provide defense counsel with an address for
V.B., but instructed defense counsel that if he was going to interview V.B., he
needed “to do it between now and dawn.”
[¶11.] On the second day of trial, the court inquired whether defense counsel
interviewed V.B. Defense counsel acknowledged that the State provided V.B.’s
phone number, but that defense counsel did not contact V.B. because it was 5:30
P.M., his staff was gone, and he “wasn’t going to make a phone call like that to a
8. The trial court did not explicitly deny the request for V.B.’s records either; it
just did not include her records in the order.
9. In response to this claim, the State responded, “I don’t recall saying that
[V.B.] doesn’t exist.”
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girl that had possibly been molested.” 10 When the court asked defense counsel
what relief he was looking for, he replied, “A continuance now that we know where
[V.B.] is to make inquiries of her.” 11 The court denied the request for a continuance
and resumed the trial.
[¶12.] At the close of evidence, the court allowed defense counsel to review
V.B.’s DSS records for fifteen minutes. 12 The court said it would reconsider the
request for a continuance depending on the information found in the records. After
providing this opportunity, the court decided that although there may have been
some information in V.B.’s DSS records helpful to Onken’s case, it was not going to
grant a continuance.
[¶13.] Ultimately, the jury found Onken guilty of one count of sexual contact
with a child under sixteen, and acquitted him of all other charges. Moreover,
Onken was found guilty of being a habitual offender at his January 25, 2008 court
trial for the Part II Information. On January 28, 2008, Onken was sentenced to
10. Defense counsel indicated he made a request for information regarding [V.B.]
at the May 21, motion hearing. Upon review of that transcript, we find no
mention of [V.B.]. There is discussion of the court doing an in-camera review
of the DSS records, but it is not specific to which records the parties and the
court are referring. Regardless, as mentioned earlier, the court’s order to
release certain DSS records never included V.B.’s records.
11. Defense counsel never specifically requested a mistrial.
12. Defense counsel revealed that he had V.B.’s records in his office throughout
the length of this case because his office had represented a party in an abuse
and neglect matter with which V.B. was involved.
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fifteen years in the South Dakota State Penitentiary, six of which were suspended.
Onken appeals the denial of a continuance to this Court.13
STANDARD OF REVIEW
[¶14.] Our standard of review is well established:
“An abuse of discretion occurs when ‘discretion [is] exercised to
an end or purpose not justified by, and clearly against, reason
and evidence.’” In re L.M.G., 2007 SD 83, ¶6, 738 NW2d 71, 73-
74 quoting Miller v. Jacobsen, 2006 SD 33, ¶18, 714 NW2d 69,
76. The test for an abuse of discretion is not whether we would
reach the same result, but rather, “whether we believe a judicial
mind, in view of the law and the circumstances, could
reasonably have reached that conclusion.” State v. Crawford,
2007 SD 20, ¶13, 729 NW2d 346, 349 quoting Huber v. Dep’t of
Pub. Safety, 2006 SD 96, ¶22, 724 NW2d 175, 180.
State ex rel. White v. Brandt, 2008 SD 33, ¶11, 748 NW2d 766, 770.
[¶15.] Whether the trial court abused its discretion by denying a
continuance to allow Onken time to interview V.B. to gather
potential exculpatory evidence in support of his defense.
[¶16.] Onken argues that the State’s failure to provide information regarding
V.B. was a violation of the discovery order, and furthermore, that the court’s denial
of a continuance for Onken to gather information from and about this witness was
an abuse of discretion. The defense indicates that information regarding V.B. is
important because V.B. had also asserted sexual molestation allegations against an
adult. In the defense’s opinion, V.B. may have imputed her knowledge regarding
her personal experiences to J.O., and therefore, assisted J.O. in forming the
13. On appeal, Onken claims that the trial court erred “in denying [his] request
for a mistrial or continuance . . . .” As stated before, Onken never requested a
mistrial; he only requested a continuance.
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allegations against Onken. Onken provides no basis for this conclusion other than
his “opinion.”
[¶17.] In considering whether the trial court abused its discretion in denying
Onken’s continuance request, the intrinsic issue of whether there was a discovery
order violation must first be determined. SDCL 23A-13-17 (FedRCrimP 16(d)(2))
provides:
If, at any time during the course of a proceeding, it is brought to
the attention of a court that a party has failed to comply with an
applicable discovery provision, the court may order such party to
permit the discovery or inspection, grant a continuance, or
prohibit the party from introducing evidence not disclosed, or it
may enter such other order as it deems just under the
circumstances. The court may specify the time, place, and
manner of making the discovery and inspection and may
prescribe such terms and conditions as are just.
[¶18.] “‘[T]he remedy for nondisclosure of discoverable material is left to the
sound discretion of the trial court.’” State v. Guthrie, 2002 SD 138, ¶7, 654 NW2d
201, 204 (quoting State v. Hofman, 1997 SD 51, ¶17, 562 NW2d 898, 903 (quoting
State v. Oster, 495 NW2d 305, 309 (SD 1993) (internal quotations omitted))). “[N]ot
every failure to produce evidence as ordered is, without more, prejudicial error.”
State v. McKee, 314 NW2d 866, 867 (SD 1982) (citations omitted).
[¶19.] In his brief, Onken rests on the conclusory proposition that,
The trial court clearly abused its discretion in holding that the
violation of the discovery order was harmless because Onken
was not afforded time to have V.B. forensically interviewed. . . .
[S]howing up on a child’s doorstep at 5:30 in the evening and
asking her to disclose any sex acts would have not been
appropriate.
Onken cites no authority to support his claim of abuse. Furthermore, the record
indicates that Onken, well before trial, learned of V.B.’s existence from the
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videotape of Hawkin’s interview. Testimony regarding V.B. was not a surprise to
Onken. As a caution, however, the trial court allowed Onken to review V.B.’s DSS
files while the jury was deliberating. This was done in accordance with SDCL 23A-
13-17, in which the “time, place, and manner of making the discovery and
inspection” were specified by the court. After providing this opportunity, the court
acknowledged that “it is possible that there may be some information [in V.B.’s DSS
records] helpful in terms of the theory of defense of the case[.]” Ultimately, the
court found no discovery violation.
[¶20.] The facts support this conclusion. Although we recognize that Onken
may not have been prepared for J.O.’s testimony that V.B. existed, he did cross-
examine three witnesses about V.B., and moreover, had possession of the videotape
well before trial. Furthermore, the facts do not support Onken’s defense that V.B.
imputed her knowledge to J.O. Hawkins testified that based on her training, J.O.’s
answers were not indicative of coaching. Additionally, it was A.O., not J.O., who
revealed to Thomas what Onken did to J.O. In light of the standard of review, the
fact that the trial court “may enter such order as it deems just under the
circumstances[,]” and because Onken has not specifically shown how the testimony
prejudiced his case, there is no showing of abuse of discretion in this finding.
[¶21.] Next, we consider whether the denial of a continuance was an abuse of
discretion. “A trial may be postponed ‘upon good cause shown.’” State v. Lang, 354
NW2d 723, 724 (SD 1984) (quoting SDCL 15-11-4). Similar to the determination of
a discovery violation, “[t]he granting of a continuance is within the sound discretion
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of the trial court and its rulings will not be disturbed absent a clear showing of
abuse of discretion.” Id. (citing State v. Rosales, 302 NW2d 804 (SD 1981)).
[¶22.] In State v. Hagan, 1999 SD 119, 600 NW2d 561, the State failed to
provide the defense with inculpatory statements made by the defendant within the
agreed time limits. Rather, the defense was notified of some of these statements
five days before trial, other statements were provided the day before trial, and
notice for even more statements was given the day of trial. After the defense’s oral
motions in limine and for a continuance were denied, the statements were admitted
in the State’s case-in-chief. Two of the three witnesses who provided this
information to the State were previously unknown to the State, and as soon as the
inculpatory statements were disclosed, the State immediately notified the defense.
The defense, however, had the name of the third witness, as well as a summary of
his allegations, almost two months prior to trial. On appeal to this Court, we held
that based on these facts, the denial of a continuance was not an abuse of discretion.
Id. ¶21, 600 NW2d at 566. Here, Onken had knowledge of V.B. prior to trial
because he had possession of a copy of the videotape and had ample time to pursue
that lead if he so desired. The court did not abuse its discretion by denying the
motion for a continuance.
[¶23.] Similarly, in Hofman, 1997 SD 51, ¶¶15-17, 562 NW2d at 902-03, the
defense argued that the State’s expert’s failure to include knife measurements in
his report was a violation of the discovery order. In allowing the testimony, court
noted that the defense was aware that the “knife was probably going to be focused
on and the knife was available for the defense to look at and have its expert
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examine it[.]” Id. ¶17, 562 NW2d at 902. On appeal, this Court held that the trial
court did not abuse its discretion. Although in Hofman the evidence was a knife as
opposed to the testimony of a witness, the cases are analogous. Onken knew V.B.
potentially existed, knew V.B. was integral to his defense theory, and could have
had V.B. examined prior to trial. Onken, however, did not pursue this before trial
began, and now is claiming the circuit abused its discretion by not granting a
continuance. We disagree. There was no showing that the trial court abused its
discretion by denying Onken’s motion for continuance. Affirmed.
[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, concur.
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