#24949-a-SLZ
2009 SD 87
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA Plaintiff and Appellee,
v.
JAMES BIG CROW, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JEFF W. DAVIS
Judge
* * * *
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ELIZABETH LORINA of
Gonzalez Law Firm
Rapid City, South Dakota Attorneys for defendant
and appellant.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 24, 2009
OPINION FILED 09/23/09
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ZINTER, Justice
[¶1.] James Big Crow was charged with two counts of incestuous sexual
contact involving his niece. After a hearing, the circuit court allowed admission of
acts of incestuous sexual contact involving two other nieces. The court admitted the
other acts evidence to prove a common plan, design or scheme under SDCL 19-12-5
(Rule 404(b)). The jury convicted and Big Crow appeals.
Facts and Procedural History
[¶2.] Big Crow was charged with incestuous sexual contact with his niece,
D.P., in violation of SDCL 22-22-19.1 (2004). 1 According to the State’s evidence, the
abuse occurred when D.P. was approximately eight or nine years-old. At that time,
D.P. was doing tasks for Big Crow in his home. On the first occasion, D.P. was lying
on a couch watching a movie. D.P testified that while she was watching the movie,
Big Crow came into the room naked and began playing a pornographic movie. Big
Crow then called D.P.’s name. She testified that she was uncomfortable because he
was naked, so she pretended to sleep. Big Crow, however, continued to call D.P.’s
1. The 2004 statute provided as follows:
Any person, fourteen years of age or older, who knowingly
engages in sexual contact with another person, other than that
person’s spouse, if the other person is under the age of twenty-
one and is within the degree of consanguinity or affinity within
which marriages are by the laws of this state declared void
pursuant to § 25-1-6, is guilty of a Class 5 felony.
Notwithstanding § 23A-42-2 a charge brought pursuant to this
section may be commenced at any time prior to the time the
victim becomes age twenty-five or within seven years of the
commission of the crime, whichever is longer.
SDCL 22-22-19.1 (2004) (repealed by SD Sess. Laws 2005, ch 120, §
22).
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name and she answered. Big Crow asked D.P. if she liked the pornographic movie,
and she shrugged her shoulders. She then went to the bathroom to be by herself.
While on her way to the bathroom, Big Crow asked her to go into the kitchen and
get a tape measure so she could measure his penis. She obeyed. Big Crow then had
D.P. touch his erect penis.
[¶3.] D.P testified that about a week later, she was at Big Crow’s house
doing dishes when she laid down on the couch to watch television. Big Crow again
came out naked and asked her to give him a “big hug,” which she did. Big Crow
then said he was going to take a shower. While in the bathroom, he told her to
come in. D.P. went into the bathroom and Big Crow said: “Feel this. Feel this.”
Big Crow took her hand, placed it on his erect penis, and moved her hand back and
forth. D.P. testified that the stroking lasted about thirty seconds until she pulled
her hand away. Big Crow subsequently went to his room and began calling D.P.’s
name again, telling her to come to his room. She complied and saw him lying on the
bed naked. Big Crow asked for a hug, and D.P. hugged him for a short time until he
grabbed her and sat her on top of him. She testified that she was wearing clothes,
that she could tell his penis was erect, and that Big Crow began “moving up and
down.”
[¶4.] At trial, Big Crow denied D.P.’s allegations. Rapid City Police
Department Detective Steven Neavill had interviewed Big Crow. Neavill testified
Big Crow admitted that on one occasion he was in his bed naked and he asked D.P.
to give him a hug. Big Crow, however, claimed that he had covers on top of him,
and he denied that he ever had D.P. touch his penis.
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[¶5.] Over Big Crow’s objection, the State presented evidence from two other
alleged victims. M.H., another niece of Big Crow’s, testified that when she was ten
or eleven, she was asleep on the floor at her mother’s home when Big Crow woke
her and placed her hand on top of his pants and started rubbing her hand over his
erect penis. Big Crow denied M.H.’s accusations.
[¶6.] The other alleged victim was B.M., Big Crow’s great-niece. B.M.
testified that when she was fourteen, she was sleeping at her grandmother’s home
when she woke to find Big Crow feeling her between her legs on top of her clothes.
According to B.M., Big Crow also put her hand on his bare, erect penis. Big Crow
testified that he did not have his hand between her legs, but that he may have
placed his hands on her chest or stomach.
[¶7.] The circuit court allowed M.H.’s and B.M.’s testimony under SDCL 19-
12-5 (Rule 404(b)), finding the evidence relevant and not substantially more
prejudicial than probative. With respect to relevance, the court found that Big
Crow had a “scheme, intent, design, [ ] to single out young females for which he did
exert some influence as their [respected] elder and family member. So the type of
the actions that were allegedly performed and the age range of the young ladies at
the time involved are consistent with those sorts of patterns.” With respect to
prejudice, the court found: “This type of evidence is always prejudicial, there is no
question about it. That’s why the balancing test is there to determine whether it’s
more probative to allow it in.” The court continued, “I do feel it meets the
requirements . . . as to Mr. Big Crow’s actions at the time in question.” We review
these rulings under the abuse of discretion standard. State v. Chernotik, 2003 SD
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129, ¶28, 674 NW2d 264, 274. An abuse of discretion is “discretion exercised to an
end or purpose not justified by and clearly against, reason and evidence.” State v.
Machmuller, 2001 SD 82, ¶9, 630 NW2d 495, 498.
Decision
[¶8.] The admission of other acts evidence is governed by SDCL 19-12-5
(Rule 404(b)), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.
In interpreting the “plan” exception in the statute, this Court has followed those
authorities allowing other acts not only where the charged and uncharged acts are
part of a single, continuing conception or plot, but also where the uncharged
misconduct is sufficiently similar to support the inference that they are
manifestations of a common plan, design or scheme to sexually abuse different
victims. See State v. Ondricek, 535 NW2d 872, 875 (SD 1995) (citing State v.
Champagne, 422 NW2d 840, 842 (SD 1988)). A “‘common plan, design or scheme’
refers to a larger continuing plan, scheme or conspiracy of which the present crime
charged at trial is only a part[.]” Id. (quoting Champagne, 422 NW2d at 842).
Although we acknowledged that “‘common plan, design or scheme’ . . . is often
relevant to show motive, intent, knowledge or identity,” we also acknowledged “[b]y
showing that the earlier schemes bore a singular strong resemblance to the pattern
of the offense charged, the government establishes a preexisting plan or design
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which, in turn, tends to show the doing of the act designed.” Id. (citing United
States v. Weidman, 572 F2d 1199, 1202-03 (7thCir 1978)).
[¶9.] Application of the broader “common” plan exception is well recognized
in sex abuse cases. In People v. Ewoldt, 7 Cal4th 380, 393-94, 867 P2d 757, 776
(1994), the California Supreme Court considered conflicting authorities before
rejecting the view that the “plan” exception is limited to a single, continuing
conception or plot. Instead, California followed those authorities holding that
evidence of a defendant’s “uncharged misconduct is relevant where the uncharged
misconduct and the charged offense are sufficiently similar to support the inference
that they are manifestations of a common design or plan.” Id. at 401-02, 867 P2d at
776 (emphasis added). Ewoldt noted:
“The presence of a design or plan to do or not to do a given act
has probative value to show that the act was in fact done or not
done.” (1A Wigmore, Evidence (Tillers rev ed 1983) § 102,
p1666). . . . The existence of such a design or plan also may be
proved circumstantially by evidence that the defendant has
performed acts having “such a concurrence of common features
that the various acts are naturally to be explained as caused by
a general plan of which they are the individual manifestations.”
(2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 304, p249,
italics omitted.)
Id. at 393-94, 867 P2d at 764 (citations omitted). Consequently, “evidence that the
defendant has committed uncharged criminal acts that are similar to the charged
offense may be relevant if these acts demonstrate circumstantially that the
defendant committed the charged offense pursuant to the same design or plan he or
she used in committing the uncharged acts.” Id. at 403, 867 P2d at 770. Ewoldt
concluded that similar acts of uncharged abuse of a stepdaughter were admissible
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to prove the charged act of abuse of another stepdaughter. The California Supreme
Court reasoned:
[E]vidence of defendant’s uncharged misconduct shares
sufficient common features with the charged offenses to support
the inference that both the uncharged misconduct and the
charged offenses are manifestations of a common design or plan.
Such evidence is relevant to establish that defendant committed
the charged offenses in accordance with that plan.
Id. at 403, 867 P2d at 771.
[¶10.] We adopted the Ewoldt reasoning in State v. Wright, noting, “[u]nlike
evidence of uncharged acts used to prove identity, the plan need not be unusual or
distinctive; it need only exist to support the inference that the defendant employed
that plan in committing the charged offense.” 1999 SD 50, ¶18, 593 NW2d 792, 800
(quoting Ewoldt, 7 Cal4th at 403, 867 P2d at 770). Therefore, “[a] plan or design
can be shown circumstantially with evidence that the defendant committed a series
of similar but ‘unconnected’ acts.” Id. ¶19, 593 NW2d at 801 (quoting Ewoldt, 7
Cal4th at 400, 867 P2d at 768-69).
[¶11.] Big Crow, however, argues that “the similarities among [the charged
and uncharged acts] are much more shallow than in other cases where [this] Court
has upheld the relevancy of 404(b) witness testimony,” and that Big Crow’s “abusive
interactions were fundamentally different.” (Appellant’s Br 8, 10) Therefore, he
argues that the evidence of the prior alleged incestuous sexual contact with other
nieces was both irrelevant and more prejudicial than probative. We disagree.
[¶12.] This Court has found similar other acts evidence admissible in
Ondricek, supra, State v. Christopherson, 482 NW2d 298 (SD 1992), and State v.
Perkins, 444 NW2d 34 (SD 1989). In Ondricek, the defendant was charged with
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having sexual contact with his niece, E.P. E.P. testified that when she was six
years-old, she stayed with Ondricek and his wife, and that Ondricek inserted his
penis into her mouth after telling her a bedtime story. When E.P. was eight or nine
years-old, Ondricek removed E.P.’s clothes when he took her swimming and then
proceeded to rub her chest with his hands. E.P. finally recalled a third incident
when, after a fishing or swimming excursion, Ondricek opened her legs and rubbed
her vagina.
[¶13.] That circuit court admitted evidence of acts of sexual contact and rape
with other nieces (D.P. and L.P), which had occurred approximately twenty years
earlier. D.P. testified that when she was six, Ondricek had asked her to go “skinny
dipping” but that she felt uncomfortable after she had removed most of her clothing.
She also testified that Ondricek massaged her around her sides and below her waist
at a family gathering. Finally, when D.P. was twelve, she stayed overnight with
Ondricek and his wife in a tent. On this occasion Ondricek fondled her breasts.
L.P. testified that Ondricek took her skinny dipping when she was four. He made
her touch his penis and attempted to sexually penetrate her. He also rubbed her
vagina on another occasion when she fell off a sled and hurt her groin area. She
finally testified that he had raped her when she was eight, and two years later he
rubbed her breasts and placed her hand on his penis. This Court held that these
other acts with other nieces, occurring in different places under different
circumstances, were sufficiently similar to prove a common plan or scheme.
Ondricek, 535 NW2d at 876-77.
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[¶14.] In Christopherson, 482 NW2d at 299, the defendant was charged with
sexual contact with a minor. According to the fourteen-year-old victim,
Christopherson masturbated D.D. on five occasions while Christopherson was a
guest in the home of D.D.’s parents. D.D. also alleged that Christopherson once
performed oral sex on D.D. The circuit court admitted testimony of three other
adult males who claimed Christopherson had sexual contact with them while they
were minors. One of these witnesses testified that Christopherson molested him
while they were on a camping trip with family and friends. Another stated that
Christopherson initiated sexual contact with him during a camping trip. The third
indicated he was Christopherson’s student at school and that Christopherson
repeatedly molested him when other students were out of the room. We affirmed
the admission of the other acts testimony, finding the evidence was sufficiently
similar to prove a plan or common scheme. Id. at 301. We explained:
The bad act testimony in this case was admissible to prove a
plan or a common scheme to develop situations which allowed
Christopherson to have sexual contact with young boys. First he
would pick out an impressionable boy in his early teens.
Christopherson always picked boys whose parents he knew or
could get friendly with, making it more difficult for the boy to
confide with his parents. Christopherson then used his role as
an authority figure (teacher, supervisor or family friend) to work
the boy into a situation where Christopherson was alone with
him and able to have sexual contact.
Id.
[¶15.] In Perkins, 444 NW2d at 36, the defendant was charged with three
counts of second-degree rape stemming from three incidents of sexual contact with a
female minor, D.J.K. All three incidents occurred when D.J.K. was babysitting or
visiting in Perkins’ home. The circuit court admitted testimony of two other girls
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indicating that Perkins had initiated sexual contact with them when they were
babysitting his children or otherwise visiting his home. We concluded that “[t]he
challenged testimony demonstrat[ed] a consistent pattern of molesting young girls
with whom Perkins was long acquainted, when they were within his home.” Id. at
38. See also State v. Roden, 380 NW2d 669, 670-71 (SD 1986) (holding other acts
testimony showed a common scheme, where defendant’s stepdaughter testified to
incidents of sexual contact which paralleled the complaint made by the present
victim).
[¶16.] Under these authorities, Big Crow’s other acts evidence was relevant
to prove that Big Crow had a common plan, design and scheme to coerce incestuous
sexual contact with all three victims. Big Crow’s other acts tended to prove a
common plan and design to use his status as a family authority figure, when alone
with young nieces who were sleeping or resting in familial homes, to force them to
fondle his erect penis.
[¶17.] Big Crow, however, argues that identity “was never at issue,” and
therefore any evidence regarding alleged similarities between the charged offense
and other offenses was more prejudicial than probative. (Appellant’s Br 13). This
argument is misplaced. The plain text of Rule 404(b) makes no such distinction
between identity, plan and the other exceptions. Further, as the California
Supreme Court explained in this situation involving sex abuse, the other acts
evidence is admitted to prove a common plan or design rather than identity. Where
the “various acts are naturally to be explained as caused by a general plan of which
they are the individual manifestations, . . . [e]vidence of a common design or plan,
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therefore, is not [necessarily] used to prove the defendant’s intent or identity but
rather to prove that the defendant engaged in the conduct alleged to constitute the
charged offense.” Ewoldt, 7 Cal4th at 393-94, 867 P2d at 764 (citations omitted).
See also Wright, 1999 SD 50, ¶19, 593 NW2d at 800-01 (noting that other acts
evidence is admissible for both purposes, the difference being that more similarity is
required when the evidence is offered to prove identity than when it is offered to
prove a common plan or design).
[¶18.] Big Crow further argues that because of the remoteness of the other
acts, their admission was irrelevant and more prejudicial than probative. He notes
that the abuse involving all three victims allegedly occurred in the 1980’s, 1995, and
2001. We have, however, explained why lengthy timeframes of abuse are permitted
in child sex abuse cases:
[W]e have chosen not to set a rigid time limitation when
determining whether bad acts are too remote. “Whether prior
acts are too remote must realistically depend on their nature.”
This case involves allegations of sexual abuse of young children
who were members of the defendant’s family. Taking into
account the shame and fear often experienced by victims of
abuse and the fact that victims of molestation are children,
lengthy delays in reporting abuse, much less testifying to it in
open court, are not surprising. The record indicates Ondricek’s
status as a family member further compounded his victims’
reluctance to come forward; they feared any disclosures would
be disbelieved or would destroy family ties. Additionally,
Ondricek had to create opportunities during which he could
abuse his victims. . . . Consequently, the nature of Ondricek’s
acts, and the manner in which he operated, required his sexual
improprieties be spread out over time.
Ondricek, 535 NW2d at 877 (citations omitted). See also State v. Werner, 482
NW2d 286, 289-90 (SD 1992) (concluding that where a pastor was accused of sexual
contact with five female minors from October 1987 to March 1990, the trial court
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properly admitted testimony indicating that the pastor had sexual contact with
young women of his parish from 1962 to 1990); Christopherson, 482 NW2d at 302
(concluding that testimony regarding sexual contact, which occurred up to
seventeen years before trial, was not too remote).
[¶19.] The circuit court observed that pursuant to South Dakota caselaw,
there is no rigid timeline rule. Ondricek, Werner, and Christopherson all support
this view. Therefore, the years between these other acts were not too remote. We
conclude that the circuit court did not abuse its discretion in finding the other acts
evidence was relevant and that its prejudicial effect did not substantially outweigh
the evidence’s probative value. 2
[¶20.] Big Crow finally appeals the State’s subpoena of M.H., a tribal member
residing within an Indian reservation. Because Big Crow acknowledges that he did
not raise this issue, make an objection, or move to quash the subpoena at trial, he
has waived this issue on appeal. State v. Boston, 2003 SD 71, ¶26, 665 NW2d 100,
109.
[¶21.] Affirmed.
[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,
and SEVERSON, Justices, concur.
2. Big Crow also argues that the circuit court abused its discretion in failing to
give a jury instruction advising the jury that it could not consider Big Crow’s
other acts unless it first determined that Big Crow committed the other acts
by a preponderance of the evidence. Big Crow, however, failed to propose a
jury instruction on this issue, and the issue is waived. See State v. Talarico,
2003 SD 41, ¶33, 661 NW2d 11, 23 (“Failure to object to the jury instruction
or propose an alternative instruction waives the issue for appeal.”).
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