#24499-a-PER CURIAM
2008 SD 21
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CURTIS ALLEN DOSCH, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE SCOTT P. MYREN
Judge
* * * *
LAWRENCE E. LONG
Attorney General
ANDREW KNECHT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
GINA J. ROGERS Attorney for defendant
Aberdeen, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
JANUARY 7, 2008
OPINION FILED 3/19/08
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PER CURIAM
[¶1.] Curtis Dosch (Dosch) appeals his convictions for one count of third
degree burglary, one count of grand theft and ten counts of unauthorized possession
of a controlled substance. We affirm.
FACTS
[¶2.] Sometime during the night of September 23, 2005, an individual broke
through a window in Jones' Drug Store in Aberdeen, South Dakota and stole
various schedule two controlled prescription drugs from a locked drawer inside the
business. Prescription drugs that were taken included: oxycodone; demerol;
methadone; morphine; and adderall.
[¶3.] Sometime during the evening of November 20, 2005, an individual
entered an access panel in the roof of the Medical Center Pharmacy in Aberdeen
and stole various schedule two controlled prescription drugs from that business.
Prescription drugs that were taken included: adderall; methadone; lorazepam;
morphine; and, oxycodone.
[¶4.] The investigation of these incidents led to Dosch who was indicted for:
two counts of third degree burglary; two counts of grand theft; and, ten counts of
unauthorized possession of a controlled substance. The State also filed a part two
habitual offender information alleging Dosch had a prior felony conviction for
possession of a controlled substance.
[¶5.] Dosch's three day jury trial took place in March 2007. At the
conclusion of the trial, the jury returned verdicts finding Dosch guilty of one count
of burglary, one count of grand theft and ten counts of unauthorized possession of a
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controlled substance. 1 Dosch admitted the allegations of the habitual offender
information and was sentenced to: twelve years in the penitentiary for burglary;
ten years, with thirty-two months suspended, for grand theft; and two years for
each unauthorized possession count. All sentences were ordered to be served
consecutively. Dosch appeals.
ISSUE
[¶6.] Did the trial court abuse its discretion in admitting testimony
on population studies from the State's DNA expert?
[¶7.] During the investigation of the Jones' Drug burglary, law enforcement
discovered several blood stains close to the burglar's point of entry and the drawer
from which controlled substances were stolen. A sample of each blood stain was
taken and, pursuant to a warrant, a buccal swab was also obtained from Dosch.
The various samples were submitted to the State Forensic Laboratory in Pierre for
comparison and analysis and the criminalist who performed the study appeared as
the State's DNA expert witness at trial.
[¶8.] The criminalist testified that the DNA from the blood stains was
consistent with the DNA in the swab obtained from Dosch and further testified
concerning the probability of recurrence of the DNA profile in the general
population. In that regard, the criminalist read into the record the conclusion from
her written report that, "[t]he male DNA profile obtained from . . . the stains from
Jones Drug would not be expected to occur more than once among unrelated
individuals in the world population." Dosch's counsel objected to this testimony on
1. Dosch was acquitted of the burglary and grand theft charges relating to the
Medical Center Pharmacy.
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grounds of lack of foundation and the objection was overruled. On cross-
examination, the criminalist testified that population studies provided the
statistical basis for her opinion but that she had no expertise in population studies,
statistics or population genetics. On appeal, Dosch argues that the trial court erred
in admitting the criminalist's testimony because she was not qualified as an expert
in population studies, statistics or genetics and because her conclusion was based
solely on information received from the expertise of others.
Admission of expert testimony is governed by SDCL 19-
15-2 (Rule 702):
If scientific, technical, or otherwise
specialized knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training, or education, may testify thereto in
the form of an opinion or otherwise.
Trial courts retain broad discretion in ruling on the
admissibility of expert opinion. Decisions to admit or
deny opinion evidence will not be reversed absent a clear
showing of abuse of discretion.
State v. Guthrie, 2001 SD 61, ¶ 30, 627 NW2d 401, 414-415 (citations omitted).
SDCL 19-15-3 (Rule 703) on the factual basis for expert opinions provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in
evidence. (emphasis added).
[¶9.] An argument over admission of expert testimony similar to that
presented here was raised in State v. Edelman, 1999 SD 52, 593 NW2d 419. The
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defendant in Edelman was charged with multiple counts of sexual contact with a
minor and rape. During trial, a crimialist specializing in serology provided expert
testimony linking the defendant to the crimes. As part of the State's case, the
criminalist testified from a book concerning the rate of occurrence of a rare blood
type in the Caucasian population. The criminalist also testified that she had not
personally conducted any statistical studies in that area. On appeal, the defendant
argued that there was no foundation to qualify the criminalist as a statistical expert
on population genetics or blood type percentages. This Court concluded:
"the trial court has broad discretion in determining the
qualifications of expert witnesses and in admitting expert
testimony." We find no abuse of discretion by the trial
court in allowing this testimony. [The criminalist] did
establish expert qualifications in serology. Her expertise
in serology would include a knowledge of blood types and
their general distribution throughout the population. We
affirm.
Edelman, 1999 SD 52, ¶ 38, 593 NW2d at 425 (citations omitted).
[¶10.] A similar result was reached by the Virginia Court of Appeals in
Funderburk v. Commonwealth of Virginia, 368 SE2d 290 (VaCtApp 1988). During
the defendant's murder trial in Funderburk, a forensic serologist testified for the
state that blood stains found on the defendant's clothing were consistent with the
victim's blood. Over the defense's objections, the trial court allowed the serologist to
testify concerning the statistical prevalence in the general population of persons
with the victim's blood characteristics. As foundation for her testimony, the
serologist stated that she had consulted published studies to determine the
percentage of each blood type in the general population, but admitted that she was
unable to specifically identify by name which studies or tables she had relied upon.
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The defendant argued on appeal that because the serologist relied on unidentified
studies not in evidence and because she was not an expert in statistics the trial
court erred in allowing her to testify on statistical matters. The Virginia Court
disagreed, concluding:
[T]he studies or tables consulted by [the serologist] to
arrive at the statistical prevalence of [the victim's] blood
type are of a type customarily relied upon and consulted
by those in her field. Such information and knowledge is
within the expertise of the forensic serologist, and the
court did not err [in admitting] her testimony when the
studies or tables [were] not in evidence or not identified.
Funderburk, 368 SE2d at 292 (emphasis added)(citations omitted).
[¶11.] A DNA case more analogous to this matter was considered by the
Indiana Court of Appeals in Patterson v. State of Indiana, 729 NE2d 1035
(IndCtApp 2000). The defendant in Patterson was charged with attempted
burglary. During trial, the State presented testimony from a DNA expert
affirmatively comparing DNA markers extracted from blood stains found at the
crime scene with markers found in the defendant's blood sample. Relying on
statistics about the general population, the expert testified to the rate of occurrence
of these common DNA markers in the Caucasian and Black populations. 2 The
expert derived her statistics from a published study developed by a company that
had sampled a randomly selected group of individuals from around the country. As
to the defendant's contention on appeal that the trial court erred in admitting the
statistical analysis due to lack of an adequate foundation, the Indiana court held:
Because the statistical analysis was based on published,
empirical scientific data, and not mere speculation or
2. The defendant in Patterson was of African American heritage.
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unsubstantiated estimates, the trial court did not abuse
its discretion in finding the evidence reliable and
admissible. See [Davis v. State, 476 NE2d 127, 135
(IndCtApp 1985)](no foundational error in admitting
probability calculation[s] where they were based not on
speculation, but upon accepted scientific tables reporting
the frequency of each genetic marker in the Caucasian
population in Indiana).
Patterson, 729 NE2d at 1040. (emphasis added).
[¶12.] The criminalist in this case provided foundation testimony very much
like that provided by the DNA expert in Patterson. The expert testified concerning
her educational background, job experience, specialized training and membership in
various professional organizations. She further testified regarding her qualification
as an expert in serology and DNA in prior criminal cases. With regard to her work
in this case, the expert testified to the techniques, protocols, procedures, safeguards
and controls employed in performing her DNA analysis and to their general
acceptance in the scientific community. With specific regard to her statistical
analysis, the criminalist testified that her information was based upon population
studies conducted by the FBI and other laboratories and DNA profiling performed
on hundreds of samples from various ethnic groups within the population. The
criminalist testified that the FBI had published its data in several peer review
journals and made it a part of a computer program used by most forensic labs across
the country in calculating frequency of occurrence of certain DNA markers.
[¶13.] Given the detailed foundation testimony provided by the criminalist,
the fact that her statistical analysis was based upon published, empirical scientific
data and not on mere speculation or unsubstantiated estimates, and the fact that
the studies or tables she relied upon were of a type customarily consulted by those
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in her field, the trial court committed no abuse of discretion in ruling that her
testimony was admissible.
[¶14.] Affirmed.
[¶15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER
and MEIERHENRY, Justices, concur.
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